[Cite as Mosier v. Mosier, 2013-Ohio-3024.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DONNA E. MOSIER 

 Plaintiff-Appellee 

-vsMICHAEL L. MOSIER 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Patricia A. Delaney, J. 

Hon. Craig R. Baldwin, J. 

Case No. 12CA101 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of 

Common Pleas, Domestic Relations 

Division Case No. 01-D-624 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: July 11, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

THOMAS L. COLE HOWARD C. WHITCOMB, III. 

Weldon, Huston, & Keyser, L.L.P. 127 West Perry Street, Suite 105 

76 N. Mulberry Street Port Clinton, OH 43452 

Mansfield, OH 44902 
Richland County, Case No. 12CA101 2

Hoffman, P.J. 

{¶1} Defendant-appellant Michael L. Mosier appeals the September 10, 2012 

Judgment Entry entered by the Richland County Court of Common Pleas, Domestic 

Relations Division, which overruled his objections to the magistrate’s June 20, 2012 

decision, and approved and adopted the decision with the exception of the social 

security offset as the order of the court. Plaintiff-appellee is Donna E. Mosier, nka 

Eaton. 

STATEMENT OF THE CASE AND FACTS 

{¶2} The parties were divorced via Judgment Entry/Decree of Divorce filed 

March 6, 2003. As part of the divorce, the trial court awarded Appellee: 

 Fifty percent (50%) of the coverture portion of [Appellant’s] Air 

Force and Ohio National Guard Retirement Benefits vested as of 

December 31, 2002. The appropriate Social Security offset to be 

calculated by Pension Evaluators and the Qualified Domestic Relations 

Order to effect said award to be prepared by Pension Evaluators with the 

cost to be equally divided between [Appellee and Appellant]. The 

Qualified Order to contain the appropriate survivorship benefits as to that 

portion awarded to the alternate Payee. 

{¶3} A Military Qualifying Court Order (“MQCO”) signed by the parties, their 

counsel and the presiding judge was filed on April 17, 2006. The MQCO indicated 

Appellant was receiving a military retirement benefit from the United States Air Force 

and Appellee had an interest therein. Appellee was entitled to receive $924.71/month 

as her portion of the retirement benefits. 
Richland County, Case No. 12CA101 3

{¶4} Appellant began receiving disability benefits on November 1, 2007. As a 

result, Appellee’s portion of the retirement benefits was reduced to $740.29/month. 

Appellee filed a motion in contempt based upon Appellant’s failure to comply with the 

MQCO on November 27, 2007. Specifically, Appellee asserted Appellant should be 

held in contempt for failing to directly pay her $184.42/month to neutralize the effect of 

Appellant’s receipt of disability benefits. Following a hearing, the magistrate found 

Appellant in contempt. The magistrate imposed a jail sentence of ten-days but provided 

Appellant with the opportunity to purge the contempt by satisfying three conditions. 

Appellant filed objections to the magistrate’s decision, which the trial court overruled. 

The trial court approved and adopted the magistrate’s decision as order of the court. 

{¶5} On July 10, 2008, Appellee filed a motion asking the trial court to impose 

the contempt order. Following a hearing, the magistrate found Appellant had not 

demonstrated any defense for his failure to satisfy the second and third purge 

conditions. The magistrate imposed the ten-day jail sentence upon Appellant. 

Appellant filed objections to the magistrate’s decision, which the trial court overruled. 

Appellant filed an appeal to this Court, which affirmed the trial court’s decision. Mosier 

v. Mosier, 5th Dist. No. 2008 CA 0103, 2009 -Ohio- 1195. 

{¶6} On January 9, 2012, Appellant filed a motion for relief from judgment 

pursuant to Civ. R. 60(B)(4) and (5). The parties stipulated the motion would be 

submitted on the briefs and no further evidence would be heard. Via Decision filed June 

20, 2012, the magistrate denied Appellant’s motion for relief from judgment. Appellant 

filed objections. The trial court overruled Appellant’s objections and adopted the 

magistrate’s decision with one exception: 
Richland County, Case No. 12CA101 4

 The Court does not adopt the Magistrate’s finding that the military 

order failed to include an appropriate social security offset as required by 

the Decree. There was insufficient, if any, evidence submitted by 

[Appellant] to demonstrate that Pension Evaluators did not calculate the 

appropriate Social Security [sic] offset. There was also insufficient, if any, 

evidence submitted to demonstrate that the appropriate social security 

offset was anything other than zero. September 10, 2012 Judgment Entry 

at 25. 

{¶7} It is from this judgment entry Appellant appeals, assigning as error: 

{¶8} “I. THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’S 

CIV.R. 60(B) MOTION WAS INCONSISTENT AND CONTRARY TO CURRENT CASE 

LAW AND IS UNSUPPORTED BY SUFFICIENT CREDIBLE FACTS AND/OR THE 

MANIFEST WEIGHT OF THE EVIDENCE PRESENTED TO THE TRIAL COURT FOR 

REVIEW.” 

I 

{¶9} Civ. R. 60(B) provides: 

 On motion and upon such terms as are just, the court may relieve a 

party or his legal representative from a final judgment, order or proceeding 

for the following reasons: (1) mistake, inadvertence, surprise or excusable 

neglect; (2) newly discovered evidence which by due diligence could not 

have been discovered in time to move for a new trial under Rule 59(B); (3) 

fraud (whether heretofore denominated intrinsic or extrinsic), 

misrepresentation or other misconduct of an adverse party; (4) the 
Richland County, Case No. 12CA101 5

judgment has been satisfied, released or discharged, or a prior judgment 

upon which it is based has been reversed or otherwise vacated, or it is no 

longer equitable that the judgment should have prospective application; or 

(5) any other reason justifying relief from the judgment. The motion shall 

be made within a reasonable time, and for reasons (1), (2) and (3) not 

more than one year after the judgment, order or proceeding was entered 

or taken. A motion under this subdivision (B) does not affect the finality of 

a judgment or suspend its operation. 

{¶10} A movant for relief from judgment under Civ. R. 60(B) must demonstrate: 

(1) the party has a meritorious defense or claim to present if relief is granted; (2) the 

party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1)-(5); and (3) 

the motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC 

Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the 

syllabus. The movant must submit factual material with his motion which demonstrates 

grounds which, if true, would constitute a defense to the action. Matson v. Marks, 32 

Ohio App.2d 319, 327, 291 N.E.2d 491 (1972). The motion must be supported with 

evidence of at least affidavit quality. East Ohio Gas v. Walker, 59 Ohio App.2d 216, 220, 

394 N.E.2d 348 (1978). Where the motion and supporting evidence contain sufficient 

allegations of operative facts which would support a meritorious defense to the 

judgment, the court must assign the matter for evidentiary hearing. BancOhio Natl. Bank 

v. Schiesswohl, 51 Ohio App.3d 130, 554 N.E.2d 1362 (1988), paragraph one of the 

syllabus, 51 Ohio App.3d 130, 554 N.E.2d 1362. Bare assertions of fact do not entitle 
Richland County, Case No. 12CA101 6

the movant to relief or to a hearing on the motion to set aside the judgment. Mount 

Vernon Farmer's Exchange v. McKee, 5th Dist. App. No. 98-CA-27 (Citations omitted). 

{¶11} The question of whether a motion for relief from judgment should be 

granted is entrusted to the sound discretion of the trial court and will not be disturbed on 

appeal absent an abuse of discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172 

(1994). 

{¶12} Assuming, arguendo, Appellant is able to establish the first two prongs of 

the GTE Automatic Elec. test, we, nonetheless, find the trial court did not abuse its 

discretion in denying the motion as such was not made within a reasonable time. 

Appellant filed his motion for relief from judgment almost six years after the filing of the 

MQCO. Appellee filed her motion in contempt on November 27, 2007. At that point, 

Appellant should have been aware of any alleged inconsistencies between the divorce 

decree and the MQCO. 

{¶13} Appellant’s sole assignment of error is overruled. 

{¶14} The judgment of the Richland County Court of Common Pleas, Domestic 

Relations Division, is affirmed. 

By: Hoffman, P.J. 

Delaney, J. and 

Baldwin, J. concur ___________________________________ 

 HON. WILLIAM B. HOFFMAN 

 ___________________________________ 

 HON. PATRICIA A. DELANEY 

 ___________________________________ 

 HON. CRAIG R. BALDWIN 
Richland County, Case No. 12CA101 7

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DONNA E. MOSIER : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

MICHAEL L. MOSIER : 

 : 

 Defendant-Appellant : Case No. 12CA101 

 For the reason stated in our accompanying Opinion, the judgment of the 

Richland County Court of Common Pleas, Domestic Relations Division, is affirmed. 

Costs assessed to Appellant. 

 ___________________________________ 

 HON. WILLIAM B. HOFFMAN 

 ___________________________________ 

 HON. PATRICIA A. DELANEY 

 ___________________________________ 

 HON. CRAIG R. BALDWIN