Lopez v. Perea, Unpublished Decision (2-7-2000)
Lopez v. Perea, Unpublished Decision (2-7-2000)
Opinion of the Court
OPINION
Appellant Alexander Perea appeals the decision of the Stark County Court of Common Pleas, Juvenile Division, that granted Appellee Stark County Child Support Enforcement Agency's ("CSEA") motion to reopen. The following facts give rise to this appeal. Appellant and Appellee Sarah Lopez were married on January 22, 1970. One child was born as issue of the marriage on January 21, 1971. The parties divorced on August 20, 1971, in the State of Illinois. The court awarded Appellee Lopez sole custody of the parties' minor child. On December 10, 1984, the Stark County Prosecutor's Office, predecessor in interest to Appellee CSEA, filed an URESA complaint on behalf of Appellee Lopez. On January 18, 1985, the trial court ordered appellant to pay child support in the amount of $85 per month commencing February 1, 1985. Appellee Lopez began receiving payments from appellant on March 25, 1985. Appellee Lopez received the last payment from appellant on February 26, 1988. Thereafter, Appellee CSEA contacted appellant on August 8, 1989, concerning his child support obligation. On August 14, 1989, appellant informed Appellee CSEA that his daughter graduated from Sandy Valley High School on June 4, 1989. For unknown reasons, on August 9, 1991, the trial court granted Appellee CSEA's motion to dismiss the URESA complaint because the child was over eighteen, there had been no activity on the case since 1985 and Stark County could not locate appellant. Although this matter had been dismissed, pursuant to a request by the State of Illinois, Appellee CSEA verified appellant's address and contacted appellant concerning his child support arrearage. On May 1, 1995, appellant contacted Appellee CSEA and stated his daughter lived with him prior to graduating from high school and that he had filed for bankruptcy and was unemployed. On January 29, 1997, Appellee CSEA filed an administrative notice with the trial court recommending that appellant pay $100 a month toward his child support arrearage. Appellant requested an administrative mistake-of-fact hearing on February 14, 1997. Appellee CSEA notified the trial court that a mistake-of-fact hearing would be conducted on February 22, 1997. On February 25, 1997, Appellee CSEA filed an administrative notice, with the trial court, which indicated appellant's arrears to be $3,350.76 through December 23, 1996. Appellant disagreed with this amount because he obtained custody of the minor child in 1987. On October 31, 1997, Appellee CSEA filed an administrative notice, with the trial court, recommending that a wage withholding be issued to appellant's employer for $80 per month. On November 1, 1997, appellant sent Appellee CSEA a letter, from Sandy Valley High School, indicating when the minor child entered school. Appellee CSEA filed a notice to the court which recommended that a seek work order be issued against appellant which the trial court did on March 12, 1998. On November 3, 1998, legal counsel for Appellee CSEA discovered the dismissal entry filed in 1991. Accordingly, on February 18, 1999, under case number JU 105961, Appellee CSEA filed a complaint for support orders in an attempt to collect the arrearage under juvenile case number JU 56018. The magistrate dismissed juvenile case number JU 105961, on May 5, 1999, on the basis that an order of support had been issued in juvenile case number JU 56018, which had been dismissed. On May 24, 1999, Appellee CSEA filed a motion to reopen juvenile case number JU 56018. Appellee CSEA amended this motion, on June 15, 1999, to a motion to vacate prior dismissal. On August 10, 1999, the trial court granted Appellee CSEA's motion to reopen juvenile case number JU 56018. Appellant timely filed a notice of appeal and sets forth the following assignment of error for our consideration.I. THE TRIAL COURT ERRED IN SUSTAINING APPELLEE'S MOTION FOR RELIEF FROM JUDGMENT.
If any prong of this requirement is not satisfied, relief shall be denied. Argo at 391. Further "[i]f the material submitted by the movant in support of a motion for relief from judgment contains no operative facts or meager and limited facts and conclusion of law, it will not be an abuse of discretion for the trial court to overrule the motion and refuse to grant a hearing." Adomeit v. Baltimore (1974),
Because the judgment entry dismissing the URESA complaint was filed in 1991, Appellee CSEA was not entitled to relief under grounds (1), (2) or (3) as the motion for relief from judgment was made more than one year after the dismissal was entered by the trial court. We also find ground (4) inapplicable. Although an argument could be made that it is no longer equitable that the judgment should have prospective application, appellee set forth no operative facts, at the hearing, to support this argument. Counsel for Appellee CSEA merely stated that she believed what happened was CSEA was cleaning up open files and instead of dismissing a pending motion the entire case was dismissed. Tr. at 4. Clearly, under this argument, Appellee CSEA should have sought relief under Civ.R. 60(B)(1). Accordingly, we find that Civ.R. 60(B)(4) would not be the appropriate ground for Appellee CSEA's motion for relief from judgment, given that the more specific provisions of Civ.R. 60(B)(1) applied. As to the fifth ground, "* * * any other reason justifying relief from judgment * * *", we find it is not applicable because Civ.R. 60(B)(5) should not be used as a substitute for any of the other more specific provisions of Civ.R. 60(B). Caruso-Ciresi, Inc. v. Lohman (1983),
For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, Stark County, Ohio, is hereby reversed.
By: WISE, J. GWIN, P.J., and FARMER, J., concur.
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