Fronimo v. Fronimo, Unpublished Decision (1-29-2001)
Fronimo v. Fronimo, Unpublished Decision (1-29-2001)
Opinion of the Court
OPINION
On February 14, 1965, appellant, Antoinette Fronimo, and appellee, Paul Fronimo, were married. The parties were granted a divorce on May 20, 1988. On March 27, 2000, appellant filed a motion for relief from judgment claiming there was no provision for the allocation or division of appellee's pension benefits in the final decree. A hearing was held on May 15, 2000. By judgment entry filed same date, the trial court denied the motion. Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:I THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FILED PURSUANT TO CIVIL RULE 60(B)(5) ABSENT AN EVIDENTIARY HEARING.
3. Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.
See, paragraphs two and three of the syllabus.
We concur with the trial court that timeliness is a threshold issue in any motion for relief from judgment. The standard for timeliness for a Civ.R. 60(B) motion is reasonableness. During the hearing held on May 15, 2000, appellant's counsel stated "we believe that the affidavit is sufficient to support her motion and that this matter should be set for evidence." T. at 4. Arguments were then presented to the trial court. No evidence was taken because appellant admitted that her affidavit standing alone was sufficient to support her motion. One could argue the request for an evidentiary hearing was on the issue of pension benefits. The standard for when an evidentiary hearing is necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc. (October 21, 1991), Stark App. No. CA-8553, unreported. In Cogwell, this court held under Civ.R. 60(B), a hearing is not required unless there exists issues supported by evidentiary quality affidavits. The affidavit sub judice is of evidentiary quality and explains the reason for the delay of twelve years in filing for the relief. Appellant appears to have rested on it alone. A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's sound discretion. Griffey v. Rajan (1987),
The judgment of the Court of Common Pleas of Stark County, Ohio, Family Court Division is hereby affirmed.
By Farmer, J. Hoffman, P.J. and Milligan, V.J. concur.
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