It is not unusual for a divorcing party to be dissatisfied with either a judge's decision or a settlement incorporated into a decree of divorce. A timely appeal to a court of appeals is provided for as a matter of right. The reviewing court will consider alleged errors of fact and law based on the record made in the trial court. An appeal to the Ohio Supreme court from an appellate court is not granted as a matter of right, but rather only upon the Supreme Court's decision to accept the appeal because of constitutional or other issues of great general public interest or because of conflicting decisions in the appellate districts.
The Ohio Rules of Civil Procedure provide for a request to vacate, or set aside, a final judgment or portion thereof. The procedure known as relief from judgment, requires a timely filing of sufficient pleadings in the court which rendered the judgment. Relief from judgment is not an alternative to an appeal and can not be used as a substitute for an appeal. The denial or granting of the relief, may be the subject of an appeal.
A request for relief from judgment is initiated by the filing of a motion with supporting affidavits and usually, a memorandum of law and argument. The motion must be properly served in accordance with the civil rules. The party against whom the motion is filed is given an opportunity to respond in writing. The trial court, may or may not, within its discretion, grant an oral hearing on the motion. The denial to grant a hearing may lead to claimed error on appeal. Often times, an oral hearing is denied simply because the court finds the motion to be untimely.
There are five enumerated grounds for granting relief from judgment in addition to a claim of clerical, non substantive mistake. Those grounds are: (1) mistake, inadvertence, surprise or excusable neglect, (2) newly discovered evidence, (3) fraud of the other party, such as fraudulent testimony, (4) satisfaction, release or discharge of the judgment, or the judgment should no longer have prospective application, (5) any other reasons justifying relief.
The first three grounds require that the motion be filed no later than one year from the entry of judgment. The last two must be filed within a reasonable time, which may be longer or shorter than the one year from judgment. The reasons for delay in filing the motion should be set forth for the court's consideration.
Issues that can be raised in relief from judgment motions include those affecting parental rights, parentage, visitation, division of property, child support, spousal support, retirement benefits, settlement agreements and the divorce itself.
Relief from judgment motions and appeals from them provide a great deal of case law interpreting the civil rule and its application. I intend to explore each of the stated grounds and decisions relating to them in future articles.
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