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McWilliams v. McWilliams

Court of Appeals of Ohio, Ninth District, Summit

June 19, 2019

TERRY L. MCWILLIAMS Appellee
v.
WALTER R. MCWILLIAMS Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DR-2017-05-1420

          ROBERT ROE FOX, Attorney at Law, for Appellant.

          JOY S. WAGNER, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN, JUDGE.

         {¶1} Walter McWilliams ("Husband") appeals from the judgment of the Summit County Court of Common Pleas, Domestic Relations Division, which denied his motion for relief from the final Decree of Divorce. For the following reasons, this Court affirms.

         I.

         {¶2} The McWilliamses were married in 1985 and have four adult children. Terry McWilliams ("Wife") filed a complaint for divorce in May 2017. Wife served Husband via certified mail with the complaint and other filings and orders, including an order scheduling an uncontested divorce hearing on August 22, 2017. Husband appeared pro se and Wife appeared with counsel at that hearing. In accordance with the local rule, the trial court converted the uncontested divorce hearing to a pretrial. Following the pretrial, Husband, pro se, filed a waiver of service of the complaint, but failed to file an answer.

         {¶3} A second pretrial was scheduled for November 8, 2017. The day before this pretrial, Wife filed a motion to continue the pretrial asserting that 1) Husband had contacted Wife's attorney and indicated that he was unable to attend the pretrial due to his recent discharge from the hospital, and 2) the parties were close to reaching an agreement. The motion was granted and a new pretrial scheduled for March 7, 2018.

         {¶4} In lieu of attending the pretrial on November 8, 2017, Wife drove Husband to her attorney's office where a separation agreement was executed by both of them. A week later, Wife filed a motion to accelerate the final hearing date based upon the executed separation agreement. The trial court granted Wife's motion and scheduled an uncontested divorce hearing on December 12, 2017. Husband did not appear at this hearing, while Wife and her counsel did. The same day, the trial court granted Wife a divorce and approved and incorporated the terms of the separation agreement into the final Decree of Divorce. The clerk of courts issued a Civ.R. 58(B) notice, along with a certified copy of the final Decree of Divorce, by regular mail to Husband on December 12, 2017. No appeal was taken from the final Decree of Divorce.

         {¶5} Three months later Husband, through counsel, filed a motion for relief from judgment. The trial court held a hearing and orally denied Husband's Civ.R. 60(B) motion. In its subsequent written decision, the trial court determined that while the motion was timely, Husband failed to establish that he was entitled to relief under one of the provisions of Civ.R. 60(B). Husband has timely appealed, assigning two assignments of error. To facilitate the analysis, this Court will consolidate the assignments of error.

         II.

         ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT [HUSBAND'S] MOTION FOR RELIEF FROM ...


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