Failure to Disclose Marital Assets Results in Relief From Judgment

Baker v. Baker
2010-Ohio-570
Sixth Appellate District
Erie Count
-Rule 60(B) Motion

Appellant, Daniel P. Baker, appeals a judgement of the Erie County DR Court granting appellee, Kathleen Baker’s motion to vacate judgment pursuant to Civ. R. 60(B). Appellant asserts three assignments of error. I will only discuss one of appellants claims in this post, that appellee’s Civ. R. 60(B) motion should have been dismissed since evidence presented by appellee was not ‘newly discovered’ and was capable of discovery prior to the final hearing in the divorce.

Appellee filed a motion for relief from judgment after she discovered a document from Fidelity Trust Management Company listing two accounts in appellant’s name. Appellee claimed that only one of the accounts was disclosed to her during the divorce proceedings.

A hearing was held on March 9, 2009 where both parties testified. Appellee asserted she had no knowledge of the Fidelity Account and Appellant testified that the account had been disclosed. Specifically, appellant testified that he discussed the Fidelity Account at a meeting with all necessary parties present. Appellant stated that he informed appellee and her counsel that withdrawls were being made on the accounts to pay the marital bills and she agreed with this practice.

After examining the credibility of the parties, the magistrate awarded appellee proceeds from the Fidelity Account.

From the Opinion:

{¶ 8} Civ.R. 60(B), in material part, provides:

{¶ 9} "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 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. * * *"

{¶ 10} In order to be granted relief under Civ.R. 60(B)(2), "the moving party must demonstrate that: (1) the evidence was actually 'newly discovered', that is, it must have been discovered subsequent to trial; (2) the movant exercised due diligence; and (3) the evidence is material, not merely impeaching or cumulative, and that a new trial would probably produce a different result." Cominsky v. Malner, 11th Dist. No. 2002-L-103,4. 2004-Ohio-2202, ¶ 20, citing Holden v. Bureau of Motor Vehicles (1990), 67 Ohio App.3d 531.

{¶ 11} The question of whether relief should be granted or denied is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. An abuse of discretion is more than a mistake of law or an error of judgment, the term connotes that the court's attitude is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{¶ 15} A review of the transcript of the proceedings before the magistrate indicates that his decision finding that appellant had failed to disclose certain assets was based on the credibility of the parties. The trial court relied on the magistrate's assessment of the parties' credibility, and we will do the same, as the magistrate was in the best position to make this assessment. Singh v. Singh, 12th Dist. No. CA2002-08-080, 2003-Ohio-2372.