COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59229 : BARBARA BUEHLER : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DAVID BUEHLER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 21, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division of Common Pleas Court Case No. D183587 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: PATRICK R. KELLY ALBERT E. FOWERBAUGH 1504 Hanna Building 818 National City Ban 1422 Euclid Avenue Cleveland, Ohio 44114 Cleveland, Ohio 44115 -2- PATRICIA A. BLACKMON, J.: David F. Buehler, defendant-appellant, timely appeals the trial court's decision that denied his motion for relief from judgment, which was filed pursuant to Civ. R. 60(B) and denied on January 5, 1990. Appellant fails to timely appeal the trial court's decision that adopted the typewritten separation agreement as the agreement of the parties. Therefore, we confine this opinion solely to the issues raised with regards to the denial of the Civ. R. 60(B) motion for relief from judgment. In his 60(B) motion, appellant challenges the trial court's decision that upheld a handwritten agreement between appellant and Barbara A. Buehler, plaintiff-appellee. The agreement contains terms that disposed of the parties marital assets, and further stipulates that the handwritten agreement would be incorporated into a final separation agreement to be agreed and signed by the parties at some future date. The issue before this court is whether the trial court erred in not granting the motion for relief from judgment. Because we find that the trial court did not err, we affirm. The facts in this showed that in January of 1988 appellee filed a complaint for divorce, and appellant countered with an answer and counterclaim for divorce. Thereafter, the case was set for trial. On January 26, 1989, the parties executed a "handwritten agreement" to be incorporated into a separation agreement. A divorce decree judgment entry with an attached separation -3- agreement was filed on May 17, 1989. The attached separation agreement was a "typewritten agreement." It incorporated the terms of the handwritten agreement and included some additional terms. In the judgment entry, the trial court represented that the typewritten agreement was the separation agreement of the parties. The typewritten agreement was signed by appellee, but not by appellant. There was no transcript in the record of the proceedings that ultimately led the trial court to its decision that the typewritten agreement was the separation agreement. In fact it does not appear from the record that a hearing was conducted by the trial court. On May 31, 1989, appellant filed a motion for relief from the divorce decree judgment and alleged two grounds in support of his motion. He argued that the motion should be granted because the language in the handwritten document indicated the following: "This document will be incorporated in a final separation agreement to be agreed and signed by the parties." This language appellant argued was clear evidence that no separation agreement existed between the parties. He also supported this argument by pointing out the difference between the handwritten argument and those of the typewritten agreement. Appellant also claimed that his income is substantially less than he thought it would be when he entered into the handwritten agreement. The evidentiary materials in support of this contention were two letters from appellant's employer. -4- Appellant argued that the variations in the two different incomes were because of misinformation that he had received from his employer. On January 5, 1990, the trial court denied the 60(B) motion on the grounds that appellant had failed to offer proof. On February 2, 1990, appellant filed a notice of appeal. This court is, first, compelled to address the issue of jurisdiction because appellant purports to timely appeal the divorce decree judgment entry and the denial of the motion for relief from judgment pursuant to Civil R. 60(B). App. R. 4(A) requires that civil appeals "shall be filed within thirty days from date of the entry of judgment or order appealed from." A Civ. R. 60(B) motion to vacate may not be used as a substitute for a timely notice of appeal. Bosco v. Euclid (1974), 38 Ohio App. 2d 40. See also, Zambory v. Zambory (June 13, 1985), Cuyahoga App. No. 49262, unreported. The failure to timely file a notice appeal from a final judgment in a civil case is a jurisdictional bar to appeal. Id. It is clear from the record that appellant failed to timely file a notice of appeal of the trial court's decision that granted the divorce on May 17, 1989. The only notice of appeal that was filed was on February 2, 1990, which challenges the denial of the R. 60(B) motion. Therefore, the only judgment this court has jurisdiction to review is the denial of the motion for relief from judgment. Appellant assigns two errors on appeal: -5- WHETHER THERE WAS ANY BASIS FOR THE COURT ORIGINALLY GRANTING ITS JUDGMENT? WHETHER THE TYPED JUDGMENT ENTRY IS AT SUCH VARIANCE WITH THE HANDWRITTEN AGREEMENT THAT IT CANNOT SERVE AS A JUDGMENT OF THE COURT? The threshold issue is whether the appellant's motion contains such unusual or extraordinary operative facts to warrant the application of Civ. R. 60(B). In order to resolve this question and determine if the court abused its discretion in denying the motion, we must apply the facts to the standard set forth in GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St. 2d 146. In that case, the Supreme Court decided that a movant must demonstrate the following in order to prevail on a 60(B) motion: (1) the party has a meritorious defense or claim, (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B) and, (3) the motion is timely made. Additionally, this court has consistently held that such a motion must be supported by evidentiary materials and operative facts which demonstrate that the moving party is entitled to relief and not mere allegations or conclusions. E.g. Adomeit v. Baltimore (1974), 39 Ohio App. 2d 97; East Ohio Gas Co. v. Walker (1978), 59 Ohio App. 2d 216. If the moving party fails to support his motion with evidentiary materials and sufficient operative facts, he is not entitled to a hearing, much less relief from judgment. Id. at 103. See also, Moses Macklin Realty Co. v. Davis (Aug. 1, 1991), Cuyahoga App. No. 57861, unreported. -6- In the instant case, neither argument meets the requirement of a Civ. R. 60(B) motion. Although the motion for relief from judgment was timely, it did not demonstrate or even attempt to state that appellant was entitled to relief under one of the grounds stated in Civ. R. 60(B). Furthermore, there is no affidavit nor any other evidentiary materials to support the proposition that the written agreement attached as Exhibit A to the divorce decree judgment entry was not the separation agreement of the appellant. The fact that it did not bear his signature is not enough. See, Burley v. Burley (June 18, 1981), Cuyahoga App. No. 41913, unreported. (where allegations of mistake in the separation agreement were not supported by the record). Therefore, appellant failed to sustain his burden under Civ. R. 60(B) to provide proof that there was no separation agreement, or that the variances in the divorce decree were not by agree- ment. See Adomeit, supra. Appellant's two assignments of error are not well taken. Judgment affirmed. -7- It is ordered that appellee recover of appellant her costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. NAHRA, P.J., and ANN MCMANAMON, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .