COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68405 ROBERT A. LACEY : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CLARA B. LACEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. CP D-217310 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOSEPH STAFFORD, ESQ. DEAN A. COLOVAS, ESQ. 310 Lakeside Avenue West 55 Public Square, Suite 2200 100 Courthouse Square Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - DYKE, J.: Robert Lacey filed a complaint for divorce on March 25, 1992, after more than thirty years of marriage to appellant. The parties filed pretrial statements and affidavits, delineating their assets, debts, incomes and expenses. Appellee filed a statement from the City of Cleveland on July 24, 1992 which indicated that he had retired in 1988. A copy of appellee's PERS contribution statement was attached. However, the amount of his final contribution is illegible on this copy contained in the record. Appellee indicated on his pretrial statement that his pension was currently in payout status. In September of 1993 the parties executed a separation agreement whereby the parties purported to divide their assets and financial liabilities. The marital home was to be sold and the proceeds divided. Appellant agreed to pay appellee $8,000 from her share of the proceeds. Each of the parties was to keep his or her own vehicle. Appellant retained the real estate she had inherited from her father and the household furnishings from the marital home. Appellant agreed to pay appellee $6,000 from her liquidated pension. Appellee agreed to pay appellant $400 per month for sixty months in spousal support. The November 11, 1993 journal entry incorporated the parties' agreement. Due to appellant's apparent lack of cooperation in the sale of the marital residence, appellee obtained the court's order vesting title of the property in his name. Appellant filed a motion for - 3 - relief from this judgment in September 1994. A subsequent motion to show cause filed by appellee was consolidated with appellant's relief from judgment motion. On October 12, 1994 both parties agreed to dismiss their pending motions without prejudice. Appellee agreed to give appellant a $2500 credit toward funds owed by her as part of the agreement. On November 10, 1994 appellant filed a second motion for relief from the original judgment issued on November 11, 1993, claiming that appellee had failed to disclose the proper amount of his pension. Appellee filed a brief in opposition to appellant's motion. The trial court denied appellant's motion for relief from judgment on December 15, 1994. Appellant filed a timely notice of appeal from this denial and asserts the following three assignments of error. I THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING WITHOUT HEARING APPELLANT'S MOTION TO VACATE JUDGMENT FILED PURSUANT TO RULE 60(B) OF THE OHIO RULES OF CIVIL PROCEDURE WHEN THE FACE OF THE ENTIRE RECORD CONTAINED FACTUAL INFORMATION SUPPORTING APPELLANT'S CONTENTION THAT THE MOTION SHOULD BE GRANTED. Appellant argues that her motion was supported by the conspicuous absence of appellee's pension source in the record. Appellant's argument is not well taken. This Court has held that: The trial court has discretion in ruling on a motion for relief from judgment pursuant to Civ. R. 60(B). Unless the movant's affidavit or other evidentiary materials demonstrate grounds for the motion, the trial court does not abuse its discretion by denying the motion - 4 - without a hearing. The evidentiary materials must present "operative facts" and not mere allegations to justify relief. Hornyak v. Brooks (1984), 16 Ohio App.3d 105, at paragraph one of the syllabus. Appellant's claim that the amount of appellee's pension was conspicuously absent from the record is not supported where the record contains a pretrial statement from appellee indicating that his pension is in payout status, a statement from the City of Cleveland indicating the final amount of PERS contribution by appellee and clear references to the parties' entitlements to their own pension or retirement accounts in the journal entry approving the parties' separation agreement. Furthermore, appellant can not be heard to complain that she did not know about appellee's pension when it was a source of income upon which she relied for approximately four years before appellee filed for divorce. Appellant's motion for relief from the judgment did not contain operative facts which would warrant such relief. Therefore, the trial court did not abuse its discretion in dismissing the motion without a hearing. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO MAKE A FACTUAL DETERMINATION AS TO THE REASONS FOR ITS DENIAL OF APPELLANT'S MOTION WITHOUT HEARING. Appellant argues that she was entitled to a factual determination for the court's denial of her motion under U.A.P. - 5 - Columbus JV326132 v. Plum (1986), 27 Ohio App.3d 293. Appellant's reliance upon this case is misplaced. The Franklin County Court of Appeals held: Where grounds for relief from judgment appear on the face of the record, a court abuses its discretion and may not overrule the motion unless it first makes a factual determination of the alleged grounds for relief adverse to the movant. Matson v. Marks (1972), 32 Ohio App.2d 319 [61 O.O.2d 476], paragraph five of the syllabus. U.A.P. Columbus JV326132 v. Plum (1986), 27 Ohio App.3d 293, at paragraph one of the syllabus. The trial court in this instance was under no duty to render a factual determination where the grounds for relief from judgment do not appear on the record. Appellant's second assignment of error is overruled. III THE TRIAL COURT COMMITTED ERROR CONTRA TO ORCP RULE 60(B)(3) AND (5) BY NOT VOIDING AN AGREED ENTRY OR PORTIONS THEREOF WHICH OMITTED ASSETS WHICH WERE BOTH SUBSTANTIAL IN RELATIVE AMOUNT AND MATERIAL TO AN INFORMED AND DELIBERATE AGREEMENT ABOUT AN EQUITABLE DIVISION OF PROPERTY. Appellant argues under her final assignment of error that the court erred in failing to void the agreed entry, based as it was upon an agreement which omitted appellee's pension. Appellant's argument is not well taken. Having thoroughly reviewed the record and found evidence of appellee's pension being considered therein, we can not find that the trial court was in error in failing to void the parties' agreed upon entry. Appellant signed a separation agreement which entitled - 6 - each party to retain his or her retirement or pension, except that appellant was to give appellee $6,000 from her liquidated account. We can only assume that appellant agreed to this provision because she was receiving a greater proportion of some other marital asset. Nevertheless, appellant did agree to this division. There is no operative fact asserted by appellant which would support her assertion that appellee's pension was somehow completely excluded from the negotiations of the parties. Appellant's third assignment of error is overruled. The trial court's denial of appellant's motion for relief from judgment is affirmed. - 7 - It is ordered that appellee recover of appellant his 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 Court of Common Pleas, Domestic Relations Division 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. JAMES D. SWEENEY, J., AND PORTER, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .