COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69214 TERESA (NOWAK) IAFIGLIO : : Plaintiff-appellee : Cross-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD R. NOWAK : : Defendant-appellant : Cross-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. D-214670 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: FEBRUARY 22, 1996 APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: HOWARD W. BERNSTEIN, ESQ. STANLEY MORGANSTERN, ESQ. LISA SPANO-HARTING, ESQ. MORGANSTERN, MacADAMS & DWORKEN & BERNSTEIN CO., L.P.A. DEVITO CO., L.P.A. 153 E. Erie Street, #304 The Burgess Building, Suite 400 Painesville, OH 44077 1460 West 6th Street Cleveland, OH 44113 - 2 - DYKE, J.: This appeal arises from the trial court's decision to modify spousal support. Appellee's cross-appeal stems from the court's denial of her Civ.R. 60(B) motion requesting the court to revise the original divorce order to include an equitable division of the parties' personal property. The original journal entry granting the parties' divorce was filed on July 9, 1993. Appellant's motion to modify spousal support was filed on March 1, 1994. Appellee's motion to vacate under Civ.R. 60(B) was filed on March 8, 1994. A hearing was held on both motions on October 27, 1994. The referee recommended that the spousal support be reduced by $500.00 per month, from $1500.00 to $1000.00 per month, due to appellant's temporary unemployment and lessened income. According to the referee's report, appellee clearly had a continuing need for spousal support. The referee noted on appellee's motion to vacate that the court had not reserved jurisdiction to later apportion the parties' personal property. The referee indicated that this issue was not properly before the trial court, but should have been raised on appeal. The domestic relations judge affirmed the findings and conclusions of the referee, issuing a journal entry on June 1, 1995. Appellant filed his appeal on June 28th. Appellee filed her cross-appeal on July 7th. - 3 - CROSS ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLEE, IN DENYING THE MOTION TO VACATE UNDER CIV. R. 60(B) WHERE PERSONAL PROPERTY WAS NEVER DIVIDED IN A JUDGMENT ENTRY BY THE COURT. Appellee's assignment of error is dispositive of this appeal, therefore we will review the merits of her argument first. Appellee argues that the trial court erred in denying her motion for a vacation of the original order of divorce under Civ.R. 60(B). Appellee moved for the vacation due to the fact that the original order failed to equitably divide the parties' personal property. The court is required by R.C. 3105.17.1(B) to divide the marital and personal property of the parties. Appellant's argument is well taken. Although appellee could have instituted a direct appeal from the original order of divorce to effectuate a complete division of the property, we do not find that she was precluded from challenging the original order through the Civ.R. 60(B) motion. The policies which prohibit a party from substituting a direct appeal with a 60(B) motion are not at issue under the facts of this case. Appellee averred that she attempted to negotiate a settlement with appellant to divide the property he retained in the former marital home. Appellee further averred that she was unable to retrieve even her own personal effects, such as her clothing. Under these circumstances, we find that appellee is not precluded from bringing a motion to vacate where she did not file a direct appeal. - 4 - To prevail on a motion brought under Civ. R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ. R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. Under R.C. 3105.17.1(B) the trial court was required to divide the marital and separate property of the parties equitably between the spouses. Appellee has demonstrated that she has a meritorious claim by showing that the trial court failed to divide the parties' personal property. Appellee is entitled to relief under the catchall provision of Civ.R. 60(B)(5), where a reason exists justifying relief from judgment. Finally, the motion was timely. The original judgment was entered on July 9, 1993. Appellee's motion was filed on March 8, 1994. Eight months is well within a reasonable period of time for filing a motion to vacate. Appellee's cross-assignment of error is sustained. The trial court erred in denying her Civ.R. 60(B) motion. CROSS-ASSIGNMENT OF ERROR II IN THE ALTERNATIVE, THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT PLAINTIFF'S MOTION TO VACATE UNDER CIV. R. 60(A) IN AN EFFORT TO COMPLETE THE JUDGMENT ENTRY. Appellee's second cross-assignment of error is rendered moot by our disposition of the first cross-assignment of error. We decline to review this argument's merits. App.R. 12(A)(1)(c). - 5 - I THE TRIAL COURT ERRED IN ITS DETERMINATION OF SPOUSAL SUPPORT. Appellant asserts that the trial court's modification of the spousal support order from $1,500 per month to $1,000 per month was insufficient given his financial circumstances. R.C. 3105.18(B) gives a trial court the discretion to award spousal support "after the court determines the division or disbursement of property under section 3105.171 of the Revised Code." Because we determined that the court failed to complete the requisite division of the parties' property, we find that the amount of support must be re-determined after the property division is made by the trial court. At this time a review of the spousal support award would be premature. Appellant's assignment of error is dismissed. The trial court's denial of appellee's motion to vacate is reversed and the cause of action is remanded for a determination by the court of an equitable division of the parties' personal property and a determination of the spousal support award. - 6 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellee recover from appellant her costs herein taxed. It is ordered that a special mandate be sent to said 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. JAMES D. SWEENEY, P.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, .