COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71005 : ACCELERATED DOCKET SHARYL A. SCHMUHL : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION RICHARD G. SCHMUHL, JR. : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Domestic Relations Division of Cuyahoga County Common Pleas Court Case No. D-226551 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: PATRICIA A. KARLE, ESQ. RICHARD G. SCHMUHL, JR., 10561 Ridgewater Drive pro se Painesville, Ohio 44077 P.O. Box 24067 Cleveland, Ohio 44124-0067 SANDRA L. WALKER, ESQ. Assistant County Prosecutor P.O. Box 93923 Cleveland, Ohio 44101-5923 - 2 - PER CURIAM: This matter came to be heard upon the accelerated calendar of the court pursuant to App.R. 11.1 and Local R. 25, which eliminates delay and expense and allows the statement of reasons for the court's decision to be in brief and conclusionary form. Defendant-husband appeals from the trial court's decision denying his motion to modify. Husband and wife were granted a divorce on March 27, 1995. The divorce decree divided the marital assets and liabilities between the parties. This court affirmed the judgment of the trial court. Schmuhl v. Schmuhl (Feb. 15, 1996), Cuyahoga App. No. 68897, unreported. Addressing the disposition of marital debt, this court stated as follows: In his ninth and tenth assignments of error, the husband complains the trial court erred by failing to consider the debt he incurred in maintaining the marital residence and erred by transmuting into marital property $15,000 of his money used as a downpayment on the marital residence. We find the trial court did not abuse its discretion on either point because the husband presented no evidence of his debt or a downpayment on the marital residence. He left the hearing while the wife was presenting her case and failed to return. In essence, he abandoned his right to claim error in this court. Stores Realty Co. v. Cleveland, supra. The ninth and tenth assignments are overruled. After this opinion was journalized, husband, on March 19, 1996, filed a motion for relief from judgment with the domestic relations court. In this motion, husband sought to modify the original judgment entry of divorce. In support of his motion, husband alleged that the wife lied about or failed to report significant aspects of the parties' marital debt including, inter - 3 - alia, a furniture bill, a bill for legal services, credit card withdrawals, and tax liabilities incurred by the husband. To verify these liabilities, husband attached various bills and statements, all dated from 1994 or earlier. On June 25, 1996, the trial court denied husband's motion for relief from judgment. Defendant timely appealed raising two assignments which state as follows: I. THE TRIAL COURT ERRED IN FAILING TO UPHOLD ENFORCEABLE CONTRACTS MADE BY THE PARTIES WITHIN THE MARRIAGE ON TRIAL, AND THUS, HAS CAUSED INJURY AND DAMAGE TO THE DEFENDANT-APPELLANT. II. THE TRAIL [SIC] COURT ERRED IN FAILING TO CHARGE THE PERSON LIABLE FOR THE INJURY UPON WHICH THE ACTION IS BASED. In order to prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate the following: (1) movant has a meritorious defense or claim to present if relief is granted; (2) movant 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. A motion for relief from judgment will be overruled if these three elements are not satisfied. Rose Chevrolet, Inc. V. Adams (1988), 36 Ohio St.3d 17. A trial court's decision to deny a 60(B) motion is reviewed under an abuse of discretion standard. Adomeit v. Baltimore (1974), 39 Ohio App.2d 97. Finally, a party - 4 - may not use a Civ.R. 60(B) motion as a substitute for appeal. Doe v. Trumbull Cty. Children Serv. Bd. (1986), 28 Ohio St.3d 128. In the case at bar, the trial court did not abuse its discretion when it denied husband's motion for relief from judgment because (1) the claims raised by husband in the motion are barred by the doctrine of res judicata and (2) the motion was not timely. RES JUDICATA The doctrine of res judicata provides that "[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus. In other words, a final judgment or decree between the parties in litigation is conclusive as to all claims which were or might have been litigated in the first lawsuit. Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69. Therefore, "res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it." National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, at 62. The Supreme Court explained the rationale for this rule. Now what is the effect of their lack of diligence and the resulting dismissal by the Court of Appeals? Paragraph four of the syllabus in the case of Pollock v. Cohen, 32 Ohio St., 514, states: "Where a case is brought a second time on the same record, by petition in error, all questions on such record will be deemed settled by the first adjudication. This rule extends not only to questions actually presented, but to all questions existing on the record that might have been presented for adjudication in the first petition in error. In such case the second petition in error should be dismissed." (Emphasis added.) - 5 - * * * The reasoning in such cases is that a party should have his day in court, and that day should conclude the matter. A party is bound then to present his entire cause and he is foreclosed from later attempting to reopen the cause as to issues which were or could have been presented. Anderson v. Richards (1962), 173 Ohio St. 50, 53. This court has previously applied res judicata to affirm the denial of a Civ. R. 60(B) motion where a husband raised issues in the motion that were the subject of a prior appeal. Becka v. Downing (Feb. 12, 1992), Cuyahoga App. No. 62022, unreported. In the case at bar, the issues raised by the husband concerning the division of marital debts were raised previously in his direct appeal. This court noted that he missed his opportunity to fully present his case when he walked out on the referee's hearing where the issues were being litigated. Moreover, nothing prevented husband in his first appeal from raising each individual liability--all of which occurred prior to trial--because they all occurred prior to the original judgment of divorce. Therefore the trial court did not abuse its discretion in denying the motion for relief from judgment on the grounds of res judicata. TIMELINESS A Civ.R. 60(B) motion must be filed within a reasonable time not more than one year after the judgment sought to be modified. In the case at bar, the parties' divorce was journalized on March 27, 1995. Defendant waited until March 19, 1996, almost a year, to file his motion for relief from judgment. This court has - 6 - previously held that an eleven-month delay before a motion for relief from judgment is filed is an unreasonable delay rendering the motion untimely. Drongowski v. Salvatore (Oct. 1, 1992), Cuyahoga App. No. 61081, unreported. In the case at bar, defendant offered no explanation for the delay. Therefore the untimeliness of the husband's motion is a second, independent reason to affirm the judgment of the trial court. Husband's two assignments are overruled. The judgment of the trial court is 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 Domestic Relations Division of the Cuyahoga County 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. JAMES M. PORTER, PRESIDING JUDGE DIANE KARPINSKI, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .