COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71006 DEBRA J. DICKSON, NKA GRADY : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DENNISS R. DICKSON : : Defendant-appellant : PER CURIAM : DATE OF ANNOUNCEMENT : JANUARY 23, 1997 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. D-149496 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: PAMELA J. MACADAMS, ESQ. F. PATRICK ROSATI, ESQ. Morganstern, Macadams & 27801 Euclid Avenue, #500 Devito Euclid, OH 44132 400 Burgess Bldg. 1406 West 6th Street Cleveland, OH 44113 Guardian Ad Litem: JANET L. KRONENBERG, ESQ. Kronenberg & Kronenberg 410 Midland Bldg. 101 Prospect Avenue Cleveland, OH 44115-1092 - 3 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs. The sole issue in this appeal is whether the trial court abused its discretion by denying appellant-husband Dennis Dickson's motion for relief from a child support order. Husband sought relief from the support order on grounds that his former wife, Debra Dickson, nka Grady, fraudulently represented to him that he was the child's biological father. The domestic relations court denied the motion for relief from judgment, finding husband failed to file his motion within one year from when he learned of the alleged fraud. We find the domestic relations court did not abuse its discretion by denying the motion for relief and judgment, so we affirm. The parties divorced in 1984 pursuant to the terms of a separation agreement incorporated into the divorce decree. They agreed that one child had been born as issue during the marriage and provided for child support. On June 6, 1994, husband filed a motion for relief from the divorce decree and a motion for an order approving genetic testing to determine the child's parentage. Husband attached an affidavit to the motion for relief in which he claimed wife openly admitted that the child had been fathered by another man. However, husband dismissed those motions on September 14, 1995, before the domestic relations court could rule on them. - 4 - On February 1, 1996, husband refiled his motion for relief from judgment, but did not include an affidavit. The domestic relations court denied the motion finding it not timely raised within one year from the discovery of fraud. In order to prevail on a motion for relief from judgment brought pursuant to Civ.R. 60(B), the movant must demonstrate (1) a meritorious claim or defense, (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) timeliness of the motion. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus; Buckeye Fed. S. & L. Assn. v. Gurlinger (1991), 62 Ohio St.3d 312, 314. These requirements are independent and in the conjunctive; failure to establish any one of these requirements forecloses relief. Strack v. Felton (1994), 70 Ohio St.3d 172, 174. The trial court retains discretion in deciding whether to grant relief from judgment, and its determination will be reversed only upon a showing that it abused its discretion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20-21; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97. Because husband premised his motion on allegations of fraud, Civ.R. 60(B)(3) required him to file the motion within one year from the date he learned of the alleged fraud. His affidavit, contained in the motion filed June 6, 1994, did not state when he learned of the fraud, it simply said he "filed this action within a reasonable time after learning of [wife's] actions." This general - 5 - allegation of fraud did not fulfill husband's requirement to allege operative facts sufficient to show his entitlement to the requested relief. See Adomeit v. Baltimore, supra. Rather than cure this defect, husband voluntarily withdrew his motion for relief from judgment. He refiled the motion on February 1, 1996, making the same fraud argument but asking for relief under the catch-all provision of Civ.R. 60(B)(5). That motion did not include an affidavit. We find the February 1, 1996 motion for relief from judgment did not state operative facts showing husband's entitlement to relief. Because Civ.R. 60(B)(3) specifically incorporates fraud as a ground for relief, a movant cannot rely on the less specific provisions of Civ.R. 60(B)(5). In other words, if a motion for relief from judgment under Civ.R. 60(B)(3) is not filed within one year of the discovery of the fraud, the movant cannot file the motion for relief from judgment under the "reasonable time" parameters of Civ.R. 60(B)(5). See Cerney v. Norfolk & W. Ry. Co. (1995), 104 Ohio App.3d 482, 491. It follows that husband's motion for relief from judgment filed February 1, 1996 clearly was not filed within one year of having discovered the fraud, since he made the same allegation in his first motion filed in June 1994. Husband now argues that he could file the second motion under R.C. 2305.19, the savings statute. In his view, the savings statute permitted him to file his second motion for relief from - 6 - judgment within one year from the time he dismissed the first motion. This argument fundamentally miscomprehends the nature of a motion. A "motion" is an application to the court for an order. See Civ.R. 7(B)(1). The savings statute, R.C. 2305.19, applies only to an "action." An action is the case itself, initiated by filing a complaint with the court. See Civ.R. 3(A). In a technical sense, husband did not dismiss his motion because it was not an action -- he merely withdrew it from consideration. Consequently, the savings statute has no application under the circumstances. The assigned error is overruled. 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 Court of Common Pleas 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. JOHN T. PATTON, JUDGE JAMES D. SWEENEY, CHIEF JUSTICE PATRICIA BLACKMON, 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 .