COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71421 MARION COWGER : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WILLIAM B. COWGER : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 1, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Division of Domestic Relations, Case No. D-103148. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Defendant-appellant: Robert E. Epstein, Esq. 2421 Allen Boulevard Beachwood, Ohio 44122 - 2 - PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Defendant-appellant William Cowger appeals from the order of the Court of Common Pleas, Domestic Relations Division, denying his motion to vacate the judgment rendered on May 2, 1995. The appellant and appellee Marion Cowger were granted a divorce on October 17, 1980. The court ordered appellant to pay child support for his three minor children. Over the years the parties appeared before the court, but the issues were resolved. On March 2, 1995, a hearing before a magistrate was held pursuant to the appellant's motion to terminate child support for his eldest child. The magistrate's decision, filed March 27, 1995, indicated that the motion should be granted, and calculated that the appellant's child support arrearage was now $15,763.80. The appellant failed to file timely objections and the court affirmed the magistrate's recommendations on May 2, 1995. On August 4, 1995, the appellant filed a motion to correct judgment and a motion to vacate the judgment entry. In the motion to vacate, the appellant sought to vacate the amount of his child support arrearage based upon newly discovered evidence. The evidence purported to be new is an agreement between - 3 - the appellant and appellee which is dated October 16, 1985, and credits the appellant $8,609.18 on his child support arrearage. The agreement, attached to the motion, was signed by the appellee, her attorney, and the appellant's attorney. Also attached is the appellant's affidavit indicating that the $8,609.18 was not taken into account in the court's most recent entry and stating, "I completely forgot about this Agreement." On December 7, 1995, the motion to vacate was heard before the magistrate. In the magistrate's findings of fact and conclusions of law, the magistrate notes that there were six opportunities between July 18, 1986, and March 2, 1996, in which the appellant could have brought the alleged agreement to the court's attention. The magistrate held that the appellant's motion to vacate was "barred by collateral estoppel as well as Civ.R. 60(B), as the alleged agreement does not constitute newly discovered evidence, cannot be considered a clerical mistake, and was certainly not brought within a reasonable time." The appellant, in his objections to the magistrate's decision, argued that the doctrine of collateral estoppel was inappropriate and would fail to promote justice. The appellant asserted that his failure to remember the agreement until after May 2, 1995, falls within the purview of Civ.R. 60(B)(5) and was brought within a reasonable time. The trial court was not persuaded by the objections, and adopted the referee's report. As a side note, the court granted the appellant's motion of August 4, 1995, to correct - 4 - the record. The court found the appellant's child support arrearage to be $14,231.12. The appellant sets forth one assignment of error: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT TAKING INTO ACCOUNT THE AGREEMENT BETWEEN THE PARTIES GIVING THE DEFENDANT- APPELLANT A CREDIT OF $8,609.18 TOWARD HIS PAST DUE CHILD SUPPORT. The appellant argues that the trial court abused its discretion when it failed to enforce a purported 1985 agreement between the parties which was never personally signed by the appellant, was not signed by the court, and was neither referred to in any other court document nor journalized by the court. In order to prevail on a motion for relief from judgment under Civ.R. 60(B), the movant must demonstrate: 1) a meritorious defense; 2) entitlement to relief under one of the grounds set forth in Civ.R. 60(B)(1) through (5); and 3) that the motion is made within a reasonable time, and where the grounds for relief are Civ.R. 60(B)(1),(2), or (3), not more than one year after the judgment was entered. Strack v. Pelton (1994), 70 Ohio St.3d 172, citing to GTE Automatic Elec. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146. These requirements are independent and in the conjunctive; the test is not fulfilled if any one of the requirements is not met. Id. at 174. The standard of review is one of abuse of discretion. Strack, supra, citing to Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17. - 5 - The record before this court is devoid of a transcript of the hearing before the magistrate. Upon appeal of an adverse judgment, it is the duty of the appellant to ensure that the record, or whatever portions necessary for determination of the appeal, are filed with the appellate court. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. Without a transcript, or an acceptable statement of the evidence as permitted by App.R. 9, appellate review of the trial court's judgment is by necessity confined to the remaining pertinent portions of the record. Rose Chevrolet, supra, at 20. Here, this court is confined to reviewing the appellant's motions, the determinations made by the magistrate and the trial court's orders. In the case sub judice, the appellant has failed to satisfy the first prong of the GTE test. As stated earlier, the agreement between appellee and appellant was not signed by the appellee, was not signed by the judge, and was not filed as of record. It is impossible for this court to know if the parties considered this agreement binding, or if the agreement was one proposed as a part of negotiations, but never accepted by the appellant. Any evidence regarding this matter would have been presented to the magistrate, and without any transcript, this court must presume regularity and affirm the trial court's adoption of the magistrate's report. Knapp, supra. Assuming, arguendo, the appellant had met the requirements of the first prong, he has failed to meet the second prong of GTE, - 6 - supra. Civ.R. 60(B)(2) permits a court to vacate a judgment based upon newly discovered evidence. In the case sub judice, the evidence the appellant asserts was "newly" discovered in 1995 was known to him in 1985. The civil rules makes no provision for vacating a judgment based upon "re-discovered evidence" or on "previously known evidence recollected." And assuming, arguendo, the appellant had met his burden in showing the first and second prong, he has failed to meet the third prong of GTE, supra. In determining whether evidence is "newly" discovered, this court must look to the time when the evidence became admissible. See Strack, supra, at 175. Since the evidence was admissible in 1985, the appellant has failed to file his motion for relief from judgment in a timely manner. Lastly, the appellant attempted to assert in his objections to the magistrate's report a new grounds for vacating the judgment under Civ.R. 60(B)(5). Without commenting on the fact that, arguably, objections to a magistrate's report are an improper vehicle for raising additional grounds on which to vacate a judgment, Civ.R. 60(B)(5) is applicable only to relieve a person from the unjust operation of a judgment. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64. The grounds for invoking Civ.R. 60(B)(5) should be substantial. Id. at syllabus 2. Here, the appellant failed to demonstrate by operative facts that he was entitled to relief under Civ.R. 60(B)(5). The appellant's reliance on an affidavit stating that, "I forgot about - 7 - the Agreement" does not outweigh the following facts: 1) in 1995, the appellant attempted to bring before the court a 1985 agreement which would substantially alter his child support arrearage; and 2) the record is clear that the appellant had the opportunity to present the agreement to the court on numerous prior occasions. This court cannot find that the trial court abused its discretion. The appellant's assignment of error is overruled. Judgment affirmed. - 8 - 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. JAMES D. SWEENEY, C.J. JOHN T. PATTON, J. KENNETH A. ROCCO, J. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(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 .