COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72114 DARLENE DILLARD-DAVIS : : ACCELERATED DOCKET Plaintiff-Appellee : : JOURNAL ENTRY vs. : : AND WILLIAM DILLARD : : OPINION Defendant-Appellant : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: November 13, 1997 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Div. Common Pleas Court Case No. D-195245 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: ____________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: DANIEL R. DEPIERO, ESQ. ROBERT E. EPSTEIN, ESQ. 1648 Hanna Building 2421 Allen Blvd. 1422 Euclid Avenue Beachwood, Ohio 44122 Cleveland, Ohio 44115 PER CURIAM. This is an accelerated appeal by William Dillard, defendant- appellant. Appellant challenges the Domestic Relations Court's -2- decision that granted his ex-wife's Civ.R. 60(B) motion for relief from judgment. Darlene Dillard-Davis, plaintiff-appellee, moved pursuant to Civ.R. 60(B)(5)to have a prior order vacated, which order had given the federal income tax dependency exemption to appellant. She argued before the court that justice would best be served by awarding the exemption to her in light of her changed income status. Appellant argues before this court that she failed to present facts sufficient to invoke Civ.R. 60(B)(5) and assigns the following error for our review: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT GRANTED THE PLAINTIFF- APPELLEE'S MOTION FOR RELIEF FROM ORIGINAL AGREED ENTRY ORDER. Having reviewed the record and arguments of the parties, we conclude the trial court did not err and affirm its decision. The apposite facts follow. On July 5, 1996, appellee filed a Civ.R. 60(B)(5) motion for Relief from Judgment. In her motion, she asked the court to vacate its journal entry of July 1990. In the July 1990 entry, appellee had agreed to give appellant the federal income tax dependency exemption for their four minor children. In 1995, appellee had moved to modify the 1990 entry, wherein she asked the court to award her the federal income tax dependence exemptions for 1992, 1993, and 1994. The court granted her request for 1994 but not the other two years. Consequently, appellee's Civ.R. 60(B)(5) motion was for those two years. Attached to appellee's Civ.R. 60(B)(5) motion were two affidavits from her lawyer and herself. The lawyer averred that he -3- had mistakenly left out the language that the exemption to appellant was only for 1991. Prior to the 1990 entry under the 1989 divorce decree, appellant received the exemption for all four children but only for that year. Thereafter, appellee held the exemptions until the 1990 entry. Appellee averred that she took the exemptions in 1992, 1993, and 1994 because she thought the exemptions belonged to her. She also stated that she has received severe tax penalties because of the situation. She averred that she was under the impression that appellant was restricted to 1991 and that she did not know of the mistake until the I.R.S. informed her that she was not entitled to the exemptions. She averred that in the interest of justice, she deserved the exemption because she earned more than appellant in those years. Furthermore, she stated she was laid off and only agreed to give appellant the exemptions for 1991. She also was providing over half the care and support of the children. The trial court agreed with her and vacated the 1990 entry thus awarding to appellee the exemptions for 1992 and 1993. This appeal followed. The issue before this court is whether the trial court abused its discretion when it vacated the July 2, 1990 agreement. Appellant argues the trial court abused its discretion because appellee did not present a meritorious claim, did not state a ground for relief, and was untimely. We disagree. To prevail on Civ.R. 60(B) motion, the movant must demonstrate that: (1) [she] has a meritorious defense or claim to -4- present if relief is granted; (2) [she] is entitled to relief under one of the grounds stated in Civ.R. 60(B) (1) through (5); (3) the motion is made within a reasonable time *** GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146 (paragraph 2 of the syllabus). The standard of review of a Civ.R. 60(B) motion is abuse of discretion. Id. The court abuses its discretion if it grants such relief where the movant has not demonstrated all three factors. See Mount Olive Baptist Church v. Pipkins Paints & Home Improvement Ctr., Inc. (1979), 64 Ohio App.2d 185. Appellant argues appellee knew she had given up the exemption when she signed the agreed entry. Consequently, he argues she has failed the first prong of GTE because her facts did not present a meritorious claim. Appellee's position is that at the time she signed the agreement she was laid off. She now is employed and earns more than the appellant. She felt she was entitled to the exemption and did, in fact, take them. Additionally, she claims a lack of knowledge and thought the agreement gave the exemption to appellant for only one year. She also claims a financial hardship because she took the exemptions. We conclude appellee has presented a meritorious claim. A meritorious claim exists when the movant has presented sufficient facts to support her claim. She need not prevail on the merits of the claim but must carry her burden of alleging a meritorious claim. Colley v. Bazell (1980), 64 Ohio St.2d 143; Moore v. Emmanuel Training Ctr. (1985), 18 Ohio St.3d 64; Volodkevich v. -5- Volodkevich (1988), 35 Ohio St.3d 152, and McCann v. Lakewood (1994), 95 Ohio App.3d 226. R.C. 3111.13(C) provides that a court may make any order `concerning *** any matter in the best interest of the child.' Bobo v. Jewell (1988), 38 Ohio St.3d 333 (quoting the revised code). Requiring the non-custodial parent to pay child support is an attempt to fairly distribute the high costs of raising a child between parents. Even so commentators state that child support paid by the non-custodial parent often falls short of one half the actual costs incurred by the custodial parent. Id. According to Bobo, the Supreme Court in Hughes v. Hughes (1988), 35 Ohio St.3d 165, awarded the dependency exemptions to the parent in the higher tax bracket, concluding that parent would benefit most from the exemptions. The court also concluded that awarding the dependency exemptions to the parent in the higher tax bracket would also allow that parent to pay more child support. In Hughes, the parent in the higher tax bracket was the non-custodial parent. Here, the custodial parent, appellee, is in the higher tax bracket. Nevertheless, the same reasoning applies. As the higher earning parent, appellee could better provide for the children financially. Besides, she was faced with penalties because she had taken the exemptions. As such, she had a tax burden. Appellee claimed she was entitled to the exemptions for the years 1992 and 1993. She need not show that she would prevail on the claims but merely allege the claims. This, she has done. -6- Consequently, we conclude she has satisfied her burden of presenting a meritorious claim under the first prong of GTE. Appellant acknowledges that there might be enough evidence to get appellee beyond the first prong of GTE. However, he argues she has not satisfied her burden under the second prong. Appellee argued below that she was entitled to relief under Civ.R. 60(B)(5). Civ.R. 60(B)(5) has been termed the catch-all section, which is designed to permit relief in the interest of justice. It has also been held that it cannot be used as a substitute for a more specific provision of Civ.R. 60(B) and that the evidence must be substantial. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64. Following Caruso-Ciresi, it has been held that the movant has the burden of showing that the movant is not using Civ.R. 60(B)(5) as substitute for a more specific provision and that the movant has acted within a reasonable time. Taylor v. Haven (1993), 91 Ohio App.3d 846. We conclude appellee has met this burden. Simply because appellee stated in her affidavit that the year restriction should have been included in the agreed entry does not turn her case into a 60(B)(1) excusable neglect case. We are mindful that her attorney's affidavit does present this excuse factor. However, appellee's arguments are much more, and we are bound by the entire record. Appellee had taken the exemption for 1992 and 1993, and so had the appellant. The trial court armed with these facts decided she -7- should have the exemption. The court's conclusion was reasonable since appellee was facing a heavier tax burden. Besides, she was the custodial parent and making more money than the appellant. Consequently, taking into consideration the tax burden she faced for 1992 and 1993, and the fact that for those years she earned the most money and needed the exemptions, the trial court did not act unreasonably in vacating the judgment. Civ.R. 60(B)(5) is designed to do justice, and in this case, justice was done. However, appellant argues Caruso-Ciresi requires a different conclusion. We believe Caruso-Ciresi's facts are different from the facts in this case. In the Caruso-Ciresi case, the court pointed out that the very facts that established a meritorious claim actually went to the issue of the attorney's excusable neglect. After the lower court in that case ruled the attorney's action was not excusable, the appellant, thereafter, moved for relief on a motion for reconsideration adding Civ.R. 60(B)(5). Appellant argued its company, Beckman Enterprises, Inc., was not a proper defendant in the action. The Ohio Supreme Court held this was an obvious misuse of Civ.R. 60(B)(5) because it was an attempt to avoid what had occurred earlier. In Caruso-Ciresi, the attempted use of Civ.R. 60(B)(5) as a substitute for a more specific provision of Civ.R. 60(B) was evident on its face. However, in this case, appellee's only argument is that in the interest of justice the judgment should be vacated. She argues she is the custodial parent with the higher income. Even though she stated she was unaware of the entry she -8- does not claim mistake or excuse. She agreed that it was her intention to give appellant the exemption at the time of the original judgment. However, due to changes in her employment status, she argues that justice would best be served by awarding her the exemptions. The record showed that appellee moved to modify the original entry to give her the exemptions. The lower court did, in fact, give her the exemption for 1994 and beyond. However, it failed to do so for the years 1992 and 1993. Thus, she moved to vacate the original order as it affected those two years. The trial court agreed with her that justice would be served by so doing. She had already used the exemptions and was as the court found entitled. Thus, we conclude she has satisfied the second prong of GTE. Finally, appellant claims a five-year period is an unreasonable time. We disagree. Appellee was utilizing the exemption until the IRS called the matter to her attention. At that point, she acted to resolve the matter in 1994 but did not resolve the issues for 1992 and 1993. Thereafter, she moved to vacate the entry for those years. This was a reasonable time under the circumstances. Therefore, we conclude she has satisfied the third prong of GTE. Accordingly, we conclude the trial court did not abuse its discretion. Judgment affirmed. It is ordered that appellee recover of appellant her costs herein taxed. -9- 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. ______________________________ PATRICIA ANN BLACKMON, P.J. ______________________________ DIANE KARPINSKI, JUDGE ______________________________ JOHN T. PATTON, JUDGE 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 .