COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72553 UNIVERSAL BANK N.A. : : ACCELERATED DOCKET Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION DENNIS THORNTON, et al : [Debra Thornton] : : PER CURIAM Defendant-appellee : (Motion No. 84938) : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 18, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Shaker Heights Municipal Court : Case No. 95-CVF-06448 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: WILLIAM RICHARD YOST Attorney at Law 1328 Dublin Road Columbus, Ohio 43215 For defendant-appellee : GEORGE W. TRUMBO Attorney at Law 13807 Drexmore Road Cleveland, Ohio 44120 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 -2- Cuyahoga County Court of Common Pleas, and the briefs of counsel. Plaintiff-appellant Universal Bank appeals the judgment of the Shaker Heights Municipal Court wherein it granted defendant- appellee Debra Thornton's motion to vacate the default judgment entered against her. For the reasons stated below, we reverse. The facts giving rise to this appeal are as follows. On September 20, 1995, Universal Bank commenced its action against both Dennis Thornton and Debra Thornton, then husband and wife, for monies due and owing upon credit card debt, for breach of their contract for the debt, and for unjust enrichment. On December 12, 1995, Universal Bank moved the court to enter judgment against both Dennis and Debra Thornton for their failure to move or plead as required by the rules of civil procedure. The motion for default judgment was granted by the court in favor of Universal Bank against both Dennis and Debra Thornton that same day, wherein Debra Ann Thornton became a judgment debtor to Universal Bank, N.A. On April 4, 1996, Universal Bank, as a judgment creditor of Debra Thornton, filed its Notice of Garnishment with Dollar Bank against the bank account of Debra Ann Thornton. On April 16, 1996, appellee Debra Thornton moved the Shaker Heights Municipal Court to vacate the judgment against her. On April 25, 1996, without hearing, the trial court granted appellee's motion to vacate by journal entry, stating: Defendant Debra Ann Thornton's Motion to Vacate Judgment in regard to the judgment rendered in this matter by this court on 12 December 1996 is granted as to Defendant DEBRA ANN THORNTON ONLY pursuant to Ohio Rule of Civil Procedure 60(B)(4). The garnishment -3- proceeding filed in this court on 4 April 1997 pursuant to that judgment is therefore dismissed, the garnishment hearing called at the request of the judgment debtor, Debra Ann Thornton, is dismissed, and any funds held by this court in relation to that garnishment proceeding are to be released to the judgment debtor. The Answer date in this matter for Defendant Debra Ann Thornton is now set for 23 May 1997. Universal Bank filed its opposition to the motion on April 28, 1996. It is from this judgment that appellant Universal Bank timely appeals and advances a single assignment of error for our review. THE TRIAL COURT ERRED IN VACATING THE DECEMBER 12, 1995 JUDGMENT ENTERED AGAINST DEFENDANT- APPELLEE DEBRA ANN THORNTON. Initially, we note for the record that appellee has moved this court to dismiss the instant appeal asserting that this order merely vacates the garnishment proceeding and ordered the Defendant, Deborah Thornton, to file an Answer to the original complaint by a certain date and, as such, is not a final and appealable order. We do not agree. The order of the trial court clearly vacated the default judgment entered against Debra Ann Thornton and is, consequently, a final and appealable order as provided in R.C. 2505.02. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146; United Fairlawn, Inc. v. HPA Partners (1990), 68 Ohio App.3d 777. Therefore, appellee's motion to dismiss this appeal is denied. In this appeal, appellant Universal Bank contends that appellee failed to demonstrate in her motion to vacate pursuant to -4- Civ.R. 60(B) that she was entitled to relief from the default judgment entered against her on December 12, 1995. We agree. The rule governing relief from judgment is a remedial rule that is to be liberally construed with a view for effecting a just result. State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1993), 67 Ohio St.3d 134. A motion to vacate judgment pursuant to Rule 60(B) is addressed to the sound discretion of the trial court. Doddridge v. Fitzpatrick (1978), 53 Ohio St.2d 9, 12; Huntington Natl. Bank v. Heritage Investment Group(1983), 12 Ohio App.3d 113; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97. Such discretion is not, however, unbridled. Doddridge, supra at 12. In order 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)(1-5), 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), no more than one year after the judgment order or proceeding was entered or taken. GTE Automatic Electric v. ARC Industries, supra, paragraph 2 at the syllabus. Failure to establish any one of the three requirements is fatal to a claim for relief from judgment. Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285. The record reveals that the trial court granted appellee's motion pursuant to Civ.R. 60(B)(4), which provides that: *** the judgment has been satisfied, released or discharged, or a prior judgment upon which -5- it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. The question before us, then, is whether in this case there are operative facts which demonstrate (1) the motion was timely filed, (2) grounds for relief under Civ.R. 60(B), and (3) a meritorious defense. This court, in Mount Olive Baptist Church, supra, stated that: *** [a] motion to vacate a default judgment which is filed nearly seven months after actual notice of the action and more than four months after default judgment was entered is not, on its face, a reasonable time within which to file the motion pursuant to Civ.R. 60(B)(5). See Adomeit v. Baltimore, supra at page 106. In the absence of any evidence explaining the delay, the movant has failed to demonstrate the timeliness of the motion. In this matter, the record reveals the matter was commenced on September 20, 1995. Appellee took no action, and default judgment was taken against her on December 12. Appellee again took no action. Although appellee was aware of the domestic relations order requiring Dennis Thornton to pay the debt to appellant on February 7, 1996, it was not until April 16, 1996, that appellee in any way communicated with the court as to the action or judgment against her. Without any explanation for her failure to do so, appellee simply ignored all proceedings before the court. Consequently, we conclude that appellee failed to demonstrate the first prong of the three-part test, i.e. the timeliness of the motion. Next, we note that this matter was commenced against appellee on September 20, 1995, and default judgment was entered against her -6- on December 12, 1995. On April 16, 1996, seven months after the matter was filed and four months after the default judgment was entered, appellee moved the court to vacate the judgment against her. Appellee, in her motion, appears to request the trial court to vacate the default judgment due to the subsequent order of the domestic relations court in which the court ordered her ex-husband to satisfy appellee's debt to appellant. We note that the motion and accompanying brief of appellee offer no explanation for her failure to answer the complaint against her. A party who willfully and deliberately chooses to ignore a complaint and has stated no other reason for failing to appear or answer a complaint has not stated adequate grounds for relief from default judgment pursuant to Civ.R. 60(B)(5). Mount Olive Baptist Church, supra at 288. So, too, we find that appellee here failed to demonstrate grounds for relief as contemplated by Civ.R. 60(B). Further, a subsequent order of the domestic relations court requiring another to pay the debt owed by appellee and, therefore, holding appellee harmless for the debt made in a proceeding in which the judgment debtor was not a party does not affect the right of the judgment debtor and cannot provide basis for relief pursuant to Civ.R. 60(B)(4). As the judgment in the within action has not been satisfied, released or discharged and there was not a prior judgment upon which it was based, presumably, the appellee intended to argue that it is no longer equitable that the judgment against her have prospective application, but such is not the case. Appellant has a valid judgment against appellee, and it is equitable to enforce that -7- judgment against appellee. It is of no consequence to appellant that appellee may seek relief from her ex-husband on the basis of her divorce agreement. Consequently, we find that appellee, in her motion to vacate the default judgment against her, failed to demonstrate the second required prong of the test, i.e. grounds for relief from the default judgment against her, under any of the provisions of Civ.R. 60(B)(1)-(5). Finally, we find that the record does not contain evidence to support appellee's assertion that she has a meritorious defense to the original action of appellant if the Civ.R. 60(B) relief were granted. Appellee attached to her motion an order of the domestic relations court that ordered her husband to satisfy her obligation on the debt that she owed to appellant, Universal Bank. This order in no way impacts the obligation of appellee on her contractual liability to appellant here and, as such, does not demonstrate a meritorious defense to the action. Therefore, we conclude that appellee failed to demonstrate the third prong of the three-part test, i.e. the requirement that she have a meritorious defense to the contract claim against her. Accordingly, we find that the record fails to show: (1) that Civ.R. 60(B)(4) provides a valid reason to vacate the default judgment in this matter; (2) that the motion was timely filed; and (3) that the appellee had a meritorious defense to the claim. Under the facts of this case, we find that the trial court had insufficient evidence of grounds for Civ.R. 60(B)(4) relief to -8- grant appellee's motion to vacate the default judgment without abusing its discretion. The judgment is reversed and the original default judgment of the trial court in favor of appellant is reinstated. -9- It is ordered that appellant recover of appellee its 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 Cuyahoga County 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. __________________________________ JOSEPH J. NAHRA, PRESIDING JUDGE __________________________________ TIMOTHY E. McMONAGLE, JUDGE __________________________________ ROBERT E. HOLMES, JUDGE* *SITTING BY ASSIGNMENT: Robert E. Holmes, retired Justice of the Ohio Supreme Court. 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 .