COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71098 and 73448 RENEE M. HEWITT : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JAMES H. HEWITT, II : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 5, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division Common Pleas Court Case No. D-246361 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: JOYCE E. BARRETT, ESQ. 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: CARL A. MURWAY, ESQ. Kelley, McCann & Livingstone 35th Fl. BP America Building 200 Public Square Cleveland, Ohio 44114-2302 PATRICIA ANN BLACKMON, A.J.: Plaintiff-appellant Renee Hewitt appeals a decision by the trial court granting defendant-appellee James Hewitt's motion for -2- relief from their divorce judgment. Renee Hewitt assigns the following error for our review: I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT. James Hewitt cross-assigns the following six errors for our review: I. THE TRIAL COURT ERRED BY ENTERING A DIVORCE DECREE DATED MAY 30, 1996, THAT WAS VOIDABLE BECAUSE IT WAS ENTERED BY A VISITING JUDGE WHO DID NOT HAVE JURISDICTION. II. THE TRIAL COURT ERRED BY AWARDING EXCESSIVE SPOUSAL SUPPORT IN ITS DIVORCE DECREE DATED MAY 30, 1996. III. THE TRIAL COURT ERRED BY FAILING TO MAKE ADEQUATE FINDINGS TO ALLOW APPELLATE REVIEW OF ITS DIVISION OF PROPERTY. IV. THE TRIAL COURT ERRED BY GRANTING PLAINTIFF'S MOTION FOR PROTECTIVE ORDER IN ITS ORDER DATED AUGUST 2, 1996. V. THE TRIAL COURT ERRED BY DENYING PLAINTIFF'S MOTION FOR NEW TRIAL IN ITS ORDER DATED JULY 11, 1996. VI. THE MAGISTRATE'S ORDER DATED DECEMBER 9, 1996, IMPROPERLY DENIED DEFENDANT THE OPPORTUNITY TO UNDERTAKE DISCOVERY AFTER HE FILED HIS MOTION FOR RELIEF FROM JUDGMENT AND IMPROPERLY DENIED HIS MOTION TO COMPEL AND FOR SANCTIONS. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. James and Renee Hewitt were married on May 13, 1995. They had no children. Renee Hewitt filed for divorce on March 28, 1996. A hearing was set for May 30, 1996 before Judge Christine McMonagle. James Hewitt failed to file an answer to the complaint. On May 29, -3- 1996, just one day before the scheduled hearing, James Hewitt filed a motion for leave to file instanter his answer and counterclaim. The entire text of his motion was as follows: Now comes defendant, James H. Hewitt, by and through counsel, and hereby moves this court for leave to file his Answer and Counterclaim instanter upon the ground that the failure to file prior to said date is due to excusable neglect. This motion was not immediately ruled on and the matter proceeded to trial before Judge Stanley Fisher because the assigned Judge Christine McMonagle was unavailable on May 30, 1996. After the hearing, Judge Fisher found James Hewitt was forty-two (42) years old and Renee Hewitt was thirty-seven (37) years old and had been married just ten months, that James Hewitt, an attorney, was earning approximately $160,000 through his employment as Law Director for the City of East Cleveland, his private law practice and a position at the Ohio Court of Claims, and that Renee Hewitt, a college graduate, was unemployed at the time of the divorce. Judge Fisher ordered James Hewitt to pay Renee Hewitt $4000 per month in spousal support for a period of one year. He was also ordered to pay $3000 for additional support towards Renee Hewitt's attorney fees. James Hewitt was awarded the marital home, his accounts at Fifth Third Bank, and his PERS benefits. James Hewitt was ordered to pay all the parties' debts including Saks Fifth Avenue, Sears, VISA Classic, VISA Gold, MasterCard, Dillard's, Optima, GMAC, medical expenses, cellular phone charges, and insurance on a Corvette automobile. -4- On June 3, 1996, the transfer of the case to Judge Fisher was transcribed by a journal entry. On June 11, 1996, James Hewitt filed a motion for new trial. On June 19, 1996, Judge Fisher denied James Hewitt's motion for leave to file his answer and counterclaim instanter, which was originally filed on May 29, 1996. James Hewitt's motion for new trial was denied on July 11, 1996. On July 22, 1996, James Hewitt filed a motion for relief from the May 30, 1996 divorce and from the July 11, 1996 denial of his motion for new trial. In addition, he moved the court to vacate as void the judgments made by Judge Stanley Fisher. He also challenged the order assigning the case to Judge Fisher and sought a hearing before a judge other than Judge Fisher. A hearing on these motions was held before Magistrate Gregory Fuss. James Hewitt's lawyer, Joseph Bancsi gave the following testimony as to why he did not file James Hewitt's answer and counterclaim in a timely fashion: During the time period preceding May 30th, I received some relatively devastating personal news *** which affected my attention to certain portions of my legal practice which I started up again after completing my work. Prior to that time, the filing of the answer and counterclaim was set on my calendar but did not get to it until the day prior to the May 30th hearing. (Tr. 59.) He also testified that, in his experience, motions for leave to file his answer and counterclaim were always granted on a walk- through. He stated he was prepared to walk the journal entry to Judge McMonagle for signing and journalization until he was told -5- that it was not necessary. He then left the courthouse believing the May 30th hearing would be continued and did not know it had gone forward until several days later. Judge McMonagle's scheduler, Candy Vitus, testified that she told Bancsi that Judge McMonagle was not in to grant his leave. She also denied telling Bancsi that she would take care of getting the leave granted or that he need not walk it through to Administrative Judge Flanagan for signature. In an August 1, 1997 report, the magistrate denied the motion, concluding that Bancsi's testimony about the devastating personal news he received was insufficient to excuse his inadequate efforts on behalf of his client. James Hewitt's motion for a new trial was denied. He then filed a motion to vacate the judgments issued by Judge Fisher and Judge Flanagan, a motion for relief from judgment, and a request for a hearing before a judge not connected with the proceedings. A hearing was held on the motions on May 7, 1997 before Magistrate Gregory Fuss. Fuss denied the motions in a report dated August 1, 1997. James Hewitt's objections to the magistrate's decision were reviewed by Judge Christine McMonagle. She determined that James Hewitt's objections were well taken and vacated the divorce decree. This appeal followed. In her assignment of error, Renee Hewitt argues the trial court abused its discretion in granting James Hewitt's motion for relief from judgment. To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a -6- 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) 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, Inc. v. ARC Industries (1976) 47 Ohio St.2d 146, paragraph two of the syllabus; Strack v. Pelton (1994), 70 Ohio St.3d 172, 174. When reviewing the trial court's decision on a Civ.R. 60(B) motion, we must apply an abuse of discretion standard. Strack at 174. The trial court granted James Hewitt relief from the trial court's judgment under Civ.R. 60(B)(5). Civ.R. 60(B)(5), the catch-all provision, provides that in addition to any of the reasons specifically delineated in Civ.R. 60(B)(1) through (4), a party may be relieved from a final judgment for any other reason justifying relief from the judgment. The trial court determined that the conduct of James Hewitt's trial counsel constituted negligence of an extraordinary nature which justified relief under Civ.R. 60(B)(5). Generally, an attorney's neglect will be imputed to his client for purposes of Civ.R. 60(B). Whitt v. Bennett (1992), 82 Ohio App.3d 792, 796 (citations omitted); Tonti v. Birch (Nov. 17, 1995), Wood App. No. WD-95-05, unreported. However, in some circumstances, other circumstances may exist which would entitle the movant to relief from judgment under Civ.R. 60(B)(3). In Whitt, an attorney's failure to attend a dispositive hearing after -7- proper notice was held to constitute grounds for relief under Civ.R. 60(B)(5). An attorney's failure to comply with an order compelling discovery when he has discovery materials in his possession and to attend a hearing on a motion to dismiss for failure to comply with that discovery order after proper notice is inexcusable neglect. Such matters will be found wanting if weighed against the standard of Civ.R. 60(B)(1). However, they are matters different from the simple lapses and technical failures contemplated in that rule. They are matters of an extraordinary nature, which is the purview of Civ.R. 60(B)(5). Therefore, they are operative facts for relief from judgment pertinent to Civ.R. 60(B)(5) and may be considered for that purpose without violating the rule against substitution of grounds. Whitt at 797. The Whitt court reasoned that fault should not automatically be imputed when an attorney grossly neglects a diligent client's case while leading the client to believe the case is being properly handled. Whitt at 798. In this case, James Hewitt's trial counsel admitted that he neglected to file a timely answer due to personal problems. In addition, he waited until the day before the hearing to seek leave to file his answer instanter. Without obtaining a ruling in his motion or seeking a continuance, he failed to appear in court for the divorce hearing. James Hewitt testified that he was unaware of his trial counsel's failure to timely file an answer to Renee Hewitt's complaint and that his attorney never informed him of the May 30, 1996 hearing. Based upon the evidence presented, we conclude the trial court did not abuse its discretion in -8- determining that the attorney's conduct constituted negligence of an extraordinary nature. We also find that James Hewitt went forward with evidence of a meritorious defense to the divorce judgment. A defense is meritorious if it is not a sham and when, if true, it states a defense in part or in whole to the cause of action set forth. Brenner v. Shore (1973), 34 Ohio App.2d 209, 215. The movant need not establish that his defense will ultimately be successful. Morgan Adhesives Co. v. Sonicor Instrument Corp. (1995), 107 Ohio App.3d 327, 334. James Hewitt presented evidence that the trial court lacked accurate information about the parties' assets and property because of misrepresentations by Renee Hewitt. In support of his claim, he submitted tax returns and copies of bills. In light of the evidence presented, we conclude the trial court did not abuse its discretion in concluding that James Hewitt presented a meritorious defense to the judgment. Accordingly, we overrule Renee Hewitt's first assignment of error and affirm the judgment of the trial court. In light of our decision to affirm the trial court's judgment, James Hewitt's cross assignments of error are moot. See App.R. 12(A)(1)(c). Judgment affirmed. -9- 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. Exceptions. DYKE, J., and KARPINSKI, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .