COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71538 PNINA OFFENBERG, PKA PNINA GLASSMAN Plaintiff-appellant JOURNAL ENTRY vs. AND NATHAN OFFENBERG, ET AL. OPINION Defendant-appellee DATE OF ANNOUNCEMENT OF DECISION: MAY 28, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from the Domestic Relations Division of the Common Pleas Court, Case No. D- 166263. JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellee: STEVEN H. SLIVE, ESQ. ROBERT S. PASSOV, ESQ. MICHAEL J. CONNICK, ESQ. 75 Public Square SLIVE & CONNICK CO., L.P.A. Suite 914 925 The Leader Building Cleveland, Ohio 44113 526 Superior Avenue Cleveland, Ohio 44114 -2- KARPINSKI, J.: Plaintiff-appellant Pnina Glassman, fka Pnina Offenberg, appeals from an order of the trial court denying her motion for relief from judgment without conducting a hearing. Plaintiff was divorced from defendant-appellee Nathan Offenberg, and awarded custody of their three minor children, in a decree journalized October 14, 1988. Inter alia, the decree ordered defendant to pay child support of $150 per week per child or approximately $1,800 per month. The accompanying 1988 support order directed defendant to notify the domestic relations court of any changes in his employment or income. Immediately after the decree, the parties filed a series of motions and became embroiled in further litigation. Within approximately two months, on December 16, 1988, defendant filed, inter alia, a motion to modify his child support obligations. Throughout the course of 1989 and 1990, a domestic relations referee conducted twenty-four hearings on the motions, including the motion to modify child support. Approximately two years later, on November 3, 1992, the referee entered a comprehensive twenty- one-page single-spaced report. Defendant filed objections to the referee's recommendations, along with a March 5, 1993 affidavit, which stated that he had obtained different employment at lower compensation. Defendant's affidavit, notarized by his former counsel, maintained that his income following 1988 did not exceed approximately $33,800. In an order journalized May 9, 1994, the trial court ultimately -3- resolved the pending motions and granted defendant's motion to reduce child support based on his claimed annual income of $33,800. The modified monthly child support obligation of $832.92, based on the $33,800 of claimed income, was less than half the approximately $1,800 per month in the original decree. Appealing the trial court's order of May 9, 1994, plaintiff challenged the amount of interest awarded on various unpaid obligations. This Court affirmed the trial court's judgment in Pnina Glassman v. Nathan Offenberg et al. (Dec. 18, 1995), Cuyahoga App. No. 67344, unreported. During the course of the appeal, however, the parties engaged in further litigation in the domestic relations court. During discovery through February 1996 from defendant, his new wife, and his accountant, plaintiff obtained federal income tax returns and other financial information indicating that defendant earned annual income in the period from 1992 through 1994 from various sources, some of which had previously been undisclosed, which substantially exceeded $33,800 per year. Plaintiff alleges that defendant's gross earnings from all sources in 1992 through 1995 exceeded $925,000. After analyzing boxes of records, plaintiff thereafter on August 9, 1996, filed a Civ.R. 60(B) motion for relief from the May 9, 1994, judgment reducing defendant's child support obligations. Plaintiff alleged (1) that defendant violated the 1988 wage support order requiring him to disclose all his employment and income and (2) that he and/or his counsel committed fraud on the court by misrepresenting and concealing income. -4- The eighteen-page motion described in detail her allegations and was supported by an affidavit. The motion also included as an exhibit the allegedly false 1993 affidavit filed by defendant and incorporated a pending twenty-eight-page motion for sanctions, which alleged various discovery abuses that prevented plaintiff from previously discovering defendant's income. With exhibits, the entire motion contained approximately three-quarters of an inch of material. Defendant filed two motions for additional time to respond to plaintiff's motion for relief from judgment. However, before defendant responded, the trial court denied the motion for relief from judgment without conducting an evidentiary hearing. Plaintiff's sole assignment of error follows: THE TRIAL COURT ERRED BY DENYING APPELLANT'S UNOPPOSED MOTION FOR RELIEF FROM JUDGMENT WITHOUT A HEARING. This assignment is well-taken. Plaintiff argues generally that the trial court erred by denying her motion for relief from judgment without conducting an evidentiary hearing. She argues that she presented evidence that defendant violated the court's 1988 wage support order and that he and/or his counsel committed fraud by misrepresenting and concealing income to reduce his child support obligations. She argues her motion sufficiently alleged any other reason justifying relief from the 1994 child support modification under Civ.R. 60(B)(5). To prevail on a Civ.R. 60(B) motion for relief from judgment, the movant must demonstrate: (1) a meritorious claim or defense, -5- (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) a timely filed motion. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146, syllabus paragraph two. The trial court's one-paragraph opinion states that plaintiff did not sufficiently allege (1) timeliness of the motion, (2) operative facts to warrant relief under one of the Civ.R. 60(B) grounds, or (3) a meritorious claim or defense. We disagree. When a Civ.R. 60(B) motion is supported by sufficient evidence to satisfy these three criteria, a trial court abuses its discretion by denying relief from judgment, without conducting a hearing. Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18. Timeliness Contrary to the trial court's formalistic opinion, it is not essential for a Civ.R. 60(B) motion to contain a specific allegation that the motion was timely filed. While such an allegation constitutes good practice, such information is frequently apparent from the record. In this case, however, as noted above, plaintiff's eighteen-page Civ.R. 60(B) motion specifically incorporatedher motion for sanctions, which described in detail the circumstances of her discovery that the 1994 child support modification was allegedly obtained in violation of the court's 1988 wage support order and based on perjured testimony in an affidavit notarized and introduced by defendant's former counsel. -6- Plaintiff's motion describes in detail her attempts to discover relevant financial information. Paragraph 14 specifically alleges that on February 16, 1996 she finally obtained relevant business and personal income tax returns from defendant's accountant, whose name defendant had previously claimed he could not remember. Paragraph 13 alleges that plaintiff had to analyze thousands of pages of information provided by defendant's wife on February 2, 1996 to purge herself of contempt for refusing production earlier. Plaintiff filed her motion for relief from judgment on August 9, 1996, which was less than six months after discovery of the circumstances and approximately two years after the 1994 child support modification order. Under the circumstances, contrary to the trial court, we are unable to conclude as a matter of law that the motion for relief was not filed within a reasonable time. Grounds Plaintiff's motion sought relief under the Civ.R. 60(B)(5) grounds of any other reason justifying relief from the judgment. She specifically alleged that (1) defendant violated the court's 1988 wage support order by failing to identify all his income and sources of income, and (2) that he and/or his counsel committed fraud on the court. This court and others have recognized that claims involving either the non-disclosure or false disclosure of income or assets in domestic relations cases may state a claim for relief from judgment under Civ.R. 60(B)(5) in appropriate circumstances. E.g., -7- Hartup v. Hartup (Sept. 4, 1986), Cuyahoga App. No. 51919, unreported; Seitz v. Seitz (July 23, 1992), Greene App. No. 91-CA- 67, unreported; Clymer v. Clymer (Sept. 10, 1991), Franklin App. No. 91AP-438, unreported; Millhon v. Millhon (Mar. 26, 1991), Franklin App. No. 90AP-1111, unreported; Hellwege v. Hellwege (June 5, 1986), Franklin App. No. 85AP-927, unreported; In re Murphy (1983), 10 Ohio App.3d 134. The parties have spent considerable time arguing about defense counsel's alleged role in presenting false testimony or in obstructing discovery of it. However, at least two courts have recognized that such a finding is not essential and emphasized that a party's filing false statements contrary to local court rules may provide grounds for relief under Civ.R. 60(B)(5) as any other reason justifying relief from the judgment. See Kelly v. Nelson (Dec. 22, 1992), Franklin App. No. 92AP-1014, unreported at p.2; and McCutcheon v. McCutcheon (Jan. 30, 1986), Fairfield App. No. 35-CA-85, unreported at pp. 3-4. As in Kellyand McCutcheon, Dom.Rel.Loc.R. 19 governs requests for modification of child support obligations and dictates that such motions be supported by affidavits stating the reasons for the request and extensive disclosure of financial information. Moreover, the original 1988 wage support order in this case likewise mandated disclosure of changes in income or employment information. Plaintiff has sufficiently alleged and provided some evidence to indicate a violation of these court-ordered -8- requirements to warrant a hearing on her claim for any other reason justifying relief from the judgment. We decline to make any general pronouncements concerning the precise scope of Civ.R. 60(B)(5) or the sometimes obscure distinction between fraud on the court claims recognized under Civ.R. 60(B)(5) and claims of fraud governed by Civ.R. 60(B)(3). We simply note, however, that any other reason justifying relief from the judgment under Civ.R. 60(B)(5) provides broader grounds for relief than fraud on the court. The record in this case shows that plaintiff could not have raised these matters in her prior direct appeal or in any other way because they are based on circumstances which were not of record or discovered until more than one year following the modification. Although plaintiff's motion can be construed to sufficiently raise any other reason justifying relief from judgment under Civ.R. 60(B)(5), we agree with the trial court that her specific claims of fraud on the court by defendant's current counsel were not adequately supported to warrant a hearing. Her claims stem from the fact that he entered a notice of appearance as co-counsel in July 1992, prior to defendant's filing of the allegedly false affidavit of March 5, 1993. However, defendant's former counsel notarized the document and used it when filing objections to the referee's report. There is no indication that defendant's current counsel had any role whatsoever concerning the 1993 affidavit or knew that it was false. -9- Her remaining claims of fraud on the court by counsel relate to actions taken by current counsel occurring after the 1994 child support modification order. She argues that current counsel opposed discovery in subsequent proceedings and was present during a deposition when defendant allegedly offered perjured testimony. According to her argument, however, the alleged fraud on the court was committed by the time the court issued its May 9, 1994 child support modification order. Accordingly, even if true, her claims involving subsequent actions do not relate to the alleged false income statement, which resulted in the reduction of child support. As a result, the trial court could properly disregard these claims of fraud on the court by current counsel. Nor has she cited any authority to support her contentions to the contrary. Meritorious Claim or Defense Finally, the record also shows, contrary to the trial court's one-paragraph opinion, that plaintiff presented a meritorious claim or defense. Plaintiff argued that defendant's violation of the 1988 wage support order and misrepresentation and concealment of income over a period of years improperly reduced his monthly child support obligation from approximately $1,800 to $832.92 for his three children. These allegations sufficiently allege a meritorious claim or defense to warrant a hearing. It is well established that the moving party is not required to prove the claim or defense by a preponderance of the evidence to warrant a hearing. Colley v. Bazzell (1980), 64 Ohio St.2d 243, 247 n.3. Rather, the purpose of the evidentiary hearing is to -10- permit the moving party to carry its burden of persuasion concerning the claim or defense after it has been sufficiently raised and supported by some evidence as in this case. Conclusion The domestic relations court improperly denied plaintiff's Civ.R. 60(B) motion without conducting an evidentiary hearing. The trial court's ruling was particularly unusual because defendant sought additional time to respond and had not even filed a response to the motion before the trial court denied it. We recognize that the case has become embroiled in what may seem to be endless litigation; however, the motion in this case raised serious allegations and was supported by some evidence to merit further consideration. Under the circumstances, we reverse and remand for the trial court to conduct an evidentiary hearing. Accordingly, the sole assignment of error is well-taken. Judgment reversed and remanded for further proceedings. -11- This cause is reversed and remanded for further proceedings. It is, therefore, ordered that appellant recover of appellee her costs herein taxed. It is ordered that a special mandate be sent to said 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. BLACKMON, A.J., McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .