COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73834 EVGENIA SCORDOS : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION MIKE SCORDOS : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. D-254915. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Maureen Fiorilli Zito, Esq., Genesis Building, 6000 Lombardo Center, #610, Cleveland, Ohio, 44131. For Defendant-appellee: Marvin N. Halpern, Esq., Marvin N. Halpern Co., L.P.A., 815 Superior Avenue, N.E., Suite 1623, Cleveland, Ohio, 44114-2702. For Key Bank: Daniel G. Zeiser, Esq., Law Group, Second Floor, 127 Public Square, Cleveland, Ohio, 44114-1306. -2- SWEENEY, JAMES D. J.: Plaintiff-appellant Evgenia Scordos (d.o.b. November 25, 1958) appeals from the trial court's denial of her November 21, 1997 joint motion for relief from judgment (made pursuant to Civ.R. 60) and for attorney fees, costs and expenses. For the reasons adduced below, we affirm. A review of the record on appeal indicates that appellant and defendant-appellee Mike Scordos (d.o.b. October 6, 1944) were married on February 15, 1976. Four children were born as issue of that marriage. These children, three boys and a girl, were born respectively in November of 1976, April of 1979, January of 1981, and December of 1983. Appellant filed for divorce on June 23, 1997. The matter was scheduled for a pretrial hearing on October 22, 1997. The trial court's case designation sheet indicates that appellant declined the court's offer to continue the hearing date to a later date so that she could obtain new counsel because appellant wished to remarry. Thereafter, appellant's retained legal counsel, attorney Herbert Palkovitz, filed a series of customary domestic relations motions and discovery practice before withdrawing as counsel on October 7, 1997. On October 22, 1997, the trial court heard the merits of the action, issuing its judgment entry and decree of divorce on October 23, 1997. See Journal Vol. 3082, pages 267-290. This judgment entry contained within it the separation agreement between the parties, which agreement was personally executed and approved by the parties and by attorney for defendant Mike Scordos, Mr. Marvin -3- Halpern.1 See Journal Vol. 3082, pages 274-282. On October 22, 1997, the magistrate signed its decision of an uncontested divorce with separation agreement. The magistrate's decision was personally executed by both parties and filed with the court on October 24, 1997. On November 21, 1997, appellant filed her joint motion for relief from judgment and motion for attorney fees. On December 10, 1997, the trial court, utilizing a half-sheet entry, denied both post-decree motions stating succinctly, [T]here is no showing of a meritorious defense or claim. It is so ordered. Journal Vol. 3106, page 727.2 The notice of appeal from this ruling was timely filed on January 9, 1998. Three assignments of error are presented for review. Oral appellate argument has been waived by the parties. The first and second assignments of error will be dealt with jointly since they both address the issue of relief from judgment. I THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT, SINCE APPELLANT MET ALL THE ELEMENTS OF GTE AUTOMATIC ELECTRIC v. ARC INDUSTRIES, INC. II 1Mrs. Scordos was acting pro se at this point. 2Defendant-appellant was personally served with a copy of the subject motions on December 9, 1997. There is no indication in the record that appellant filed a brief in opposition to this joint motion. -4- THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT, WITHOUT A HEARING. Without stating it with any specificity, appellant's motion for relief from judgment appears to be premised on fraud or undue influence in the negotiation and/or execution of the separation agreement between the parties. In terms of relief from judgment, an allegation of fraud is covered by Civ.R. 60(B)(3). Appellant complains without elucidation that the property division was not fair to her. The standard for relief from judgment were set forth in Strack v. Pelton (1994), 70 Ohio St.3d 172, 174, 637 N.E.2d 914: In order for a party to prevail on a motion for relief from judgment under Civ.R. 60(B), the movant must demonstrate the following: (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) 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 Elec. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph two of the syllabus. These requirements are independent and in the conjunctive; thus the test is not fulfilled if any one of the requirements is not met. Id. at 151, 1 O.O.3d at 88, 351 N.E.2d at 116. The standard by which we review a decision on a Civ.R. 60(B) motion is abuse of discretion. See Rose Chevrolet, -5- Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564, 566. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578, 581, 607 N.E.2d 914. The question of whether relief should be granted is addressed to the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. In order to have an "abuse" in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. Huffman v. Hair Surgeon (1985), 19 Ohio St.3d 83, 87, 482 N.E.2d 1248. Under Civ.R. 60(B), a movant's burden is only to allege a meritorious defense or claim, not to prove that he will ultimately prevail on the merits. Colley v. Bazell (1980), 64 Ohio St.2d 243, 247, 416 N.E.2d 605. In the case sub judice, the motion for relief does not demonstrate the existence of a meritorious defense or claim. The moving party has not dissected the property division, identified the offending elements of that award, the reasoning as to why such an award was not proper, and authority for determining that the award was so inequitable as to clearly mandate the vacation of that agreed property division. All the moving party alleges is that the marital estate was complex and substantial, that she was without -6- legal counsel at the time of the settlement, and that she was not dealt with fairly in the ultimate division of the marital property as a result of fraud by the defendant-appellee and his counsel. What exactly would be considered a fair distribution of the marital property is not explained by appellant. Absent a claim or defense being presented, the three elements of GTE have not been satisfied and the trial court was bound to deny the subject motion. Also, where a prima facie case for the granting of the motion has not been met by the moving party, to-wit, demonstrating the three GTE elements, the trial court did not err in not conducting an evidentiary hearing prior to denying the motion for relief from judgment. See Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 665 N.E.2d 1102. The first and second assignments of error are overruled. III THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING APPELLANT'S MOTION FOR ATTORNEY FEES, COSTS, AND EXPENSES. The joint motion before the trial court sought the award of attorney fees, etc., as reimbursement for expenses incurred by plaintiff-appellant in the prosecution of the motion for relief from judgment. Since the motion for relief from judgment was without merit, the trial court did not err in denying the motion for attorney fees. The third assignment of error is overruled. Judgment affirmed. -7- It is ordered that appellee recover of appellant his 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, Domestic Relations Division 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. TERRENCE O'DONNELL, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .