Rodeno v. Mezenski

2022-Ohio-1176

PETER RODENO, EXECUTOR OF THE ESTATE OF DANIEL A. RODENO, Plaintiff-Appellee, v. ALAN MEZENSKI, GUARDIAN OF KAREN L. RODENO, Defendant-Appellant.

No. 111030

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 7, 2022

Civil Appeal from the Cuyahoga County Common Pleas Court Domestic Relations Division Case No. DR-18-372371

JUDGMENT AFFIRMED

Eloff and Wilson, L.L.P., Kathryn Gonser Eloff and James Matthew Wilson; Milano Attorneys & Counselors at Law, Jay Milano and Kate Pruchnicki, for appellee.

Mark A. Ziccarelli, for appellant.

JOURNAL ENTRY AND OPINION

EILEEN A.GALLAGHER, JUDGE

{¶ 1} In this accelerated appeal, appellant Alan Mezenski, guardian of Karen L. Rodeno, appeals from the trial court's order denying his motion for relief from judgment pursuant to Civ.R. 60(B)(5). Mezenski sought to vacate the trial court's final judgment entry of divorce which granted a divorce between Daniel Rodeno ("Daniel") and Mezenski's sister, Karen Rodeno ("Karen"), divided assets and liabilities and ordered the payment of spousal support to Karen. Mezenski claimed that Karen was entitled to relief from judgment under Civ.R. 60(B)(5) because (1) Karen was incompetent at the time of the divorce decree and (2) it was "no longer equitable to enforce" the divorce decree. Mezenski contends that the trial court abused its discretion in failing to appoint a guardian ad litem to protect Karen's interests during the divorce proceedings and in denying his motion without a hearing because the motion set forth sufficient operative facts entitling Karen to relief from judgment under Civ.R. 60(B)(5).

{¶ 2} For the reasons that follow, we affirm.

Procedural and Factual Background

{¶ 3} Daniel and Karen were married on October 8, 1993. They had no children together. On June 15, 2018, Daniel filed a complaint for divorce, alleging that the couple was incompatible. Karen was personally served with a copy of the complaint, but she did not file an answer and she did not appear for the divorce hearing held on August 24, 2018. Following the hearing, the trial court issued a divorce decree (the "divorce decree"), granting the parties a divorce based on incompatibility, dividing the parties' "separate property, marital property and debts acquired during the marriage" and ordering Daniel to pay Karen $3, 000 a month in spousal support for 48 months.

{¶ 4} Daniel was awarded the parties' interest in two residential properties located in Westlake, Ohio and Berea, Ohio and was assigned the debt associated with those properties, $321, 888 and $93, 446.32, respectively. He was also awarded savings and checking accounts valued at $12 000, an IRA valued at $567, 410.87, an investment account valued at $93, 817.87 and a 2011 Mercedes E350 valued at $18, 000. Karen was awarded a checking account valued at $125, personal jewelry valued at $2, 000, an IRA valued at $80, 962.73 and an investment account valued at $2, 200. Karen also retained a monthly social security benefit of $1, 569.10 and a monthly pension benefit of $419.96.

{¶ 5} The trial court found that the division of property, "though not equal," was "equitable" because the marriage was "a second marriage for both" parties and "a significant portion" of Daniel's IRA was "premarital." The trial court's August 24, 2018 journal entry, at the conclusion of the section addressing spousal support, states that "[t]he [c]ourt shall not retain jurisdiction to modify this order."

{¶ 6} Daniel died on May 28, 2020. On October 1, 2020, the probate court appointed Mezenski guardian of Karen's person and estate in In the Matter of the Guardianship of Karen Rodeno, Cuyahoga P.C. No. 2020GRD254156 (the "probate case").

{¶ 7} On May 25, 2021 - more than two-and-one-half years after the parties' divorce - Mezenski filed a "motion for relief from judgment of August 24, 2018 and request for full evidentiary hearing." Mezenski requested that the trial court vacate the divorce decree and "grant [Karen] relief from the division of assets and liabilities and the non-payment [sic] of spousal support." Mezenski claimed that Karen's incompetence, combined with an inequitable property division, the payment of inadequate spousal support, Karen's failure to enter an appearance in the divorce proceeding, Daniel's "knowledge of her incompetence, yet proceeding to a divorce" and the trial court's failure to appoint a guardian ad litem to protect her interests pursuant to Civ.R. 17(B) constituted "any other reason justifying relief from judgment" under Civ.R. 60(B)(5).

{¶ 8} Mezenski asserted that, at the time of the divorce proceedings, Karen was 67 years old and had been living in an assisted living facility for several years. He claimed that "medical evidence," including two "expert evaluations," established that Karen had been diagnosed with Parkinson's Disease with dementia, had severe cognitive and physical impairment and was unable to care for herself or manage her finances and property. Mezenski further asserted that the division of assets and liabilities set forth in the divorce decree was "no longer prospectively equitable" because (1) the divorce decree provided a "minimal amount of spousal support of only four (4) years on a twenty-five (25) year marriage," (2) the Westlake, Ohio property had "a value in 2018 according to the Cuyahoga County website of over $657, 000.00 * * * leaving equity of approximately $330, 000.00, which was retained by [Daniel]," (3) the Berea, Ohio property awarded to Daniel had a "value of over $115, 000.00" according to "[t]he Cuyahoga County's website," "with only $93, 000.00 owed" and (4) "[Daniel] retained the savings account, checking account, IRA, and a motor vehicle, worth in excess of $691, 000.00, whereas [the value of the] assets that [Karen] retained was a little over $85, 000.00." Mezenski also alleged that Daniel had "an ownership interest in a very successful business" that was "not disclosed at the time of the divorce."

{¶ 9} Mezenski claimed that the lengthy delay in filing the motion was because he had "only recently" acquired "evidence that [Karen] had an expert evaluation completed on December 7, 2017 indicating her incompetence" and due to delays in opening an estate following Daniel's death "in which to initiate litigation concerning this matter." The motion was served on appellee Peter Rodeno, executor of the estate of Daniel A. Rodeno ("Peter"), on or about June 14, 2021.

{¶10} On July 15, 2021, Mezenski filed an "amended motion" for relief from judgment in which he submitted four exhibits in support of his motion: (1) a copy of the August 24, 2018 divorce decree, (2) a copy of a statement of expert evaluation (Probate Court Form 17.1) executed by Michael J. Dobrovich, D.O., relating to an evaluation of Karen conducted on July 23, 2020, (3) a copy of the October 1, 2020 magistrate's decision and "judgment entry granting guardianship" in the probate case and (4) a copy of a July 17, 2020 letter from Mezenski's counsel to Dr. Hubert Fernandez, indicating that he had been retained to file a guardianship for Karen and requesting that he complete and sign a statement of expert evaluation (Probate Court Form 17.1) for Karen, and a copy of a statement of expert evaluation, signed by an unidentified evaluator on September 3, 2020, purportedly relating to an evaluation of Karen conducted at the Cleveland Clinic on December 7, 2017.

{¶ 11} Peter opposed the motion on the grounds that Mezenski could not satisfy the requirements for relief under Civ.R. 60(B). Peter argued that the motion should be denied because (1) Mezenski's motion was not supported by "sworn allegations of operative fact" or operative facts that were otherwise "in a form that meets evidentiary standards," (2) Mezenski had not established any grounds for relief under Civ.R. 60(B), (3) Mezenski's motion was not filed within a reasonable time and (4) Mezenski had failed to establish that he has a meritorious claim or defense because (i) the divorce proceedings abated upon Daniel's death (and, as such, the trial court lacked jurisdiction to do anything other than enforce the rights fixed by the divorce decree pursuant to R.C. 2101.24 and 3105.011), (ii) the trial court lacked jurisdiction to modify the spousal support award or property division pursuant to R.C. 3105.18 and 3105.171 and (iii) any claims against Daniel's estate would be time-barred under R.C. 2117.06.

{¶ 12} On October 28, 2021, the trial court denied the motion, indicating that it was "constrained" by the holdings in Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, and Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460. Specifically, the trial court held that because the divorce decree did not reserve jurisdiction to modify spousal support or the property division and because the motion was filed "almost three years after the decree," the court was "without jurisdiction to grant the relief sought."

{¶ 13} Mezenski appealed, raising the following three assignments of error for review:

Assignment of Error No. 1: The trial court abused its discretion by failing to grant appellant's motion for relief from judgment without holding a hearing where appellant has alleged operative facts warranting relief under Civ.R. 60(B)(5).

Assignment of Error No. 2: The trial court abused its discretion by failing to appoint a guardian ad litem for the protection of appellant pursuant to Ohio Civ.R. 17(B), as she was an incompetent person.

Assignment of Error No. 3: The trial court abused its discretion by dismissing appellant's motion for relief from judgment based on its conclusion that it was without jurisdiction to grant the relief requested.

{¶ 14} Mezenski's assignments of error are...