Vasko v. Vasko

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[Cite as Vasko v. Vasko, 2005-Ohio-3188.] COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT CONNIE L. VASKO Plaintiff-Appellee -vsWILLIAM R. VASKO Defendant-Appellant : : : : : : : : : JUDGES: Sheila G. Farmer, P.J. John W. Wise, J. Julie A. Edwards, J. Case No. 04 CA 14 OPINION CHARACTER OF PROCEEDING: Civil Appeal From Guernsey County Court of Common Pleas Case 02 DR 526 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: June 23, 2005 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant DANIEL G. PADDEN 139 Courthouse Square Cambridge, OH 43725-0640 JOSEPH H. BROCKWELL 811 Fourth Street Marietta, OH 45750 [Cite as Vasko v. Vasko, 2005-Ohio-3188.] Edwards, J. {¶1} Defendant-appellant William Vasko appeals from the May 3, 2004, Judgment Entry of the Guernsey County Court of Common Pleas. STATEMENT OF THE FACTS AND CASE {¶2} Appellant William Vasko and appellee Connie Vasko were married on December 27, 1969. On November 4, 2002, appellee filed a complaint for divorce against appellant in the Guernsey County Court of Common Pleas. At the time the complaint was filed, all of the parties children were adults. {¶3} A contested divorce trial was held before the trial court on October 20, 2003. Pursuant to a Decree of Divorce filed on December 31, 2003, the trial court ordered appellant to pay spousal support to appellee in the amount of $500.00 a month for eight years. The trial court further awarded appellee one-half of appellant s pension due to the financial misconduct of the Defendant [appellant] described in Findings of Fact No. 17, 18 and 19. The trial court, in the decree, specifically made the following findings: {¶4} 17. The Court further finds that at the time of the parties separation, the Defendant had $32,027.49 in Atlanta Postal Credit Union Account #0000042390 in the name of William R. Vasko and that said account now has $700.00 and a Wesbanco account that previously had $5,000.00 but now is closed. {¶5} 18. The Court further finds that all sums withdrawn from said account were used by the Defendant, William R. Vasko. {¶6} 19. The Court further finds that from January, 1999, to October, 2001 (34 months) the Defendant deposited only $435.00 of his $1,400.00 plus paycheck bi- Guernsey County App. Case No. 04 CA 14 3 weekly into the Cambridge Savings Bank joint checking account #16700319 leaving the Defendant in excess of $68,000.00 for his use exclusively. {¶7} On January 13, 2004, the trial court received and time-stamped a pro se letter from appellant. Appellant, in his letter to the trial court, challenged the trial court s finding that appellant had committed financial misconduct and also argued that, based on the trial court s award of spousal support and division of appellant s pension, he would be left with only $200.00 a month to live on. The trial court treated appellant s letter as a motion for relief from judgment pursuant to Civ.R. 60(B) and held an evidentiary hearing on the same on February 12, 2004. As memorialized in a Judgment Entry filed on May 3, 2004, the trial court ordered that appellee receive one-half of appellant s net monthly pension. The trial court, however, left undisturbed the award of spousal support to appellee and its finding that appellant had engaged in financial misconduct. {¶8} Appellant now appeals from the trial court s May 3, 2004, Judgment Entry, raising the following assignment of error: {¶9} THE TRIAL COURT S JUDGMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND AN ABUSE OF DISCRETION WHEN IT FOUND THAT APPELLANT HAD COMMITTED FINANCIAL MISCONDUCT AND ORDERED MONTHLY SPOUSAL SUPPORT FOR EIGHT YEARS. I {¶10} Appellant, in his sole assignment of error, argues that the trial court abused its discretion in awarding appellee spousal support for a period of eight years Guernsey County App. Case No. 04 CA 14 4 and in finding that appellant had committed financial misconduct and that the trial court s judgment was against the manifest weight of the evidence. {¶11} As is stated above, the trial court, in the December 31, 2003, Divorce Decree, found that appellant had committed financial misconduct and awarded appellee spousal support in the amount of $500.00 a month for eight years. Appellant did not appeal from such judgment, but rather sent a letter to the trial court on or about January 13, 2004, that the trial court treated as a motion for relief from judgment pursuant to Ohio Civ. R. 60(B). Appellant, in such letter/ motion, challenged the trial court s finding that appellant had engaged in financial misconduct and questioned the fairness of the award of spousal support to appellee. {¶12} However, a party may not use a Civ.R. 60(B) motion as a substitute for a timely appeal. E.g., Doe v. Trumbull County Childrens' Services Board (1986), 28 Ohio St.3d 128, 502 N.E.2d 605. The issues raised in appellant s letter/Civ.R. 60(B) motion were cognizable on direct appeal from the December 31, 2003, Divorce Decree, and constituted a challenge to the correctness of the trial court's original decision on the merits. Such a challenge could have been raised by way of appeal from the December 31, 2003, Divorce Decree, and Civil Rule 60(B) relief is not available as a substitute for such appeal. In other words, the issue raised in this appeal should have been raised in a direct appeal from the Divorce Decree. A 60(B) motion can not be used as a substitute for an appeal and its filing does not toll the time during which a direct appeal must be filed. Guernsey County App. Case No. 04 CA 14 5 {¶13} Appellant s sole assignment of error is, therefore, overruled. {¶14} Accordingly, the judgment of the Guernsey County Court of Common Pleas is affirmed. By: Edwards, J. Farmer, P.J. and Wise, J. concur _________________________________ _________________________________ _________________________________ JUDGES JAE/0415 [Cite as Vasko v. Vasko, 2005-Ohio-3188.] IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT CONNIE L. VASKO Plaintiff-Appellee -vsWILLIAM R. VASKO Defendant-Appellant : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 04 CA 14 For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Guernsey County Court of Common Pleas is affirmed. Costs assessed to appellant. _________________________________ _________________________________ _________________________________ JUDGES

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