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Bennington v. Bennington - Case No. 99CA2686, 2000 Ohio App. LEXIS 4940 (Ct. App. Oct. 13, 2000)

Rule:

An evidentiary hearing is not required where a motion and attached evidentiary material do not contain allegations of operative facts which would warrant relief under Ohio R. Civ. P. 60(B)

Facts:

Mark and Savonna Bennington had a 28-year marriage. Mark filed for divorce and included a separation agreement prepared by the parties. The agreement designated Mark as residential parent of their three minor children and gave him the marital home. Savonna did not appear at the divorce hearing and Mark obtained the divorce. A year later, Savonna moved to set aside the proceedings under Ohio R. Civ. P. 60(B), claiming she had been mentally incompetent at the time and did not know what she was agreeing to. She did not allege her motion was made within a reasonable time. Mark moved to dismiss. The trial court granted the motion without a hearing, finding she failed to allege which section of the rule she relied on, that her allegations were not sworn, and that her failed to allege her motion was brought within a reasonable time. 

Issue:

Did the court abuse its discretion in the dismissal without hearing?

Answer:

No.

Conclusion:

The court affirmed, finding no abuse of discretion in dismissal without hearing. The court held that an evidentiary hearing is not required where a motion and attached evidentiary material do not contain allegations of operative facts which would warrant relief. Moreover, Savonna's motion did not allege operative facts warranting relief and showing it was timely. It was error to require her allegations be sworn but the error was harmless.

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