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In re Guardianship of Matyaszek12/29/2004
a new issue about whether or not his father attended the hearing is also misplaced. It is true that appellant first argued that his father was not present at the hearing to protect his interests and now raises the specter that his father may have attended but failed to protect his interests. In either scenario, appellant is arguing that he lacked representation at the hearing, regardless of whether his father was present or not. This contention is consistent with his argument throughout these proceedings that he lacked meaningful representation at the hearing. Furthermore, at the hearing on the motion to vacate, the parties argued about whether appellant's father was present at the settlement hearing or not.
{ } Appellee's argument that this Court is precluded from considering appellant's appeal is meritless.
{ } Next we will consider whether appellant's claims are time-barred.
III. The Timeliness of Appellant's Motion
{ } There is no fixed time period within which a motion for relief under Civ.R. 60(B)(5) must be made. Such a motion must, however, be made within a "reasonable time." The trial court, in the exercise of its sound judgment, determines what constitutes a "reasonable time" based on the circumstances in the case. In re Dissolution of Watson (1983), 13OhioApp.3d 344, 346. The court must balance individual equity against considerations of judicial administration and stability of law. Taylor v. Haven (1993), 91 Ohio App.3d 846, 851.
{ } Under Civ.R. 60(B)(5), courts must give greater flexibility to time requirements in cases of a minor in order to protect their rights. Ransone v Lampman (1995), 103 Ohio App.3d 8, 22. This is especially true when the minor is very young when the settlement occurs. Id.
{ } In Ransone, cited by both parties and the Probate Court, the court upheld an eight-year delay on behalf of a minor in an action to vacate the settlement of a paternity suit, while denying the mother's motion to vacate. The Second District recognized that the child's best interests are paramount in determining whether relief from judgment is appropriate. It held that the child was quite young at the time of judgment and could not have been expected to have sought relief in the interim. It is important to note that the child was named in the original action, but the court nonetheless found that her interests were not adequately represented because they may have conflicted with her mother's interests.
{ } Likewise, in Taylor v. Haven, 91 Ohio App.3d 846, the father brought an action to be relieved from a paternity action in which he was ordered to pay child support . He brought the action for relief over twelve years after the judgment. The Fifth District stated that it was not prepared to hold a twelve-year interval between a judgment and the request for relief per se unreasonable because a number of factors should be considered, including the best interest of the child. See, also, DaCosta v. Nemeth (Feb. 9, 1998), 5th Dist. No. 97 CA 0077.
{ } In this case, the Probate Court found that the twelve-and-a-half year delay between the settlement and the motion to vacate was unreasonable as a matter of law. It found that appellant's father had in his possession all the facts regarding the settlement in 1988 to pursue setting aside the judgment. The Probate Court also found that appellant obtained counsel in 1995, and could have brought suit then. The counsel allegedly representing appellant was also representing his father. At the time, appellant was approximately 11 years old. Based on this time frame, the Probate Court found that appellant had not timely sought relief.
{ } This Court disagrees
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