CourtListener opinion 9372616

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[Cite as Frangioudakis v. Floran, 2023-Ohio-507.]

 IN THE COURT OF APPEALS OF OHIO
 ELEVENTH APPELLATE DISTRICT
 LAKE COUNTY

ELENA FRANGIOUDAKIS, CASE NO. 2022-L-083

 Petitioner-Appellant,
 Civil Appeal from the
 - vs - Court of Common Pleas,
 Domestic Relations Division
DAVID R. FLORAN,

 Petitioner-Appellee. Trial Court No. 2016 DR 000202

 OPINION

 Decided: February 21, 2023
 Judgment: Affirmed

R. Russell Kubyn, Kubyn & Ghaster, 8373 Mentor Avenue, Mentor, OH 44060 (For
Petitioner-Appellant).

Josephine L. Begin, Manning & Clair, Attorneys at Law, 38040 Euclid Avenue,
Willoughby, OH 44094 (For Petitioner-Appellee).

Anna M. Parise, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH
44077 (Guardian Ad Litem).

JOHN J. EKLUND, P.J.

 {¶1} Appellant, Elena Frangioudakis, appeals from the Lake County Court of

Common Pleas, Domestic Relations Division. Appellant filed for divorce from appellee,

David Floran, in 2016 and the matter was resolved through dissolution. Thereafter,

appellant moved to modify the shared parenting plan between the parties. During that

proceeding, the trial court issued several orders. Appellant moved for relief from five of

them under Civ.R. 60(B) and to disqualify appellee's counsel. The basis for the motions
 was alleged conflicts of interest between attorneys and clients on both sides of the

dispute. The trial court denied the motions and appellant has appealed. Appellant has

raised two assignments of error alleging the trial court abused its discretion by denying

her motions.

 {¶2} Having reviewed the record and the applicable caselaw, we affirm.

 Substantive and Procedural History

 {¶3} On April 4, 2016, Appellant filed a Complaint for Divorce against Appellee,

David Floran. The parties filed a motion to convert the divorce to a dissolution, which was

granted in May 2016. In July 2016, the trial court journalized the Decree of Dissolution of

Marriage with Minor Children and incorporated an executed Separation Agreement and

Shared Parenting Plan.

 {¶4} During the dissolution proceedings, appellant was represented by Attorney

Kimberly Baioni. Appellee proceeded pro se. The matter concluded upon the

journalization of the Decree of Dissolution in July 2016. Attorney Baioni never formally

withdrew as counsel.

 {¶5} In May 2017, appellant filed a Motion to Modify Shared Parenting Plan.

Appellant filed the motion to modify through new counsel. Attorney Baioni did not

represent appellant in the reopened proceedings. On June 5, 2017, Attorney James

Reardon entered a Notice of Appearance on behalf of appellee. Attorney Reardon's

representation continued until January 21, 2022, when the court granted his motion to

withdraw as counsel for appellee. At that time, Attorney Josephine Begin filed a Notice of

Substitution of Counsel for appellee.

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Case No. 2022-L-083
 {¶6} On February 10, 2022, appellant filed a "Motion to Set Aside Judgments

and Orders and Request for Hearing" (The Motion) seeking relief from all judgments and

orders issued in the case between June 5, 2017, and January 21, 2022, which

encompassed Attorney Reardon's representation of appellee.

 {¶7} The judgments and orders that appellant sought relief to set aside were all

entered after Attorney Baioni stopped representing appellant. They were:

 (1) October 21, 2019 Agreed Judgment Entry appointing Dr. Afsarnifard to
 conduct psychological evaluations of the minor children.

 (2) April 7, 2020 Agreed Judgment Entry establishing an interim parenting
 time schedule while the children were engaged in online/distance
 learning.

 (3) April 7, 2020 Agreed Judgment Entry ordering each party to enroll in the
 Our Family Wizard program for one year.

 (4) October 15, 2020 Agreed Judgment Entry Modifying the Decree of
 Dissolution and Shared Parenting Plan Dated July 5, 2016.

 (5) November 19, 2020 Agreed Judgment Entry adopting Shared Parenting
 Plan and Order Appointing Parenting Coordinator with all subsequent
 decisions of Parenting Coordinator (dated January 20, 2021, April 27,
 2021, and December 20, 2021).

 (6) July 13, 2021 Qualified Domestic Relations Order.

 {¶8} Appellant claimed that her prior counsel, Attorney Baioni, officed at the

same office as Attorney Reardon and was as an "employee, contractor, member, agent,

and/or representative of Attorney Reardon and/or Carrabine & Reardon Co., LPA at said

office. Attorney Baioni's advertising expenses are paid, at least in part, by Attorney

Reardon and/or Carrabine & Reardon Co., LPA and does work therefor."

 {¶9} Appellee opposed the Motion and said that appellant's assertions were

unfounded. His motion contained an affidavit from Attorney Reardon which stated that

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Case No. 2022-L-083
 Attorney Reardon began to lease office space to Attorney Baioni in January 2020. The

two have separate phone numbers with their own answering services, separate filing

systems and technology platforms for file storage and firm operation, separate websites,

and separate letterheads. Attorney Reardon's affidavit further stated that the two never

worked on the present case simultaneously and that Attorney Reardon had no knowledge

of Attorney Baioni's prior involvement in the case. Attorney Reardon said that the two

refer cases to each other and rarely co-counsel on cases.

 {¶10} While that motion was pending, Attorney Begin continued appellee's

representation. On June 23, 2022, appellant filed a Motion to Disqualify Opposing

Counsel Josephine Begin and requested a full evidentiary hearing. Appellant sought to

disqualify Attorney Begin on the basis that there were several questions surrounding

filings that Attorney Begin had notarized and that she had become a material witness.

Appellee's response argued that the issue was moot because the notarized materials had

been resigned and refiled, thus obviating any possible need to disqualify appellee's

attorney as a material witness.

 {¶11} On August 10, 2022, the court held a Zoom hearing with counsel for both

parties and the guardian ad litem in attendance. The purpose of that hearing was to

address appellant's pending motions.

 {¶12} On August 17, 2022, the trial court issued a judgment entry denying both of

appellant's pending motions. The court denied appellant's motion because it found that

Attorney Baioni and Attorney Reardon operated as separate business entities and that

Attorney Baioni's representation ended four years prior to her office sharing with Attorney

Reardon.

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Case No. 2022-L-083
 {¶13} The court denied appellant's motion to disqualify and request for full

evidentiary hearing, noting the issue was beyond the court's subject matter jurisdiction as

the court was "neither a grievance committee nor Disciplinary Counsel."

 {¶14} On August 25, 2022, appellant timely appealed raising two assignments of

error.

 {¶15} On September 26, 2022, the trial court denied appellant's motion to stay

proceedings pending appeal.

 Assignments of Error and Analysis

 {¶16} Appellant's first assignment of error states:

 {¶17} "[1.] The trial court erred and committed an abuse of discretion by denying

the Appellant's Motion to Set aside Judgments and Order."

 {¶18} We review the trial court's decision to grant or deny a Civ.R. 60(B) motion

for an abuse of discretion. Nationstar Mtge. LLC v. Groves, 11th Dist. Portage No. 2016-

P-0029, 2017-Ohio-887, ¶ 12, citing Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d

1122 (1987). An abuse of discretion is the trial court's "‘failure to exercise sound,

reasonable, and legal decision-making.'" State v. Beechler, 2d Dist. Clark No. 09–CA–

54, 2010–Ohio–1900, ¶ 62, quoting Black's Law Dictionary 11 (8th Ed.2004).

 {¶19} Whether the denial of a Civ.R. 60(B) motion for relief from judgment is a

final appealable order depends on whether the order from which appellant seeks relief is

a final appealable order. JPMorgan Chase Bank v. Hudson, 11th Dist. Ashtabula No.

2016-A-0049, 2017-Ohio-337, ¶ 7. When it was not final, the court of appeals does not

have jurisdiction to review the matter and the appeal must be dismissed. Id. at ¶ 10.

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Case No. 2022-L-083
 {¶20} Civ.R. 60(B) "‘presumes that the underlying order which has been

challenged * * * is, itself a final appealable order.'" Bell v. Bell, 11th Dist. Portage No.

2016-P-0005, 2016-Ohio-4601, ¶ 4, quoting Jack Maxton Chevrolet, Inc. v. Hanbali, 10th

Dist. No; 15AP-816, 2016-Ohio-1244, at ¶ 8. "A judgment granting or denying a motion

to vacate an earlier judgment that was not a final order is likewise not a final order."

JPMorgan Chase Bank v. Hudson, supra, at ¶ 18, citing Lee v. Joseph Horne Co., Inc.,

99 Ohio App.3d 319, 323 (8th Dist. 1995).

 {¶21} Here, among other orders, appellant sought relief from the October 15, 2020

Agreed Judgment Entry Modifying the Decree of Dissolution and Shared Parenting Plan

Dated July 5, 2016 and the November 19, 2020 Agreed Judgment Entry Adopting Shared

Parenting Plan and Order Appointing Parenting Coordinator with all subsequent decisions

of Parenting Coordinator (dated January 20, 2021, April 27, 2021, and December 20,

2021).

 {¶22} R.C. 3109.04(H) provides that "[i]f an appeal is taken from a decision of a

court that grants or modifies a decree allocating parental rights and responsibilities for the

care of children, the court of appeals shall give the case calendar priority and handle it

expeditiously." "Generally, the requirements of R.C. 3109.04 apply to ‘a final appealable

order, not an interlocutory, temporary order.'" Taylor v. Taylor, 9th Dist. Lorain No.

11CA010071, 2012-Ohio-4097, ¶ 6, quoting State ex rel. Thompson v. Spon, 83 Ohio

St.3d 551, 554, 700 N.E.2d 1281 (1998). These two orders were neither interlocutory nor

temporary. Therefore, review of the trial court's denial of appellant's Civ.R. 60(B) motion

is properly before the court.

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Case No. 2022-L-083
 {¶23} Although not all of the orders from which appellant seeks relief are final

appealable orders, "‘[a]ll interlocutory orders and decrees are merged in the final

judgment.'" Horner v. Toledo Hosp., 94 Ohio App.3d 282, 289, 640 N.E.2d 857 (6th

Dist.1993), quoting Moore, Federal Practice (1992) 194–196, Section 110.18; Colom v.

Colom, 58 Ohio St.2d 245, 389 N.E.2d 856 (1979).

 {¶24} To prevail on a Civ.R. 60(B) motion, a movant must satisfy the three-prong

test set out in GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351

N.E.2d 113 (1976). Appellant must demonstrate (1) he has a meritorious claim or defense

to raise if relief is granted; (2) he is entitled to relief under one of the subsections of Civ.R.

60(B); and (3) the motion is made within a reasonable time and, where the grounds for

relief are Civ.R. 60(B)(1), (2), or (3), the motion is made not more than one year after the

judgment was entered. Id. at paragraph two of the syllabus.

 {¶25} Appellant claims she is entitled to relief under Civ.R. 60(B)(4) and (5), which

provide for relief from an order setting aside an order when: "(4) the judgment has been

satisfied, released, or discharged, or a prior judgment upon which it is based has been

reversed or otherwise vacated, or it is no longer equitable that the judgment should have

prospective application; or (5) any other reason justifying relief from judgment."

 {¶26} Addressing the first prong of the GTE test, we must determine whether the

trial court abused its discretion when it concluded that appellant did not demonstrate a

meritorious claim or defense to raise if relief was granted.

 {¶27} First, one of the orders from which appellant seeks relief, the October 2019

order, predates Attorney Baioni beginning to office share with Attorney Reardon.

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Case No. 2022-L-083
 Appellant has not demonstrated a meritorious claim as to any order predating Attorney

Baioni renting office space from Attorney Reardon.

 {¶28} As to the remaining orders, appellant's supporting affidavit has failed to

demonstrate facts to establish her assertions. Her affidavit stated that the court

journalized a Decree of Dissolution on July 5, 2016, while Attorney Baioni represented

her. She also swore she did not waive any conflict of interest and that Attorney Baioni

never formally withdrew as counsel.

 {¶29} These sworn statements, alone, do not demonstrate a meritorious claim or

defense. Appellant's Motion did not provide any other affidavits, exhibits, or other relevant

material which demonstrated that Attorney Baioni "was located at the same address [as

Attorney Reardon] and was an employee, contractor, member, agent, and/or

representative of Attorney Reardon and/or Carrabine & Reardon Co., LPA."

 {¶30} Therefore, appellant's motion has failed to demonstrate a meritorious claim

or defense and does not satisfy the first prong of the GTE test.

 {¶31} As to the second prong of the GTE test, appellant sought relief under Civ.R.

60(B)(4) and (5).

 {¶32} Under Civ.R. 60(B)(4), she claims the judgments were not equitable and

that she was subjected to those inequitable judgments through circumstances that could

not be foreseen or controlled. See Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353

(1986) (holding that Civ.R. 60(B)(4) applies to judgments that are no longer equitable

where those subjected to the judgment did not have the ability to foresee or control, such

as a change in circumstances). Here, appellant merely states that the judgments "are not

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Case No. 2022-L-083
 equitable" but does not identify how the continued application of the judgments will have

prospective unequitable impact on her as set forth in Knapp.

 {¶33} Turning to the Civ.R. 60(B)(5) "catch all" provision, appellant argues she is

entitled to relief because she did not enter into the agreed judgment entries with consent

and mutuality and that appellee had unfair and improper access to confidential and

privileged information. She says this undermines the integrity of the proceedings and

justifies setting the judgments aside.

 {¶34} Unlike appellant's unsupported allegations in her Motion to Disqualify,

appellee filed a response which contained an affidavit from Attorney Reardon. That

affidavit refuted appellant's unsupported claims. In particular, Attorney Reardon said that

he and Attorney Baioni have separate phone numbers with their own answering services,

separate filing systems and technology platforms for file storage and firm operation,

separate websites, and separate letterheads. The office arrangement between the two

would not reasonably appear to the public to be a law firm. See Winblad v. Deskins, 150

Ohio App.3d 527, 2002-Ohio-7092, 782 N.E.2d 160, ¶ 13 (2d Dist.)

 {¶35} In addition, appellant's assertion that Attorney Baioni never formally

withdrew as counsel is misleading. The matter was closed upon the Decree of Dissolution

and later reopened in May 2017 when appellant, with different counsel, filed a Motion to

Modify Shared Parenting Plan. Appellant does not, therefore, legitimately assert that

Attorney Baioni continued to represent her while officing with Attorney Reardon.

 {¶36} Appellant has failed the second prong of the GTE test by failing to

demonstrate entitlement to relief under one of the subsections of Civ.R. 60(B).

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Case No. 2022-L-083
 {¶37} Finally, the third prong of the GTE test requires that relief be sought within

a reasonable time. Appellant seeks relief from judgments spanning a 20-month period

between October 21, 2019, and July 13, 2021, and where she filed for relief seven months

after the final judgment entry. It is impossible to say that appellant has filed within a

reasonable time, because appellant does not state when she or her counsel discovered

that Attorney Baioni began renting office space from Attorney Reardon. Appellant bears

the burden of satisfying each of the Civ.R. 60(B) requirements and has failed to

demonstrate that she filed her motion within a reasonable time.

 {¶38} Accordingly, appellant's first assignment of error is without merit.

 {¶39} Appellant's second assignment of error states:

 {¶40} "[2.] The trial court erred and committed an abuse of discretion by denying

Appellant's Motion to Disqualify Opposing Counsel."

 {¶41} We review a trial court's decision on a motion to disqualify counsel for an

abuse of discretion. Lake Royale Landowners Assn. v. Dengler, 11th Dist. Portage No.

2022-P-0021, 2022-Ohio-2929. ¶ 17. Trial courts have the inherent power to disqualify an

attorney from acting as counsel in a case when the attorney cannot or will not comply with

the Ohio Rules of Professional Conduct and when such action is necessary to protect the

dignity and authority of the court. Reo v. Univ. Hosps. Health Systems, 11th Dist. No.

2018-L-110, 2019-Ohio-1411, 131 N.E.3d 986, ¶ 17. However, disqualification is a drastic

measure which should not be imposed unless "absolutely necessary" due to the potential

for abuse of the "advocate-witness rule." Id., quoting Waliszewski v. Carvavona Builders,

Inc., 127 Ohio App.3d 429, 433, 713 N.E.2d 65 (9th Dist. 1998).

 {¶42} Prof.Cond.R. 3.7 states:

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Case No. 2022-L-083
 A lawyer shall not act as an advocate at a trail in which the lawyer is
 likely to be a necessary witness unless one or more of the following
 applies: (1) the testimony relates to an uncontested issue; (2) the
 testimony relates to the nature and value of legal services rendered
 in the case; (3) the disqualification of the lawyer would
 work substantial hardship on the client. (Emphasis sic).

 {¶43} It is "important for the trial court to follow the proper procedures in

determining whether disqualification is necessary." Reo, at ¶ 17. "The roles of an

advocate and of a witness are inconsistent; the function of an advocate is to advance or

argue the case of another, while that of a witness is to state facts objectively." Mentor

Lagoons, Inc. v. Rubin, 31 Ohio St.3d 256, 257, 510 N.E.2d 379 (1987), citing former EC

5-9. The combination of the two roles may be prejudicial because it may not be clear

whether the testimony of an advocate "should be taken as proof or as analysis of the

proof." Prof.Cond.R. 3.7 Comment 2.

 {¶44} When a trial court reviews a disqualification motion that implicates the

advocate-witness rule, the court must "(1) determine whether the attorney's testimony is

admissible and, if so, (2) determine if disqualification is necessary and whether any of the

exceptions to Prof.Cond.R. 3.7 are applicable." Fordeley v. Fordeley, 11th Dist. Trumbull

No. 2014-T-0079, 2015-Ohio-2610, ¶ 31, citing Baldonado v. Tackett, 6th Dist. Wood No.

WD-08-079, 2009-Ohio-4411, ¶ 20. The burden of proving disqualification falls on the

moving party, while the burden of proving that an exception applies falls on the attorney

seeking to claim the exception. Id., quoting McCormick v. Maiden, 6th Dist. Erie No. E-

12-072, 2014-Ohio-1896, ¶ 11.

 {¶45} Here, appellant argues that Attorney Begin should be disqualified because

she filed two motions which contained affidavits which were "purportedly executed" by

appellee on March 2 and March 30, 2022. She argues that Attorney Begin's notarization
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Case No. 2022-L-083
 of the affidavits made herself a necessary witness because the "facts and circumstances

regarding Attorney Begin's notarization of the affidavits were central to the litigation of the

then-pending motions." However, appellant does not explain why Attorney Begin's

testimony was necessary or what questions arose from her notarization of an affidavit

that could not be answered by any other potential witness.

 {¶46} After appellant filed her motion to disqualify, appellee re-executed and re-

filed the affidavits in question. Appellee argues that appellant's motion to disqualify has

been rendered moot.

Admissibility:

 {¶47} For evidence to be admissible, it must, at a minimum, be relevant. See

Evid.R. 402. To be relevant, evidence must have "any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence." Evid.R. 401.

 {¶48} Appellant has not explained in her motion to disqualify or in her merit brief

what evidence she seeks to elicit from Attorney Begin or why her motion is not moot

because of appellee's re-executed and refiled affidavits. She has not stated why Attorney

Begin's testimony about the execution of affidavit is necessary, or why her potential

questions are central to litigation of the "then-pending motions." She has not made any

assertions to indicate Attorney Begin's testimony would tend to make any fact of

consequence more or less probable than it would be without her testimony.

 {¶49} Typically, a motion to disqualify indicates to the court what testimony a party

intends to seek from the attorney that the motion seeks to disqualify. See e.g., Lake

Royale Landowners Assn., 2022-Ohio-2929, at ¶ 25. The record before us does not

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Case No. 2022-L-083
 contain any evidence or information which would speak to the admissibility of Attorney

Begin's testimony. It is an appellant's duty to "exemplify any alleged errors by reference

to the record." Aurora v. Belinger, 11th Dist. No. 2007-P-0041, 180 Ohio App.3d 178,

2008-Ohio-6772, 904 N.E.2d 916, ¶ 30. Appellant has failed to meet her burden of

demonstrating that Attorney Begin's testimony is relevant.

Necessity:

 {¶50} A necessary witness is someone who can provide material information that

no one else can. Lake Royale Landowners Assn., 2022-Ohio-2929, ¶ 27, quoting Puritas

Metal Prods., Inc. v. Cole, 9th Dist. Lorain No. 07CA009255, 2008-Ohio-4653, ¶ 34,

quoting Mettler v. Mettler, 50 Conn.Supp. 357, 928 A.2d 631 (2007). Therefore,

disqualification may only be warranted if it is likely that the witness' testimony will be

required. Id. The weight of the testimony, the availability of other evidence, and the

significance of the issue are relevant factors to consider. Id. The lawyer is not a necessary

witness if the evidence that they would have offered may be obtained through other

means. Id. at ¶ 28.

 {¶51} Appellant argues Attorney Begin is a necessary witness because she

notarized two documents that appellee signed. However, "‘notarizing a document * * *

does not immediately transform the notarizing lawyer into a necessary witness * * *.'" Lake

Royale Landowners Assn., at ¶ 30, quoting Ohio Board of Prof. Cond., Opinion No 2022-

05, at 2. (June 10, 2022). In many cases, the lawyer is merely confirming the signatory of

the documents appeared and signed or acknowledged the documents in the lawyer's

presence. Id.

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Case No. 2022-L-083
 {¶52} Notaries, unlike lawyers, are not zealously representing the interests of a

client, but "‘rather serve as an impartial observer and guarantor of the authenticity of the

legal acts that they certify.'" Id., quoting Rivera v. Periodicos Todo Bayamon, D.Puerto

Rico No. 93-2123, 1997 WL 43202, *2 (Jan. 23, 1997), fn. 3. Cases finding that a lawyer

is a necessary witness to the signature or notarization of a document typically involve

special circumstances such as the testamentary or mental capacity of the signator. Id. at

¶ 31-32.

 {¶53} Here, where appellee's affidavit was re-executed and notarized by a

different witness, we see no reason why the facts in the underlying matter could not be

established through the testimony of another witness. To the extent the issue is not

rendered entirely moot by the re-execution of the affidavit, the evidence Attorney Begin

would have offered may be obtained through other means. Id. at ¶ 28. Appellant has failed

to meet her burden of demonstrating that Attorney Begin's testimony is necessary.

Evidentiary Hearing:

 {¶54} Appellant also claims that the trial court erred by ruling on her motion

without holding a full evidentiary hearing. In this case, the trial court conducted a Zoom

hearing and ruled on appellant's motion to disqualify without conducting a full evidentiary

hearing.

 {¶55} Although "case law establishes that while a trial court is required to hold a

hearing to consider whether a lawyer should be disqualified under Prof.Cond.R. 3.7, no

particular type of hearing is required. Reo, 2019-Ohio-1411, at ¶ 34.

 {¶56} A full evidentiary hearing on a motion to disqualify is not necessary where

the trial court possessed "sufficient evidence to consider the required factors." Id. at ¶

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Case No. 2022-L-083
 30. Appellant bears the burden of proving disqualification. Here, where her motion to

disqualify failed to state with any particularity why Attorney Begin's testimony was relevant

or necessary, and where appellee filed re-executed affidavits, the trial court acted within

its discretion to rule on the motion to disqualify after conducting a Zoom hearing. See Id.

at ¶ 34.

 {¶57} Furthermore, no transcript of the Zoom hearing is available. Where a

transcript is unavailable, the appellant is still obligated to provide a complete record

pursuant to App.R. 9(C), (D), or (E). Belinger, 2008-Ohio-6772, at ¶ 31. Where portions

of the record that may be necessary for the "resolution of assigned errors are omitted

from the record, an appellate court has nothing to pass upon." Warren v. Clay, 11th Dist.

Trumbull No. 2003-T-0134, 2004-Ohio-4386, ¶ 7. In such cases, a reviewing court "has

no choice but to presume the validity of the lower court's proceedings." Id. In the absence

of an App.R. 9(C) statement of the record asserting error during the Zoom hearing, we

must presume the regularity of proceedings below. See Id.

 {¶58} Accordingly, appellant's second assignment of error is without merit.

 {¶59} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, Domestic Relations Division, is affirmed.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

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