COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69322, 69453 : SHERYL S. DARDEN : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION THOMAS V. DARDEN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 2, 1996 CHARACTER OF PROCEEDING: Civil appeals from the Domestic Relations Division of the Common Pleas Court Case No. D-076923 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOHN J. READY, ESQ. RAYMOND J. COSTANZO, ESQ. 602 Park Building COSTANZO & LAZZARO 140 Public Square 13317 Madison Avenue Cleveland, Ohio 44114-2213 Lakewood, Ohio 44107-4814 - 2 - KARPINSKI, J.: These consolidated appeals arise out of contempt proceedings initiated by plaintiff-appellee Sheryl Darden following defendant-appellant Thomas Darden's failure to pay court-ordered child support. Thomas Darden appeals from the denial of his motions for relief from, or modification of, judgments and the domestic relations court's order executing his ninety-day jail sentence for contempt. The record demonstrates that the Dardens were divorced by a 1977 domestic relations court decree. Sheryl Darden was awarded custody of their minor son, Todd, for whom Thomas Darden was ordered to pay child support. The parties thereafter became embroiled in a lengthy series of child support disputes, which culminated in Sheryl Darden filing several motions for contempt of court during prior proceedings for the failure of Thomas Darden to pay his child support obligations. Sheryl Darden filed her most recent motions for contempt and for attorney fees on March 4, 1994. These motions, along with Thomas Darden's motion to modify child support, proceeded to a hearing on May 18, 1994. Thomas Darden was present, represented by counsel, and entered into a series of stipulations on the record in open court. In an order journalized on June 9, 1994, the domestic relations court thereafter found Thomas Darden in contempt of court and scheduled the matter for further proceedings. - 3 - Thomas Darden and his counsel failed to appear at the hearing scheduled for January 17, 1995. The domestic relations court found Thomas Darden did not comply with his stipulations, reduced his child support arrearages to judgment, awarded attorney fees, and imposed a ninety-day jail sentence for contempt. Thomas Darden did not appeal from the January 17, 1995, order. On May 24, 1995, Thomas Darden filed three consolidated motions: (1) for relief from judgments, (2) to suspend execution of his jail sentence, and (3) in the alternative to modify certain judgments in the court. Sheryl Darden filed a brief in opposition to these motions. Thomas Darden orally raised the additional claim of lack of personal jurisdiction for the first time at the hearing conducted by the trial court on the motions. The parties thereafter submitted supplemental briefs concerning the issue of personal jurisdiction. In an order journalized July 10, 1995, the domestic relations court denied Thomas Darden's consolidated motions and specifically denied his claim of lack of personal jurisdiction. Thomas Darden filed a timely notice of appeal from this order in Court of Appeals Case No. 69322. Following another hearing, the domestic relations court found that Thomas Darden failed to purge himself of his contempt and in an order journalized on August 10, 1995, ordered immediate execution of his ninety-day jail sentence. Thomas Darden filed a timely notice of appeal from this order in Court of Appeals Case - 4 - No. 69453. This court thereafter consolidated the two appeals for hearing and disposition. Thomas Darden's first and second assignments of error in Court of Appeals Case No. 69322 follow: THE TRIAL COURT ERRED IN DENYING APPELLANT'S ORAL MOTION TO VACATE ITS PRIOR FINDING OF CONTEMPT, JAIL SENTENCE AND AWARD OF ATTORNEY FEES JUDGMENTS FOR LACK OF PERSONAL JURISDICTION OVER APPELLANT. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTIONS FOR RELIEF FROM JUDGMENTS AND, ALTERNATIVELY, TO MODIFY JUDGMENTS. These assignments of error lack merit. Thomas Darden generally argues that the domestic relations court lacked personal jurisdiction over him because the contempt motion was not properly served and that he was denied an opportunity to present his defense of inability to pay the amounts awarded. Thomas Darden raised the identical claim of lack of personal jurisdiction both orally and in writing in a supplemental brief pursuant to leave of court. This claim lacks merit. The record unambiguously demonstrates that Thomas Darden waived any objection to the jurisdiction of the domestic relations court over him by appearing, with counsel, and litigating the contempt motion at the May 18, 1994, hearing. It is well established that the failure to raise a claim of lack of personal jurisdiction prior to the hearing on the merits of the motion precludes belatedly raising the claim as in this case. Eugenia Longshore fka White v. Celcie White (May 19, 1994), Cuyahoga App. No. 66363, unreported (citing, inter alia, Carson v. Carson (1989), 62 Ohio - 5 - App.3d 670). Thomas Darden did not even purport to raise this claim until more than one year after the hearing and the trial court's order granting the contempt motion in this case. As noted above, the record shows that Thomas Darden also invoked the continuing jurisdiction of the domestic relations court by filing a motion to modify child support, which motion was consolidated for hearing on May 18, 1994, with Sheryl Darden's motions for contempt and attorney fees. The transcript of the hearing shows that the parties entered into a series of stipulations and that Thomas Darden did not object to the court's exercise of jurisdiction over any issue. As a result, Thomas Darden has failed to show any error concerning this issue. Thomas Darden's remaining arguments are likewise unpersuasive. He contends the trial court improperly denied his motion for relief from judgment and his alternative motion to modify various prior judgments by reducing the monetary awards and contempt jail sentence. It is well established that to warrant relief from judgment under Civ. R. 60(B), the movant must show (1) the motion was timely filed, (2) a meritorious claim or defense exists, and (3) there are grounds for relief under Civ. R. 60(B)(1) through (5). GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146. Failure to establish any of these three elements warrants denying the motion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17. As the domestic relations court noted, Thomas Darden's motion generally requested the court reconsider several of its - 6 - prior rulings and raised issues which should have been raised in 1 prior direct appeals. It is well settled, however, that motions for relief from judgment are not a proper substitute for timely direct appeals. Doe v. Trumbull Cty. Children Services Bd. (1986), 28 Ohio St.3d 128. Thomas Darden's motion for relief from judgment argued that he did not stipulate to the total child support arrearage, the finding of contempt, or the attorney fee awards and that he was denied the opportunity to present a defense; however the motion did not specify any grounds for relief under Civ.R. 60(B). Thomas Darden's brief on appeal contends for the first time that relief was warranted on grounds of "mistake" under Civ.R. 60(B)(1) or "misrepresentation" under Civ.R. 60(B)(3). The record shows, however, no "mistake" or "misrepresentation" of any kind. A comparison of the transcript of the May 18, 1994, hearing with the court's June 9, 1994, order reveals that the order accurately embodies Thomas Darden's stipulations. Although he did not stipulate to a finding of "contempt," the record demonstrates that Thomas Darden stipulated to the facts which the court found to constitute contempt. The record further indicates that Thomas Darden did not subsequently purge himself of contempt by complying with his stipulations. Moreover, although notified at the conclusion of 1 Thomas Darden's motion to vacate sought relief from the following orders: (1) the award of attorney fees in a March 5, 1992, order, (2) the finding of contempt in the June 9, 1994, order, and (3) the jail sentence and attorney fee award in the January 17, 1995, order. - 7 - the May hearing that he was to return for further proceedings scheduled for January 17, 1995, both he and his counsel failed to appear. Sheryl Darden introduced into evidence certified records from the Child Support Enforcement Agency indicating that Thomas Darden did not make any payments following the May 18, 1994, hearing. Counsel for Sheryl Darden also submitted an affidavit to establish the amount and reasonableness of the attorney fees and expense request. Thomas Darden did not appear to contest any of these issues. Under the circumstances, Thomas Darden was not denied an opportunity to present his defense of financial inability to pay, and the domestic relations court did not abuse its discretion by denying his motion for relief, or for modification of, its prior judgments. Accordingly, Thomas Darden's first and second assignments of error in Court of Appeals Case No. 69322 are overruled. Thomas Darden's sole assignment of error in Court of Appeals Case No. 69453 follows: THE TRIAL COURT ERRED IN JAILING APPELLANT ON AUGUST 10, 1995 IRRESPECTIVE OF THE MERITS OF APPELLANT'S APPEAL IN CASE NUMBER 69322. This assignment of error lacks merit. Thomas Darden contends that the domestic relations court abused its discretion by ordering the immediate execution of his ninety-day jail sentence for contempt. Thomas Darden has failed to show any error in the court's order. As noted above, the record demonstrates that Thomas Darden had a long-standing history of failing to satisfy his child - 8 - support obligations. Thomas Darden had previously been found in contempt of court because of stipulations he made during the May 18, 1994, hearing that he would satisfy various arrearages in connection with this particular contempt motion, and because of his subsequent failure to satisfy these obligations or to appear at the hearing scheduled for January 17, 1995. Thomas Darden stipulated that he could, in fact, make various payments and presented absolutely no evidence during the hearings on this contempt motion that he was financially unable to satisfy his obligations. The only information Thomas Darden presented concerning his inability to satisfy his support obligations was attached to his motion to vacate after he failed to appear at the January 17, 1995, hearing. However, the domestic relations court is not required to accept as true the unsigned 1993 income tax return or counsel's hearsay statements concerning Thomas Darden's complete lack of income in 1994. Under the circumstances, because no evidence concerning Thomas Darden's financial inability to make support payments was presented at the original May 18, 1994, hearing, at the subsequent January 17, 1995, hearing, or in his May 24, 1995, motion to vacate, the trial court did not abuse its discretion by ordering execution of the ninety-day contempt jail sentence. Accordingly, Thomas Darden's sole assignment of error in Court of Appeals Case No. 69453 is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Domestic Relations Division of the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, C.J., and HARPER, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and .