COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69987 LORRAINE F. MIHOVK, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION DENNIS J. PAULSON, fka DENNIS : MIHOVK, : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 19, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Domestic Relations Division : Case No. D-120780 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: John D. Sutula 920 Terminal Tower 50 Public Square Cleveland, Ohio 44113 For defendant-appellant: Edward L. Joseph JOSEPH & ASSOCIATES 2403 St. Clair Avenue Cleveland, Ohio 44114 -2- NAHRA, J.: Defendant-appellant Dennis Paulson, formerly known as Dennis P. Mihovk, appeals from the trial court order which denied his motion for relief from judgment. Appellant was divorced from plaintiff-appellee Lorraine F. Mihovk on January 9, 1986. On January 14, 1986, the trial court issued a nunc pro tunc judgment entry modifying the spousal support ordered in the divorce decree. Appellant was ordered to pay appellee's attorney fees in the amount of $22,500.00 and also $300.00 per week to appellee for a period of six years or until further order of the court. Appellant appealed the trial court's judgment entry of divorce and on January 29, 1987, the trial court's judgment was affirmed by this court in App. No. 51528. On May 17, 1988, appellee filed in the trial court a Motion to Show Cause, alleging appellant had failed to comply with the spousal support order. Contemporaneously, appellee filed a "Motion to Designate Person to Serve Process, Ex Parte" and a prepared journal entry to that effect for the trial court, which the trial court signed. On May 23, 1988, the trial court's clerk sent a form to appellee's counsel, requesting him to furnish appellant's address in order that appellee's Motion to Show Cause could be set for a hearing and notice issue to appellant. -3- On May 25, 1988, appellee responded to the letter, notifying the trial court that appellant's address was the following: 132 South East 17th Street Suite No. 400 Ft. Lauderdale, Florida 33316 1 On June 9, 1988, appellant, by and through counsel, filed a Motion to Reduce Alimony. Therein, appellant indicated there had been a change in his financial circumstances. On July 1, 1988, the trial court issued a judgment entry that a hearing was set for August 17, 1988. This judgment entry specifically stated the hearing was on the "Motion to Show Cause." The record does not reflect whether the trial court's notice was sent to appellant personally or to his attorney. However, in response to the notice that a hearing would be held on the "Motion to Show Cause," appellant's counsel on August 8, 1988 requested a continuance of the hearing. On October 18, 1988, appellant, by and through counsel, filed a second motion for a continuance of the hearing. In his brief in support of the motion, counsel stated he was terminally ill and requested more time in order that appellant could "obtain new counsel." That same day, appellant's counsel filed a motion to withdraw from the case. Both motions stated they had been served on appellee's attorney. Although the judgment entry of July 1, 1988 set a hearing on only the Motion to Show Cause, appellant's 1 Appellant's counsel by this time was a different attorney from the one who had handled both appellant's divorce and appellant's appeal of the divorce decree. -4- original motion for a continuance referred to the hearing on "motions." On October 25, 1988, the trial court granted the second motion to continue and the motion to withdraw as counsel. Thereafter, no attorney filed an appearance on appellant's behalf, and appellant did not notify the trial court of any change of address. On January 25, 1989, the record reflects a referee's report was filed. The report stated that a hearing on the two motions had been held on January 11, 1989. One of the referee's findings was that service of notice of the hearing "was duly and properly made." The referee noted that neither appellant nor his attorney was present at the hearing. The referee recommended in the report that appellant's motion to modify alimony be denied "for want of prosecution." He further recommended that appellee's Motion to Show Cause be granted, and judgment be awarded to appellee for unpaid spousal support in the amount of $51,480.00, plus $500.00 in attorney fees. A copy of the referee's report was mailed to appellant at the Florida address. On February 24, 1989, the trial court issued a judgment entry adopting the referee's report. The judgment entry stated in pertinent part: . . . ... appearances were made by Plaintiff and counsel, Defendant did not appear although duly served. The Court finds that service upon said motion was duly and properly made .... . . . -5- The Court ... finds that a copy of the Referee's report was filed and delivered to both parties or their counsel on January 23, 1989. A copy was mailed to John D. Sutula, Esq. Dennis Paul Mihovk, Defendant 1323 South East 17th Street, Suite 400 Ft. Lauderdale, Florida 33316 No timely objections were filed thereto and therefore the parties are found to have waived their right to any further hearing thereon. Thus, appellee was granted judgment against appellant in the amount of $51,480.00 plus $500.00 in attorney fees. Approximately four years later, on March 23, 1993, appellee requested and obtained a certificate of judgment from the trial court clerk's office. The record reflects that on February 23, 1994, appellee attempted to enforce the judgment by filing an execution action in Florida. Attached to the complaint was the affidavit of one of appellee's attorneys, who stated appellant's name was "Dennis Paulson a/k/a Dennis Mihovk" and his address was now 130 S.E. 7th Street, Apt. 5, Deerfield Beach, Florida 33441. On June 21, 1994, appellant filed in the trial court a motion for relief from judgment pursuant to Civ.R. 60(B) and a motion for stay of execution of the judgment. In his brief in support of the motion, appellant argued the judgment was either void or voidable for the following reasons: 1) the trial court lacked personal jurisdiction over him since he was never served with a copy of appellee's Motion to Show Cause; 2) he was not notified of the January 11, 1989 hearing; 3) he never -6- received a copy of either the referee's report or the judgment entry of February 24, 1989; and 4) appellee falsely both used an incorrect address for appellant and failed to disclose "relevant evidence" at the hearing. Appellant's affidavit was attached to his motion. Therein, appellant stated he had used the Fort Lauderdale address for only three months, viz., from January through March, 1986. He further stated in pertinent part: That affiant's ex-wife was aware of his residence address from the time he moved to Florida until she filed her motion to show cause on May 17, 1988. That the affiant does not believe that he was ever served with a copy of Plaintiff's motion to show cause. . . . That affiant was never informed by anyone as to the date that the case was to be heard. That affiant had no knowledge about the hearing on January , (sic) 1989, before Referee Robert P. O'Linn. That affiant never received a copy of the report of referee. That affiant never received a copy of the Court order. That affiant had no knowledge of the order until this year, when the order was transferred to Florida and an execution action was filed by his ex-wife's attorney, Howard S. Friedman. That affiant had been in constant communication with his ex-wife over the years and at no time did she inform him of the hearing and subsequent Court order. -7- Further, the Plaintiff may have committed fraud upon the Court by failing to disclose to the Court substantial sums received by her as satisfaction of the various orders of the Court. (Emphasis added.) Appellant also attached to his motion copies of what purport to be postal returns to the trial court. These indicate the referee's report and the February 24, 1989 judgment entry mailed to appellant at the Ft. Lauderdale address were returned as undeliverable. On September 23, 1994, appellee filed a brief, supported by her affidavit, in opposition to appellant's motion. Appellee averred that appellant had been "personally served" with her Motion to Show Cause. She further stated that since that time, appellant had returned to the Cleveland area "to conduct business" and, thus, had the opportunity to check the trial court records. Contemporaneously, appellee filed a second motion to show cause concerning appellant's failure to comply with the previous trial court orders. On May 23, 1994, a hearing was held before a referee on appellant's motion for relief from judgment and appellee's second motion to show cause. Appellant appeared with new counsel. No transcript of the hearing was included in the record on appeal. See App.R. 9(A). Subsequently, on October 3, 1995, the referee issued his report and recommendations. The referee made the following findings: 1) appellant had submitted to the jurisdiction of the -8- trial court both by filing his motion to modify spousal support and by his attorney's requests for continuances of the hearing; 2) appellant had not received notice of the January 11, 1989 hearing; 3) appellant had failed to either obtain new counsel or provide appellee or the trial court with a proper address between October 1988 and June 1994; 4) appellant made some payments to appellee between April 1989 and March 1993 but these were not in satisfaction of the February 1989 judgment; 5) appellant stated to appellee "in February 1993 ... that she would never receive any monies from the [February 1989] judgment;" and 6) appellant had the ability to comply with the spousal support obligation. The referee concluded that appellant had failed to meet the requirements of a successful Civ.R. 60(B) motion and recommended the motion be denied. On October 16, 1995, appellant filed his objections to the report. Therein, he stated that since the "material facts" were not in dispute, no transcript of the hearing before the referee was "necessary" for the trial court to determine the issues. On December 2, 1995, the trial court overruled appellant's objections and adopted the referee's report. Appellant's motion for relief from judgment was denied and appellee's second motion to show cause was granted. Thus, appellee was granted judgment in the amount of $31,845.85 plus $2,000.00 in attorney fees. The trial court ordered appellant to pay appellee that amount or be found in contempt of court, and also ordered him to pay appellee $22,551.20 -9- pursuant to the original divorce decree. Moreover, appellee was permitted "to execute on any prior judgment." Appellant has instituted a timely appeal of the foregoing order, stating the following as his assignment of error: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED THE APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT: A. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PROCEEDED TO TRIAL WITHOUT PROPER SERVICE OF THE MOTION BEING MADE ON THE APPELLANT. B. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PROCEEDED TO TRIAL WITHOUT PROPER NOTICE OF THE HEARING BEING GIVEN TO THE APPELLANT. C. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ISSUED THE REPORT OF REFEREE WITHOUT PROPER NOTICE BEING GIVEN TO THE APPELLANT. D. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ISSUED THE JUDGMENT WITHOUT PROPER NOTICE BEING GIVEN TO THE APPELLANT. Appellant argues the trial court improperly denied his motion for relief from judgment. He argues further that the February 24, 1989 judgment was void ab initio because the trial court lacked personal jurisdiction over him. Neither of appellant's arguments has merit. Civ.R. 60(B) states in pertinent part: RULE 60. Relief from judgment or order . . . (B) Mistakes, inadvertence; excusable neglect; newly discovered evidence; fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, -10- order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; ... or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under the subdivision (B) does not affect the finality of a judgment or suspend its operation. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules. (Emphasis added.) A successful Civ.R. 60(B) motion has three components, i.e., 1) timeliness, 2) grounds under Civ.R. 60(B), and 3) a meritorious defense or claim. GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146. Appellant was therefore required to allege operative facts relating to these three requirements. If any one of these three requirements is not met, the motion should be overruled. Svoboda v. Brunswick (1983), 6 Ohio St.3d 348. Moreover, the question of whether relief should be granted is left to the sound discretion of the trial court. Griffey v. Rajan (1987), 33 Ohio St.3d 75; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97. In this case, appellant met the second requirement, viz., that of grounds under either Civ.R. 60(B)(1) or (5). Although the referee's report of January 11, 1989 states appellant received notice of the hearing, the record actually reveals the trial court -11- neither made a journal entry concerning the hearing date nor sent any notice of the hearing date. It is true that, in general, parties are expected to keep themselves informed of the progress of their case, see, e.g., State Farm Mut. Auto. Ins. Co. v. Peller (1989), 63 Ohio App.3d 357. Nevertheless, parties are "entitled to notice of a hearing [by] the setting of the case on the docket." Ries Flooring Co. v. Dileno Constr. Co. (1977), 53 Ohio App.2d 255, 259. In Ohio Valley Radiology Assoc., Inc. v. Valley Hosp. Assn. (1986), 28 Ohio St.3d 118, 124, the Supreme Court stated the following: ... Ohio courts have traditionally held that while some form of notice of a trial date is required to satisfy due process, an entry of the date of trial on the court's docket constitutes reasonable, constructive notice of that fact. ... ... [I]n a case such as this in which the plaintiffs-appellees received no other type of notice, they were at least entitled to the constructive notice that comes from the court's setting down the trial date upon its docket. We find nothing in the record to indicate that the plaintiffs-appellees had reasonable notice, constructive or otherwise, of the trial date. It is axiomatic that "[a] court of record speaks only through its journal and not by oral pronouncement ...." Schenley v. Kauth (1953), 160 Ohio St. 109, paragraph one of the syllabus. Not only was the date of the hearing not recorded on the docket, there is no reliable evidence contained in the record to indicate any notice by the court of the hearing date was sent to the parties. Cf. State Farm Mut. Auto Ins. Co. v. Peller, supra. -12- Therefore, regarding the second requirement of a successful Civ.R. 60(B) motion, appellant presented sufficient evidence to prove there existed a justifiable reason sufficient to entitle him to relief from judgment. Weaver v. Colwell Financial Corp. (1992), 73 Ohio App.3d 139. However, it is apparent appellant failed to meet the other two necessary requirements. As noted by the referee, appellant failed to present evidence that he had a meritorious defense to appellee's first Motion to Show Cause. The referee stated: Had Defendant been present at the 1989 hearing, ... Defendant would have been unable to demonstrate any payment of spousal support prior to the day of hearing. All of the payments which Defendant maintains should have been credited were made after April 1989. The payments, which the parties have stipulated to, were made to the Plaintiff by adult children and not by Defendant. Defendant maintained in his testimony that if his former wife did not collect it, it was her fault as she was in charge. Defendant fails to recognize that a valid Court order was issued in 1986 which obligated him to pay spousal support for a period of six (6) years. (Emphasis added.) Since this court lacks a transcript in order to evaluate the testimony of the witnesses at the hearing on appellant's motion for relief from judgment, the referee's findings in this regard must be accorded deference. See, e.g., Farina v. Perri (Mar. 3, 1994), Cuyahoga App. No. 64791, unreported; Williams v. Cotton (May 26, 1994), Cuyahoga App. No. 66312, unreported. As to the Civ.R. 60(B) requirement of timeliness, although the referee stated appellant met it, the record does not support that assessment for two reasons. -13- First, although appellant intimated in his motion that appellee may have committed a fraud in presenting her evidence at the January 11, 1989 hearing, Civ.R. 60(B) requires a motion for relief from judgment based upon that ground to be made within one year of the judgment. Second, the record demonstrates appellant was aware of the February 24, 1989 judgment, at the latest, by February 1994 when appellee filed her Florida action for execution upon it. Appellant did not file his motion for relief from judgment, however, until June 21, 1994, five months later. Appellant's affidavit attached to his motion for relief from judgment failed to explain this delay. A motion filed pursuant to Civ.R. 60(B)(5) still must be made "within a reasonable time." The lapse of five months between appellant's discovery of a judgment against him in the amount of over $51,000.00 and subsequent filing of his motion for relief from it hardly seems reasonable. Therefore, since appellant failed to meet all requirements of a successful Civ.R. 60(B) motion, the trial court did not abuse its discretion in denying his motion for relief from judgment. Svoboda v. Brunswick, supra; GTE Automatic Electric, Inc. v. ARC Industries, Inc., supra. -14- Appellant presents the further argument that the February 24, 2 1989 judgment was void. He contends that since the record reflects appellee failed to comply with the requirements of Civ.R. 75(I) regarding service of her first Motion to Show Cause, the trial court lacked personal jurisdiction over him. In Maryhew v. Yova (1984), 11 Ohio St.3d 154 at 156-157, the court stated as follows: In order for a judgment to be rendered against a defendant when he is not served with process, there must be a showing upon the record that the defendant has voluntarily submitted himself to the court's jurisdiction or committed other acts which constitute a waiver of the jurisdictional defense. (Emphasis added.) See, also, O.B. Corp. v. Cordell (1988), 47 Ohio App.3d 170, headnote 1; Dayton Morris Plan Bank v. Graham (1934), 47 Ohio App. 310, headnotes 4, 7 and 8. In Garnett v. Garnett (August 7, 1986), Cuyahoga App. No. 50857, unreported, this court held a party waived service of a motion pursuant to Civ.R. 75(I) by defending against the motion on the merits. Similarly, in Joseph v. Lastoria (Oct. 31, 1988), Clermont App. No. CA88-05-040, unreported, the court held that a party's filing of a request for production of documents which related to the disputed motion constituted a waiver of insufficient 2 It has been held that Civ.R. 60(B) applies only to judgments that are voidable. See, e.g., Patton v. Diemer (1988), 35 Ohio St.3d 68; Dairyland Ins. Co. v. Forgus (1989), 58 Ohio App.3d 78; Fifth Street Realty Co. v. Clawson (June 14, 1995), Lorain App. No. 94CA005996, unreported; cf. Sutton v. Sutton (Mar. 12, 1992), Cuyahoga App. No. 61413 & 61732, unreported; Rafalski v. Oates (1984), 17 Ohio App.3d 65. -15- service, since it showed a "clear intent to appear and defend on the merits ...." Id. at p. 5. In this case, appellant filed his motion to reduce alimony only three weeks after appellee filed her first Motion to Show Cause. The referee found appellant's assertion that his motion was filed "without his knowledge or authorization," rather than in response to his ex-wife's motion, "lacks credibility." Based upon the limited record before this court, the referee's finding is entitled to respect. Appellant's motion clearly demonstrated his intent to defend against appellee's motion on its merits. Cooper v. Cooper (1983), 10 Ohio App.3d 143; Longshore v. White (May 19, 1994), Cuyahoga App. No. 66363, unreported. Moreover, the record reflects appellant was aware that his attorney had filed both the motion to reduce alimony and continuances of the hearing on the Motion to Show Cause on his behalf. The referee specifically stated that "it [was] clear" that during the relevant time period, appellant and his attorney "had a close personal and business relationship," stayed in each other's homes when visiting, and, further, that appellant knew "his attorney was attempting to reopen this case." Clearly, appellant ratified his attorney's acts and, thus, voluntarily submitted himself to the trial court's jurisdiction. See, e.g., Carson v. Carson (1989), 62 Ohio App.3d 670; Zigmont v. Toto (July 28, 1994), Cuyahoga App. Nos. 65927, 65928, unreported. See, also, GTE Automatic Electric v. ARC Industries, supra; Dayton Morris Plan -16- Bank v. Graham, supra. Consequently, the trial court had jurisdiction to determine appellee's first Motion to Show Cause. For the foregoing reasons, the trial court neither abused its discretion in denying appellant's motion for relief from judgment nor erred in assuming personal jurisdiction over him. Accordingly, appellant's assignment of error is overruled. The order of the trial court is affirmed. -17- 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 Common Pleas Court -- Domestic Relations Division 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. SPELLACY, C.J., and KARPINSKI, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .