COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72918 CATHERINE L. BALOGH : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DAVID L. BALOGH : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION : JULY 2, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Domestic Relations Division : Case No. D-222,601 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: JANET L. KRONENBERG JACOB A. H. KRONENBERG Attorneys at Law 410 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44115-1092 For defendant-appellant JOHN E. MAYER David A. Balogh : Attorney at Law Freedom Square II, #170 6000 Freedom Square Drive Independence, Ohio 44131 For defendant-appellant MICHAEL P. MEEHAN A. Dale Naticchia : Attorney at Law 160 Plaza West Building 20220 Center Ridge Road Rocky River, Ohio 44116 KENNETH A. ROCCO, J.: -2- Appellant appeals the trial court's dismissal of his motion for relief from judgment as moot. Since the lower court had denied appellant's first motion for relief from judgment and appellant's second motion was based on the same allegations, it was not necessary for the trial court to address the alleged meritorious claims or defenses in appellant's second motion. Therefore, the trial court did not abuse its discretion when it dismissed the subsequent motion for relief from judgment as moot. I. Appellee Catherine Lee Balogh and appellant David L. Balogh were married on May 15, 1981. Four children were born as issue of the marriage. Appellee filed a complaint for divorce on November 24, 1992. Appellant filed his answer on December 29, 1992. Appellant's attorney subsequently filed a motion with the court seeking to withdraw as counsel per appellant's request. The court granted the motion on May 27, 1993. Appellant proceeded pro se. On August 2, 1993, the trial court conducted a hearing on the complaint. Appellant failed to appear. The trial court issued a Judgment Entry on August 23, 1993, which acknowledged that the parties had resolved their differences pursuant to a Separation Agreement that had been signed by both parties. The court found the agreement to be fair, just and equitable and incorporated it into its Judgment Entry. The entry also designated appellee as the Residential Parent and Legal Custodian of the minor children, -3- granted appellant visitation in accordance with standard visitation guidelines, and required that appellant pay to appellee the sum of $1,100 per month as child support and also pay for the children's health care needs and health insurance coverage. On June 3, 1994, appellant filed a motion captioned Motion for Relief from Medical Payment Order and Shared Parenting Plan. The motion was assigned number 247951 on the court's docket. On July 21, 1994, appellant filed a motion captioned Motion to Vacate Partial Amount of Support Judgment, Motion for Summary Judgment Per Statute. These motions were assigned numbers 250876 and 250877 on the court's docket.1 Appellant's current attorney filed a Notice of Appearance on September 8, 1994. He subsequently sought and received leave to file amended motions to correct defects in the motions appellant had filed while acting pro se. However, although appellant's attorney submitted revised motions as exhibits to his motion for leave to file amended motions, he failed to actually file the amended motions after the court granted him leave to do so. The Magistrate thereafter conducted hearings and, on March 20, 1996, issued a decision which included the following: This matter came on for hearing on April 24, 1995, June 26, 1995, and February 20, 1996 before Gregory C. Fuss upon Defendant's Motion for Relief from Judgment #247951. 1 Due to the caption of appellant's motion filed July 21, 1994, the motion was assigned two separate numbers. However, the motion is actually only a motion for relief from judgment, and therefore, motion numbers 250876 and 250877 will be treated as one motion, number 250876/7, throughout this opinion. -4- After addressing appellant's arguments, the Magistrate concluded that appellant's request for relief from judgment lacked merit. Appellant sought several extensions of time within which to file his objections to the Magistrate's decision. The trial court granted a number of appellant's requests, ultimately extending his time to file objections until June 24, 1996, with no further ex- tensions. Appellant finally filed his objections on July 15, 1996. The court overruled appellant's objections, noting that they were filed out of rule, and adopted the Magistrate's decision on September 17, 1996. Thus motion #247951 was denied.2 On December 23, 1996, appellant filed a motion in the lower court captioned Defendant's Motion for Decision on Defendant's Motions Numbered 250876 and 250877. The Magistrate conducted a hearing on January 15, 1997 and concluded that the motions were moot, the issue raised therein having been disposed of at a hearing before [the Magistrate] on 4/24/95, 6/26/95 and 2/20/96 resulting in an order of this Court dated 9/17/96 (Divorce Journal Volume 2868 Page 799). On June 26, 1997, the trial court over- ruled appellant's objections and adopted the decision of the Magistrate, thereby granting appellant's motion for a decision on motion 250876/7 and dismissing the motion as moot. Appellant timely appealed the June 26, 1997 order of the trial court. 2 Appellant filed an appeal of the trial court's September 17, 1996 ruling but later dismissed the appeal. -5- II. Appellant's sole assignment of error contends: IT WAS AN ABUSE OF DISCRETION BY THE TRIAL COURT AND CONTRARY TO THE COURTS (SIC) DOCKET TO DISMISS DEFENDANT'S MOTION TO VACATE JUDG- MENT #250786 AND FOR SUMMARY JUDGMENT #250877 AS MOOT. It is appellant's position that the trial court erred in dismissing motion #250876/7 as moot since the September 17, 1996 order addressed only motion #247951. Appellant argues that motion #247951 and motion #250876/7 each put forth a different meritorious defense or claim as to why relief under Rule 60(B) should be granted, each were filed on separate dates and each were given separate motion numbers. He maintains, therefore, that the trial court erred when it determined motion #250876/7 was moot since the Magistrate had addressed only one meritorious defense in his opinion. In order to successfully state a claim for relief from judgment, a movant is required to demonstrate: 1) the party has a meritorious claim or defense to present if relief is granted; 2) the party is entitled to relief under one of the grounds enumerated in Civ.R. 60(B)(1) through (5); and 3) the motion is made within a reasonable time and, where the grounds for relief are 60(B)(1), (2), or (3), not more than one year after the judgment, order or proceeding was entered. GTE Automatic Electric, Inc. v. ARC Indus- tries, Inc. (1976), 47 Ohio St.2d 146, 150-151; citing Universal Film Exchanges v. Lust (C.A. 4, 1973), 479 F.2d 573; Adomeit v. -6- Baltimore (1974), 39 Ohio App.2d 97; Brenner v. Shore (1973), 34 Ohio App.2d 209. Our review of the record indicates that the difference between the two motions is that in motion #247951, appellant contends he has a meritorious defense or claim to present regarding the court's order as to his children's medical expenses and visitation sche- dule while in motion #250876/7, appellant contends he has a meritorious defense or claim to present regarding the amount of child support he was ordered to pay; however, regarding the grounds upon which he alleges he is entitled to relief, appellant makes the identical argument in each motion. Appellant argues that he is entitled to relief pursuant to Civ.R. 60(B)(3) and (5) based on improper service, fraud and misrepresentation by plaintiff. In pertinent part, Civ.R. 60(B) provides: On motion and upon such terms as are just, the court may relieve a party or his legal repre- sentative from a final judgment, order or proceeding for the following reasons: * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresenta- tion or other misconduct of an adverse party; * * * (5) any other reason justifying relief from the judgment. Appellant argues that he was not given proper service of notice of the August 2, 1993 hearing and, therefore, was unable to defend himself against what he alleges were appellee's misrepresentations. -7- The Magistrate's decision that was adopted by the court determined that appellant had proper notice of trial and that his request for relief from judgment based upon an alleged lack of notice is without merit. Furthermore, the Magistrate noted that [a] motion for relief from judgment will not stand in place of an appeal not taken. Defendant's various claims that the Court abused its discretion in entering its order dated August 23, 1993 (DJ Vol 2223, page 0718) are claims that could have been raised on appeal. No appeal was taken from that order. The lower court therefore held that appellant failed to demonstrate that he was entitled to relief from judgment.3 Since appellant alleges he is entitled to relief from judgment based on identical grounds in both motions #247951 and #250876/7, the trial court's determination is applica- ble to both motions. The requirements stated in GTE Automatic are independent and in the conjunctive, not the disjunctive. GTE Automatic, supra at 151. The trial court determined that appellant failed to demon- strate grounds for relief from judgment; therefore, whether or not appellant has meritorious claims or defenses to present is irre- levant. Since appellant had already failed on one of the prongs required to state a successful Civ.R. 60(B) motion, it was un- necessary for the trial court to address each of appellant's alleged defenses or claims. The trial court did not abuse its dis- 3 Since appellant failed to appeal the trial court's ruling on his motion for relief from judgment, the lower court's denial of appellant's motion is not being reviewed. -8- cretion when it determined that its ruling had made appellant's remaining motion for relief from judgment moot. Finally, although the Magistrate's Decision purported to rule on motion #247951, it appears from the record that the court actually ruled on motion #250876/7;4 however, this confusion does not require that we reverse. The lower court's decision held that appellant did not demonstrate that he was entitled to relief under Civ.R. 60(B), and that decision is equally applicable to both motions. Furthermore, the record correctly reflects that motion #247951 was denied and that motions #250876 and 250877 were dismissed as moot. Appellant's assignment of error is overruled. Judgment affirmed. 4 The Magistrate noted that the matter was before him on motion #247951, but, after determining that appellant's request for relief had no merit, the Magistrate addressed the allegations of a meritorious claim or defense that appellant had raised in motion #250876/7. Additionally, the Magistrate pointed out that the motion was filed over ten months after the journalization of the order from which he [appellant] seeks relief and was, thus, untimely as well. This statement also applies to motion #250876/7, filed July 21, 1994, but not to motion #247951, filed June 3, 1994. -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 Cuyahoga County Court of Common Pleas, 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. PATRICIA A. BLACKMON, A.J. and ANN DYKE, J. CONCUR JUDGE KENNETH A. ROCCO 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 .