[Cite as McWilliams v. McWilliams, 2019-Ohio-2415.]


STATE OF OHIO                   )                          IN THE COURT OF APPEALS
                                )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

TERRY L. MCWILLIAMS                                        C.A. No.   29172

        Appellee

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
WALTER R. MCWILLIAMS                                       COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
        Appellant                                          CASE No.   DR-2017-05-1420

                               DECISION AND JOURNAL ENTRY

Dated: June 19, 2019



        CALLAHAN, Judge.

        {¶1}    Walter McWilliams (“Husband”) appeals from the judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, which denied his motion for

relief from the final Decree of Divorce. For the following reasons, this Court affirms.

                                                      I.

        {¶2}    The McWilliamses were married in 1985 and have four adult children. Terry

McWilliams (“Wife”) filed a complaint for divorce in May 2017. Wife served Husband via

certified mail with the complaint and other filings and orders, including an order scheduling an

uncontested divorce hearing on August 22, 2017. Husband appeared pro se and Wife appeared

with counsel at that hearing. In accordance with the local rule, the trial court converted the

uncontested divorce hearing to a pretrial. Following the pretrial, Husband, pro se, filed a waiver

of service of the complaint, but failed to file an answer.
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       {¶3}    A second pretrial was scheduled for November 8, 2017. The day before this

pretrial, Wife filed a motion to continue the pretrial asserting that 1) Husband had contacted

Wife’s attorney and indicated that he was unable to attend the pretrial due to his recent discharge

from the hospital, and 2) the parties were close to reaching an agreement. The motion was

granted and a new pretrial scheduled for March 7, 2018.

       {¶4}    In lieu of attending the pretrial on November 8, 2017, Wife drove Husband to her

attorney’s office where a separation agreement was executed by both of them. A week later,

Wife filed a motion to accelerate the final hearing date based upon the executed separation

agreement. The trial court granted Wife’s motion and scheduled an uncontested divorce hearing

on December 12, 2017. Husband did not appear at this hearing, while Wife and her counsel did.

The same day, the trial court granted Wife a divorce and approved and incorporated the terms of

the separation agreement into the final Decree of Divorce. The clerk of courts issued a Civ.R.

58(B) notice, along with a certified copy of the final Decree of Divorce, by regular mail to

Husband on December 12, 2017. No appeal was taken from the final Decree of Divorce.

       {¶5}    Three months later Husband, through counsel, filed a motion for relief from

judgment. The trial court held a hearing and orally denied Husband’s Civ.R. 60(B) motion. In

its subsequent written decision, the trial court determined that while the motion was timely,

Husband failed to establish that he was entitled to relief under one of the provisions of Civ.R.

60(B). Husband has timely appealed, assigning two assignments of error. To facilitate the

analysis, this Court will consolidate the assignments of error.
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                                                II.

                               ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT
       [HUSBAND’S] MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO
       CIV.R. 60(B).

                               ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT DENIED [HUSBAND] DUE PROCESS OF LAW BY
       FAILING TO PROVIDE HIM NOTICE OF THE UNCONTESTED DIVORCE
       HEARING AFTER HE ENTERED AN APPEARANCE IN THE CASE.

       {¶6}      Husband’s assignments of error are premised upon the trial court erring in

denying his motion for relief from judgment. Husband’s first assignment of error asserts that he

was unaware of the accelerated uncontested divorce hearing for various reasons and thus his

failure to attend the December 12, 2017 hearing was based upon excusable neglect and Wife’s

misrepresentations. In the second assignment of error, Husband contends that the December 12,

2017 uncontested divorce hearing was in actuality a default hearing and due process required

Wife to provide Husband with notice of the December 12, 2017 uncontested divorce hearing.

We do not reach the merits of either argument and instead affirm the trial court’s decision on

other grounds.

       {¶7}      The decision to grant or deny a Civ.R. 60(B) motion is reviewed for an abuse of

discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987). Accord Jackson v. Coker, 9th Dist.

Summit No. 27123, 2014-Ohio-5114, ¶ 8. “‘A trial court will be found to have abused its

discretion when its decision is contrary to law, unreasonable, not supported by evidence, or

grossly unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting

Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25.
                                               4


       {¶8}   In order to prevail on a Civ.R. 60(B) motion, the movant must establish that: (1)

the party has a meritorious defense or claim; (2) a circumstance arises under Civ.R. 60(B)(1) to

(5); and (3) the motion is made within a reasonable time, and when filing under Civ.R. 60(B)(1)

to (3), the motion is within one year of the judgment or order. GTE Automatic Elec., Inc. v. ARC

Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. If any of these three

requirements are not met, the motion must be denied. Rose Chevrolet, Inc. v. Adams, 36 Ohio

St.3d 17, 20 (1988).

       {¶9}   It is a well-established principle that “Civ.R. 60(B) may not be used as a

substitute for appeal.” Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128, 131 (1986).

Errors which could have been raised in a direct appeal cannot serve as the basis for a motion for

relief from judgment. Ward v. Hengle, 134 Ohio App.3d 347, 350 (9th Dist.1999), quoting Kelm

v. Kelm, 73 Ohio App.3d 395, 299 (10th Dist.1992). Instead, “‘Civ.R. 60(B) relief is generally

limited to issues that cannot be raised on appeal[,]’” such as errors that are not present in the

record. Naples v. Naples, 9th Dist. Lorain No. 08CA009420, 2009-Ohio-1427, ¶ 9, quoting

Haas v. Bauer, 156 Ohio App.3d 26, 2004-Ohio-437, ¶ 25 (9th Dist.) and citing Harmon v.

Harmon, 9th Dist. Summit No. 11575, 1984 WL 6193, *1 (May 30, 1984). When a trial court

denies a Civ.R. 60(B) motion on the merits and does not address the question of whether the

issue could have been raised on direct appeal, this Court may nonetheless affirm the judgment

because it is “‘legally correct on other grounds.’” Green v. Clair, 9th Dist. Summit No. 26918,

2014-Ohio-1605, ¶ 12, quoting Cook v. Family Invests. v. Billings, 9th Dist. Lorain Nos.

05CA008689, 05CA008691, 2006-Ohio-764, ¶ 19.

       {¶10} Relying upon Civ.R. 60(B)(1), (3), and (5) as the grounds supporting relief from

the final Decree of Divorce, the gravamen of Husband’s motion was that he did not receive
                                                 5


notice of the December 12, 2017 uncontested divorce hearing. Husband argued that his failure to

attend the December 12, 2017 uncontested divorce hearing was “excusable neglect” under Civ.R.

60(B)(1) due to the fact that he was unaware of the hearing date because he did not receive the

court order scheduling the hearing or a copy of Wife’s motion to accelerate the hearing date, and

because he had health problems. Husband also asserted that pursuant to Civ.R. 60(B)(3) Wife

misrepresented to the trial court his “acquiescence” to accelerating the hearing date in her

motion. Lastly, Husband relied upon Civ.R. 60(B)(5), the catch-all provision, to argue that the

uncontested divorce hearing was actually a default hearing and he was denied due process

because Wife failed to give him notice of the hearing.

       {¶11} Each of Husband’s arguments challenged the propriety of the trial court holding

the uncontested divorce hearing and the legal correctness of the trial court rendering the final

Decree of Divorce when Husband allegedly did not have notice of the hearing. Husband did not

need to rely upon evidence outside of the record to allege that he did not receive notice of the

uncontested divorce hearing, because the record contained the docket of filings including Wife’s

motion to accelerate the hearing, the trial court’s order scheduling the uncontested divorce

hearing, and the service docket of various filings.

       {¶12} The record reflects, and Husband does not dispute, that he received notice of and

the certified copy of the final Decree of Divorce in December 2017. The issues raised by

Husband in his motion for relief from judgment were obvious at that time. Husband could have

asserted his arguments regarding his lack of notice of the uncontested divorce hearing in a timely

direct appeal of the final Decree of Divorce. See King v. King, 55 Ohio App.2d 43, 43-45 (9th

Dist.1977) (Husband filed a direct appeal from a final divorce decree arguing that he did not

receive notice of the trial pursuant to Civ.R. 75(L).). See also Nystrom v. Nystrom, 9th Dist.
                                                 6


Medina No. 1431, 1986 WL 755, *1-2 (Jan. 8, 1986); Bandell v. Bandell, 9th Dist. Lorain No.

95CA006177, 1996 WL 199563, *1-2 (Apr. 24, 1996). Instead, Husband sought review of the

trial court’s judgment through a Civ.R. 60(B) motion, which does not allow for such relief. See

Doe, 28 Ohio St.3d at 131. Accordingly, the trial court did not err, albeit for a different reason,

in denying Husband’s Civ.R. 60(B) motion. See Green, 2014-Ohio-1605, at ¶ 12 (affirming the

denial of a Civ.R. 60(B) motion on alternative grounds).

       {¶13} Lastly, Husband argues for the first time on appeal that the Decree of Divorce was

entered based solely upon the testimony of Wife and without other credible evidence in

contradiction of Civ.R. 75(M). This Court, however, will not consider new arguments presented

for the first time on appeal. See Bank of New York Mellon Trust Co v. Bowers, 9th Dist. Lorain

No. 12CA010289, 2013-Ohio-5488, ¶ 9, 11.

       {¶14} Husband’s first and second assignments of error are overruled.

                                                III.

       {¶15} Husband’s first and second assignments of error are overruled. The judgment of

the Summit County Court of Common Pleas, Domestic Relations Division, is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                7


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    LYNNE S. CALLAHAN
                                                    FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

ROBERT ROE FOX, Attorney at Law, for Appellant.

JOY S. WAGNER, Attorney at Law, for Appellee.
