[Cite as Vakilian v. Malek, 2014-Ohio-3098.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

MARYAM VAKILIAN : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : 

MOJI MALEK : Case No. 14 CAE 01 0008 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

 Pleas, Case No. 12 CV H 06 0626 

JUDGMENT: Affirmed/Reversed in Part 

DATE OF JUDGMENT: July 14, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

DAVID WATKINS RONALD L. SOLOVE 

14 East Rich Street KERRY L. McCORMICK 

3rd Floor K. KELLY KREMER 

Columbus, OH 43215 79 Thurman Avenue 

 Columbus, OH 43206 
Delaware County, Case No. 14 CAE 01 0008 2 

Farmer, J. 

{¶1} In 2011, appellant, Moji Malek, and appellee, Maryam Vakilian, were 

divorced in Costa Rica. Pursuant to a settlement agreement between the parties, they 

divided their property and appellant was to pay appellee various amounts for 

investment shares and spousal support. Appellant did not make the required 

payments. 

{¶2} On June 1, 2012, appellee filed a verified complaint against appellant, 

claiming breach of contract, conversion, promissory estoppel, unjust enrichment, and 

contempt. On November 9, 2012, appellee filed a motion for default judgment based 

on appellant's failure to plead or otherwise defend. By judgment entry filed March 21, 

2013, the trial court granted the motion, ordered appellant to pay appellee a total of 

$235,423.00, and found appellant in contempt and ordered him to pay a $250.00 fine 

and serve thirty days in jail. A nunc pro tunc judgment entry was filed on April 22, 2013 

to include personal identifiers. 

{¶3} On August 30, 2013, appellant filed a Civ.R. 60(B) motion for relief from 

judgment, claiming the trial court never had jurisdiction over him as he could not be 

served outside the United States and was never properly served with the verified 

complaint. By entry filed January 3, 2014, the trial court denied the motion, finding it 

had jurisdiction over appellant pursuant to the settlement agreement, he was properly 

served, and the motion was untimely made. 

{¶4} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 
Delaware County, Case No. 14 CAE 01 0008 3 

I 

{¶5} "THE TRIAL COURT ERRED IN ITS DETERMINATION THAT IT HAD 

PERSONAL JURISDICTION OVER DEFENDANT-APPELLANT." 

II 

{¶6} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS 

DETERMINATION THAT DEFENDANT-APPELLANT'S MOTION FOR RELIEF 

PURSUANT TO OHIO CIVIL RULE 60(B) WAS NOT FILED WITHIN A REASONABLE 

TIME." 

I, II 

{¶7} Appellant claims the trial court erred in denying his Civ.R. 60(B) motion for 

relief from judgment as the trial court lacked personal jurisdiction over him and his 

motion was timely filed. We agree in part. 

{¶8} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's 

sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987). In order to find an abuse 

of that discretion, we must determine the trial court's decision was unreasonable, 

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. 

Blakemore, 5 Ohio St.3d 217 (1983). In GTE Automatic Electric Inc. v. ARC Industries, 

Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus, the Supreme Court of 

Ohio held the following: 

To prevail on a motion brought under Civ.R. 60(B), the movant 

must demonstrate that: (1) the party has a meritorious defense or claim to 

present if relief is granted; (2) the party is entitled to relief under one of the 
Delaware County, Case No. 14 CAE 01 0008 4 

grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made 

within a reasonable time, and, where the grounds of relief are Civ.R. 

60(B)(1), (2) or (3), not more than one year after the judgment, order or 

proceeding was entered or taken. 

{¶9} On the issue of timeliness, the trial court found in its January 3, 2014 entry 

that although less than a year had passed from the filing of the nunc pro tunc judgment 

entry, appellant had disregarded its orders: 

The Plaintiff argues that the Defendant's Motion for Relief from 

Judgment was not made in a reasonable time, as required by Civ. R. 

60(B). The Court agrees. The Defendant was properly served with the 

complaint and all of the Plaintiff's motions. Despite having notice of the 

proceedings in this case, the Defendant waited until after judgment had 

been rendered against him and after he had been found in contempt of 

Court and ordered to jail to engage counsel to represent him. The 

Defendant has provided the Court with no reason for his failure to timely 

seek relief from judgment. "In the absence of any justification for the delay 

in filing a 60(B) motion, the motion to vacate should be denied." 

Household Realty Corp. v. Cipperley, 7th Dist. Mahoning Case No. 12 MA 

113, 2013-Ohio-4365, ¶8." The Court finds that the Defendant's Motion 

for Relief from Judgment was not made in a reasonable time. 
Delaware County, Case No. 14 CAE 01 0008 5 

{¶10} Although the general rule is that a Civ.R. 60(B) motion is timely if it is filed 

within one year of the judgment entered, the trial court noted there were no specific 

challenges to the service of process and notices of default and show cause on the 

issue of timeliness. In fact, a review of the docket, as well as the August 22, 2013 

affidavit of S. Abby Vakilian, appellee's attorney-in-fact, attests to service via Civ.R. 4.3 

and appellant's knowledge of the action: 

3. The Defendant in this case, Moji Malek, lives in a gated 

community in the country of Costa Rica, Central America, address: Casa 

#106, Parque Valle Del Sol, Santa Ana, Costa Rica, Central America. 

Persons residing in Costa Rica have informed me that since Moji Malek 

was personally served with the Summons and Complaint in this case, he 

does not allow persons that he does not know onto his property. 

{¶11} Despite any affidavit quality averments by appellant on the issue of 

service and specifically Civ.R. 4.3 service, appellant argues a void judgment i.e., one 

granted without personal jurisdiction, and therefore it should be vacated on its face. 

{¶12} We note the Civ.R. 60(B) motion does not cite to any specific reason as 

enumerated in the rule. However, a challenge to personal jurisdiction would fall under 

the catch-all provision of subsection (5), "any other reason justifying relief from the 

judgment." 

{¶13} The gravamen of appellant's claim is that service of process was incorrect, 

not that he was not served. In International Shoe Company v. Washington, 326 U.S. 
Delaware County, Case No. 14 CAE 01 0008 6 

310, 316 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940), the United 

States Supreme Court held "due process requires only that in order to subject a 

defendant to a judgment in personam, if he be not present within the territory of the 

forum, he have certain minimum contacts with it such that the maintenance of the suit 

does not offend 'traditional notions of fair play and substantial justice.' " The "minimum 

contacts" standard is memorialized in the Ohio Rules of Civil Procedure in Civ.R. 4.3 

which governs process: out-of-state service. Subsection (A) states the following: 

(A) When service permitted 

Service of process may be made outside of this state, as provided 

in this rule, in any action in this state, upon a person who, at the time of 

service of process, is a nonresident of this state or is a resident of this 

state who is absent from this state. "Person" includes an individual, an 

individual's executor, administrator, or other personal representative, or a 

corporation, partnership, association, or any other legal or commercial 

entity, who, acting directly or by an agent, has caused an event to occur 

out of which the claim that is the subject of the complaint arose, from the 

person's: 

(1) Transacting any business in this state; 

(2) Contracting to supply services or goods in this state; 

(3) Causing tortious injury by an act or omission in this state, 

including, but not limited to, actions arising out of the ownership, 

operation, or use of a motor vehicle or aircraft in this state; 
Delaware County, Case No. 14 CAE 01 0008 7 

(4) Causing tortious injury in this state by an act or omission outside 

this state if the person regularly does or solicits business, engages in any 

other persistent course of conduct, or derives substantial revenue from 

goods used or consumed or services rendered in this state; 

(5) Causing injury in this state to any person by breach of warranty 

expressly or impliedly made in the sale of goods outside this state when 

the person to be served might reasonably have expected the person who 

was injured to use, consume, or be affected by the goods in this state, 

provided that the person to be served also regularly does or solicits 

business, engages in any other persistent course of conduct, or derives 

substantial revenue from goods used or consumed or services rendered in 

this state; 

(6) Having an interest in, using, or possessing real property in this 

state; 

(7) Contracting to insure any person, property, or risk located within 

this state at the time of contracting; 

(8) Living in the marital relationship within this state notwithstanding 

subsequent departure from this state, as to all obligations arising for 

spousal support, custody, child support, or property settlement, if the other 

party to the marital relationship continues to reside in this state; 

(9) Causing tortious injury in this state to any person by an act 

outside this state committed with the purpose of injuring persons, when 
Delaware County, Case No. 14 CAE 01 0008 8 

the person to be served might reasonably have expected that some 

person would be injured by the act in this state; 

(10) Causing tortious injury to any person by a criminal act, any 

element of which takes place in this state, that the person to be served 

commits or in the commission of which the person to be served is guilty of 

complicity. 

{¶14} Appellant argues Civ.R. 4.3(A)(8) is inapplicable sub judice because 

admittedly, appellee did not continue to reside in Ohio. Appellee does not concede this 

point, but argues the "Settlement Agreement" signed by the parties on March 8, 2011, 

attached to the January 1, 2012 verified complaint as Exhibit A, waives any 

jurisdictional issues: 

11. Before signing this agreement, each of us had the opportunity 

to consult with an attorney. Because of the international residency and 

citizenship issues, we understand that it is very important that we each 

have counsel review and approve this agreement. Whether or not we 

have secured counsel in Costa Rica, Michigan, or Iran, or in none of those 

places, we are each now signing this agreement freely and voluntarily, 

understanding that it will be binding on us in any jurisdiction in which [it] is 

submitted for court or other tribunal consideration. 

40. Enforcement. The obligations of Moji and Maryam under this 

agreement are joint and several. Both Moji and Maryam have the right to 
Delaware County, Case No. 14 CAE 01 0008 9 

enforce all obligations under this agreement before a court of competent 

jurisdiction. 

{¶15} The January 1, 2012 verified complaint prayed for unpaid spousal support 

and property settlement, the return of personal property or in the alternative payment 

therefor, contempt against appellant, and attorney fees and costs. By judgment entry 

filed March 21, 2013 granting the default judgment, the trial court ordered appellant to 

pay appellee a total of $235,423.00, and found appellant in contempt and ordered him 

to pay a $250.00 fine and serve thirty days in jail. A nunc pro tunc judgment entry was 

filed on April 22, 2013 to include personal identifiers. 

{¶16} The settlement agreement, although a memorialization of a divorce, is like 

any other contract entered into between the parties. Although the language may be 

unartfully drawn, the meaning remains the same. The parties acknowledged 

jurisdictional issues, and waived them in consideration of the settlement and divorce. 

However, the criminal jurisdiction initiated by the verified complaint was not within the 

trial court's jurisdictional scope. Nowhere in the verified complaint are claims of any 

specific criminal acts occurring in Ohio. 

{¶17} Upon review, we find the trial court did not err on the jurisdictional issue of 

enforcing the settlement agreement and had civil contempt power, but the trial court 

lacked jurisdiction on the criminal contempt, as such enforcement was not 

contemplated by the waiver of jurisdiction. 
Delaware County, Case No. 14 CAE 01 0008 10 

{¶18} Assignments of Error I and II are granted in part and denied in part. The 

trial court's decision on the Civ.R. 60(B) motion is affirmed but for the decision denying 

relief from the criminal contempt and accompanying fine and jail sentence. 

{¶19} The judgment of the Court of Common Pleas of Delaware County, Ohio is 

hereby affirmed in part and reversed in part. 

By Farmer, J. 

Gwin, P.J. and 

Delaney, J. concur. 

 

 

 

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