Brewer v. BrewerBrewer v. Brewer
Rendered on March 30, 2010
Christopher M. Cooper, and Paul E. Morrison, for appellant.
Ted Scott, for appellee.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations
CONNOR, J.
{¶1} Plaintiff-appellant, Earl T. Brewer (“appellant“), appeals from a judgment entry and decree of divorce entered by the Franklin County Court of Common Pleas, Division of Domestic Relations, in accordance with an agreed entry signed by the parties and approved by the trial court. For the following reasons, we affirm the judgment of the trial court.
{¶2} On April 26, 2005, appellant instituted this divorce action against defendant-appellee, Karen J. Brewer (“appellee“). The parties participated in settlement
{¶3} In the time leading up to the trial date, the parties continued to negotiate a settlement. Then, on February 14, 2008, the parties appeared before the trial court and signed an agreed entry stating the terms of the divorce and property distribution. The trial court approved the entry and reduced it to judgment.
{¶4} Despite the fact that appellant was represented by counsel, appellant was apparently unaware that the agreed judgment entry lacked any reference to an offset of appellant‘s pension with appellee‘s social security account. As a result, on June 23, 2008, appellant filed a
{¶5} On July 25, 2008, the trial court issued a decision setting the matter for a
{¶6} The trial court presided over the hearing on October 7, 2008. On January 12, 2009, the court issued its decision denying appellant
[I.] THE TRIAL COURT ERRED IN DEEMING APPELLANT‘S
CIV.R. 60(A) MOTION [AS] ACIV.R. 60(B) MOTION. THE [CIV.R.] 60(B) MOTION WAS NOT PROPERLY BEFORE THE TRIAL COURT.[II.] ALTHOUGH APPELLANT‘S [CIV.R.] 60(B) MOTION WAS NOT PROPERLY BEFORE THE TRIAL COURT, THE TRIAL COURT ERRED IN ITS DECISION AND ENTRY ON PLAINTIFF‘S [CIV.R.] 60(B) MOTION IN NOT APPLYING
R.C. 3105.171 AS REQUIRED IN THE DIVISION OF MARITAL ASSETS.[III.] THE TRIAL COURT ERRED IN NOT APPLYING A SOCIAL SECURITY OFFSET IN ITS DECISION AND ENTRY ON PLAINTIFF‘S [CIV.R.] 60(B) MOTION AS ALLOWED FOR AN EQUITABLE DIVISION OF MARITAL ASSETS IN THE NEVILLE CASE.
[IV.] THE TRIAL COURT ERRED IN ITS DECISION AND ENTRY ON PLAINTIFF‘S [CIV.R.] 60(B) MOTION IN NOT SETTING ASIDE THE AGREED ENTRY AS A CONTRACT THAT IS UNENFORCEABLE FOR EQUITABLE AND PUBLIC POLICY REASONS.
{¶7} Before analyzing the substantive assignments of error, we must first address appellee‘s motion to strike evidence not in the record, which was filed with this court on June 16, 2009. Appellant filed an untimely “contramotion” on July 13, 2009.1 Despite being untimely filed, we will consider the arguments presented in appellant‘s filing in the interest of justice.
{¶8} In appellee‘s motion, she argues that all exhibits and testimony not previously offered to the trial court should be stricken from the record on appeal. She specifically references exhibit Nos. 3, 4, 15, and 16 to appellant‘s brief. According to appellant, exhibit Nos. 3 and 4 were already a part of the appellate record because appellant had attached these as exhibits to his
{¶9} Under
The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.
However, this rule “cannot be used to add collateral, albeit possibly important and illuminating, documents to a record.” In re Conservatorship of Ahmed, 7th Dist. No. 01 BA 13, 2003-Ohio-3272, ¶53.
{¶10} Given that appellant‘s
{¶11} In his first assignment of error, appellant argues that the trial court erred by converting his
{¶13} Next, we consider the substance of appellant‘s argument. The differences between the functions of
Civ.R. 60(A) permits a trial court, in its discretion, to correct clerical mistakes that are apparent on the record, but does not authorize a trial court to make substantive changes in judgments. The term “clerical mistake” refers to a mistake or omission, mechanical in nature and apparent on the record that does not involve a legal decision or judgment.
(Internal citations omitted.) Atwater v. Delaine, 155 Ohio App.3d 93, 2003-Ohio-5501, ¶11. In Atwater, the Eighth Appellate District held that a change in the classification of an award of attorney fees and other equitable property to “spousal support” amounted to a substantive change, which is governed by
[T]he basic distinction between clerical mistakes that can be corrected under
Civ.R. 60(A) and substantive mistakes that cannot be corrected is that the former consists of “blunders in execution” whereas the latter consists of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because, on second thought, it has decided to exercise its discretion in a different manner.
Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-Ohio-4423, ¶10, quoting Kuehn v. Kuehn (1988), 55 Ohio App.3d 245, 247. In Wardeh, the
{¶15} Appellant cites the settlement memorandum, in which the parties apparently agreed to offset. Again, however, subsequent to this settlement memorandum, the parties approached the court to schedule a contested trial because the settlement had failed. As a result, we see no mechanical mistake apparent in the record. See Atwater.
{¶16} Further, in the agreed judgment entry, the parties agreed to the terms of the property distribution. Notably absent from that agreement was any specific mention of an offset of appellant‘s pension with appellee‘s social security account. Therefore, based upon the substance of the agreed judgment entry, the parties did not agree to such an offset. As a result, the addition of a provision regarding offset would undeniably amount to a substantive change. As a result, the trial court could have simply overruled appellant‘s
{¶17} For these reasons,
{¶18} In appellant‘s second and third assignments of error, he argues that the trial court erred by overruling his
{¶19} In accordance with well-settled case law:
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 grounds stated inCiv. R. 60(B)(1) through(5) ; and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv. R. 60(B)(1) ,(2) or(3) , not more than one year after the judgment, order or proceeding was entered or taken.
GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus. A trial court‘s decision on a
{¶20} Because the instant matter was resolved by an agreed judgment entry, we also note:
It is a common and favored practice in Ohio for parties in domestic relations actions to resolve the issues between them through negotiated settlement. Sundstrom v. Sundstrom, 11th Dist. No. 2005-A-0013, 2006-Ohio-486, at P22; Booth v. Booth, 11th Dist. No. 2002-P-0099, 2004-Ohio-524, at P6. “Where the parties reach such an agreement in the presence of the court, the agreement constitutes a binding contract and the trial court may properly sign a judgment entry reflecting the settlement agreement.” Booth, 2004-Ohio-524, at P6, citing Spercel v. Sterling Industries, Inc. (1972), 31 Ohio St.2d 36, 285 N.E.2d 324, paragraph two of the syllabus.
Dvorak v. Petronzio, 11th Dist. No. 2007-G-2752, 2007-Ohio-4957, ¶17.
{¶22} In appellant‘s fourth assignment of error, he challenges the agreed judgment entry on contract principles. Specifically, he argues that the agreed entry is ambiguous, its creation was defective, and it is unenforceable for public policy reasons. As a result, appellant argues that the trial court abused its discretion in denying his
{¶23} It is well-settled that an appellant cannot present new arguments for the first time on appeal. Havely v. Franklin Cty. Ohio, 10th Dist. No. 07AP-1077, 2008-Ohio-4889, fn 3, quoting State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 175, 177; see also Republic Steel Corp. v. Bd. of Revision of Cuyahoga Cty. (1963), 175 Ohio St. 179, syllabus; Miller v. Wikel Mfg. Co., Inc. (1989), 46 Ohio St.3d 76, 78. Indeed, appellate courts typically will not consider arguments that were never presented to the trial court whose judgment is sought to be reversed. See State ex rel.
{¶24} When relating these rules of appellate law to the arguments presented herein, it becomes clear that we need not consider many of the arguments presented in appellant‘s fourth assignment of error. Indeed, appellant presents many new arguments not previously raised before the trial court. Specifically, in the trial court proceedings, appellant never argued that the agreed judgment entry was ambiguous. He never raised any issue with the consideration underlying the contract. He failed to present any public policy arguments. Additionally, appellant failed to raise any equitable defenses, such as: illegality, fraud, and unilateral mistake. Because appellant failed to raise these arguments before the trial court, we find that he has waived these arguments on appeal. Indeed, we cannot find that the trial court abused its discretion in denying
{¶25} However, in his
{¶26} The Fourth Appellate District considered similar issues in Wine v. Wine, 4th Dist. No. 06CA6, 2006-Ohio-6995. In Wine, a husband and wife filed a pro se petition for
We also reject appellant‘s contention that no “meeting of the minds” occurred in their separation agreement. * * * [A]ppellant‘s signature appears on the dissolution petition and settlement agreement. This indicates her agreement to the terms.
Id. at ¶23. As a result, the Fourth Appellate District affirmed the trial court‘s decision to deny
{¶27} We find the analysis in Wine to be directive. Indeed, a fundamental principle of contract law is that a signatory to a contract is presumed to have read and understood the terms of the contract and assented to be bound thereby. Preferred Capital, Inc. v. Power Eng. Group, Inc., 112 Ohio St. 3d 429, 2007-Ohio-257, ¶10, citing Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 14; DeCamp v. Hamma (1876), 29 Ohio St. 467, 471-72. It is undisputed that appellant did, in fact, sign the agreed judgment entry. Furthermore, at the time he signed, appellant was represented by counsel. In spite of all of this, appellant now argues there was no meeting of the minds, such that the contract is defective and the judgment should be vacated.
{¶29} Because the agreed judgment entry lacked an agreement to offset, appellant should have been aware of this based upon the terms of the agreement, or lack thereof. If there was no meeting of the minds as appellant suggests, it was attributable to appellant‘s counsel‘s failure to recognize the omission and/or explain as much to his client. For purposes of
{¶30} As a result, we find that the trial court did not err in rejecting appellant‘s meeting of the minds argument. Accordingly, we find that the trial court did not abuse its discretion in denying
Judgment affirmed.
TYACK, P.J. and McGRATH, J., concur.