804 N.E.2d 80 | Ohio Ct. App. | 2004
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *28
{¶ 3} On May 30, 2001, Mother presented a shared parenting plan to Father and on November 28, 2001, Mother filed a motion to continue the trial date and a motion to appoint a custody investigator, wherein she requested that the trial court appoint an independent custody evaluator to investigate the matter and make recommendations to the trial court as to what type of custodial plan would be in the best interest of the minor children. The trial court denied the motion to appoint a custody investigator, but it granted the motion to continue the trial date.
{¶ 4} On December 6, 2001, Father filed a motion for shared parenting, with an attached shared parenting plan, and Mother filed the same motion, with attached plan, on February 12, 2002. Father filed a motion to modify temporary orders on March 21, 2002. Father requested the trial court to modify the prior orders regarding payment of child support, in the amount of $900 per month, plus 2% processing fee, and spousal support, in the amount of $500 per month, plus 2% processing fee.
{¶ 5} On May 23, 2002, the parties entered into two agreements: a settlement agreement which disposed of all the marital property; and a shared parenting plan which addressed the allocation of parental rights. As a result of the agreements, an uncontested divorce was scheduled for June 4, 2002. On the day of trial, Mother repudiated the agreements. Later, on June 6, 2002, Father filed a supplemental motion for shared parenting and an emergency motion to modify temporary support. Attached to the supplemental motion for shared parenting *30 was an affidavit in which Father swore that "after extensive negotiation with counsel, [Father] and [Mother], executed a Shared Parenting Plan which is in the best interest of the parties' minor children." Father further requested the trial court to adopt the terms of the shared parenting plan as its parenting order. The magistrate construed Father's emergency motion to modify support as a request that the magistrate adopt and enforce the shared parenting plan that was previously executed by the parties. The magistrate denied the emergency motion to modify support.
{¶ 6} Father filed a motion to enforce the settlement agreement and shared parenting plan upon which both parties had previously agreed. The trial court ruled on Father's motion on August 23, 2002. The trial court found that the parties attempted to enter into a settlement agreement and shared parenting plan on May 7, 2003, but Mother declined to sign the proposed agreements because "on that date based upon her desire, as she had expressed to the other participants at the meeting, that the settlement be all inclusive, indicating that before she would sign the shared parenting plan she wanted a global settlement of all issues, including financial basis." The trial court further found that on May 23, 2002, the parties met for a second time and that at the conclusion of that meeting the parties and their respective counsel signed both agreements and that "at the conclusion of the meeting, [the parties] contacted the Court and secured a hearing on the Court's `Uncontested Docket[,]' based upon the belief that the case had been settled by the parties." Further, "[o]n June 4, 2002, [Mother] formally rescinded the May 23, 2002 Agreement[s]. * * * Within the formal rescission, [Mother] alleged that she had entered into the agreement under duress. She did not articulate in this document the nature of the duress. She acknowledged that the agreement existed. She provided further that `it [the agreement] stands as a consequence to legal advice and a series of legal events have occurred over time.'" (Alterations sic.)
{¶ 7} Based upon the evidence before the trial court, it further found that "the testimony of [Mother] lack[ed] credibility, and that the balance of the evidence support[ed] a finding that the written agreements were signed by her with her knowledge and assent to the terms of each agreement, and without duress or undue influence being exerted upon her." The trial court concluded that the executed documents were valid contracts and that Mother's signature was not procured through fraud or duress. Thus the settlement agreement and shared parenting plan entered into by Mother and Father on May 23, 2002 "constitute[d] binding contracts dividing their property, allocating parental rights and responsibilities concerning the minor children, and addressing support obligations." Father's motion to enforce the settlement agreement and shared parenting plan was granted. *31
{¶ 8} Mother filed a pro se motion to vacate the trial court's August 23, 2002 order granting Father's motion to enforce the settlement agreement and shared parenting agreement. Mother argued that the agreements were, among other things, not in the best interest of the children and that "[i]mplementing the proposed agreement[s] would have drastic implications on [Mother's] ability to maintain household stability." The trial court denied Mother's motion.
{¶ 9} On October 17, 2002, Father filed a motion for attorney fees, wherein he requested the trial court to order Mother to reimburse him for the attorney fees and costs incurred in defense of her post-trial motions. In a judgment entry dated October 23, 2002, the trial court stated that "[i]n order to afford [Mother] an opportunity to prepare for [Father's motion for attorney fees], the same shall be considered at a later date." The trial court further ordered "that [Father's] Motion for Attorney's Fees be set by [Father] for hearing and that [Father] provide notice to [Mother] of the hearing." Father never scheduled a hearing as ordered by the trial court, thus Father abandoned the issue of attorney fees.
{¶ 10} On October 23, 2002, the trial court granted a divorce to Father and Mother and incorporated the terms of the settlement agreement and shared parenting plan into the order. Both parties were designated the residential parent and the legal custodian of the minor children. The trial court further ordered Father to pay: 1) Mother child support in the amount of $900 per month, plus 2% processing fee; 2) spousal support in the amount of $500 per month, plus 2% processing fee until September 23, 2003; and 3) the first $100 per child per year for any unreimbursed or uncovered reasonable medical, dental, orthodontic, optical, drug, and psychological expenses.
{¶ 11} Mother filed a motion for findings of facts and conclusions of law. The motion was denied.
{¶ 12} On November 22, 2002, Mother filed a notice of appeal, wherein she appealed the trial court's October 23, 2002 decision.1 After filing said notice, Mother filed several pro se post-decree motions: 1) a motion to vacate the final order of the trial court's October 23, 2002 decision; 2) a motion to stay the trial court's August 23, 2002 decision which granted Father's motion to enforce the shared parenting agreement; 3) a motion for the concerns of the children to be heard, wherein Mother requested the trial conduct a "private conversation" with the children; 4) a motion to compel discovery and attorneys fees; and 5) a "motion for evidentiary hearing and oral hearing on [Mother's Civ.R. 60(B)] motion[,]" wherein Mother requested a hearing on her November 22, 2002 motion to vacate. *32
{¶ 13} Mother filed a motion to stay the appellate proceedings with this Court and requested that this Court remand the matter back to the trial court in order that the trial court could rule on her Civ.R. 60(B) motion. This Court granted Mother's motion and remanded the matter to the trial court. Upon remand, the trial court denied Mother's Civ.R. 60(B) motion; motion to compel discovery and attorneys fees; motion for the concerns of the children to be heard; motion for evidentiary hearing and oral hearing on her Civ.R. 60(B) motion; and motion for stay of the trial court's August 23, 2002 decision. The matter is now before this Court.
{¶ 14} Mother has asserted nine assignments of error; some of which we have rearranged and consolidated to facilitate review.
{¶ 15} In Mother's first, second, third, fourth, fifth, sixth, and seventh assignments of error, she has essentially argued that the trial court abused its discretion when it concluded that the settlement agreement and shared parenting plan constituted valid, enforceable contracts to which all parties were bound. Specifically, Mother has argued that because the agreements weren't valid and enforceable, the trial court erred in granting Father's motion to enforce. This Court disagrees.
{¶ 16} Absent fraud, duress, overreaching or undue influence, a settlement agreement entered into by parties in a divorce is enforceable. Diguilio v. Diguilio, 8th Dist. No. 81860, 2003-Ohio-2197, at ¶ 33. This Court has also previously held that a settlement agreement is a contract between two parties and therefore its validity is governed by the general rules of governing contracts. Emerine v. Emerine (October 25, 1989), 9th Dist. No. 89CA004571, at 2; see, also, Zamonski v. Yanjun Wan,
2nd Dist. No. 19392, 2003-Ohio-780, at ¶ 6 (holding that "[a] separation agreement is a contract, and theories of contract law govern its validity."); Ellyson v. Ellyson (June 11, 1993), 7th Dist. No. 92 C 32, 1993 Ohio App. LEXIS 2968, at *4. Therefore, as in any other contract, a settlement agreement is enforceable only if the parties intend to contract on its essential terms, including its subject matter, and intend to be bound by its terms. Id. Settlement agreements "may be either written or oral, and may be entered into prior to or at the time of a divorce hearing. Where the agreement is made out of the presence of the court, the court may properly sign a journal entry reflecting the settlement agreement in the absence of any factual dispute concerning the agreement." (Citations omitted.) Muckleroy v.Muckleroy (Sept. 5, 1990), 9th Dist. No. 14443, at 3-4. Furthermore, "when the parties agree to a settlement offer, [the] agreement cannot be repudiated by either party, and the court has the authority to sign a journal entry reflecting the agreement and to enforce the settlement." (Alterations sic.) Shetler v.Shetler (May 23, 2001), 9th Dist. No. 00CA0070, at 3-4, quotingKlever v. Stow (1983),
{¶ 17} The facts in Ellyson are similar to the facts of the instant case. The wife in Ellyson filed a complaint for divorce against the husband The main issue in the divorce was the allocation of parental rights and responsibilities of the parties' minor child. During a pre-trial hearing, the parties' attorney's read a separation agreement into the record which the parties asked the court to adopt *34 as part of its judgment entry and divorce decree. The court determined that such an agreement was fair and equitable. The wife's attorney then prepared a judgment entry, signed it and forwarded it to the husband's attorney and said entry was signed by husband's counsel. The trial court approved the judgment entry and the entry was later filed.
{¶ 18} After the judgment entry was filed, the wife retained new counsel; wife's new attorney filed a motion for pre-trial hearing indicating that the parties had not reached an agreement regarding allocation of parental rights. Before another pre-trial hearing was held, the trial court journalized the judgment entry that was previously signed by both parties and which embodied the terms of the oral separation agreement. The wife filed a motion for relief from judgment pursuant to Civ.R. 60(B), and the motion was overruled. On appeal, the wife argued that before the agreement was journalized she changed her mind and repudiated it. She further argued, as does Mother in the instant matter, that the separation agreement was contractual and executory until journalization. Relying on Spercel v. Sterling Industries
(1972),
{¶ 19} Here, the record is devoid of any evidence that Mother's signature on the settlement agreement was procured through fraud, undue influence, duress, or coercion. The trial court specifically found that Mother signed the settlement agreement, with her attorney at her side; and that she acknowledged that an agreement existed. The record indicates that Mother voluntarily signed the agreement, without any hint of duress or undue influence, and that she simply changed her mind. A change of heart or poor legal advice is not grounds to set aside a shared parenting agreement. See Zamonski,
2003-Ohio-780, at ¶ 6, citing Walther v. Walther (1995),
{¶ 20} With respect to the shared parenting plan, this Court notes that a trial court's judgment "in custody matters enjoys a presumption of correctness." Butlerv. Butler (1995),
{¶ 21} Although this Court has previously held that a shared parenting plan is a contract once it is adopted by the trial court, see Harbottle v. Harbottle, 9th Dist. No. 20897, 2002-Ohio-4859, at ¶ 43, this Court does not need to apply contract law in order to determine whether the trial court abused its discretion when it accepted the shared parenting plan presented by Father. Pursuant to R.C.
{¶ 22} In determining whether shared parenting is in the best interest of the children, R.C.
{¶ 23} In sum, we find that the settlement agreement was a valid and enforceable contract, which was binding on both Mother and Father. We also find that the trial court did not abuse its discretion when it adopted the shared parenting plan. Consequently, the trial court did not err when it granted Father's motion to enforce the settlement agreement and the shared parenting plan. Mother's first, second, third, fourth, fifth, sixth, and seventh assignments of error are not well taken.
{¶ 24} In Mother's eighth and ninth assignments of error, she has argued that the trial court abused its discretion when it denied her November 22, 2002 Civ.R. 60(B) motion and motion for an evidentiary hearing. For the following reasons, this Court declines to address Mother's eighth and ninth assignments of error.
{¶ 25} In Mother's Civ.R. 60(B) motion, Mother relied on Civ.R. 60(B)(1), and in the alternative, Civ.R. 60(B)(3) and (B)(5), as grounds for relief. Thus, Mother presented the trial court with three reasons why the trial court should vacate its order adopting the shared parenting plan and settlement agreement: 1) mistake, inadvertence, surprise or excusable neglect; 2) fraud; and 3) any other reason *37
that would justify relief from judgment. Mother's Civ.R. 60(B) motion essentially presented the same arguments Mother raised in her first seven assignments of error. This Court has previously held that the availability of Civ.R. 60(B) relief is generally limited to issues that cannot properly be raised on appeal. Yakubik v.Yakubik (Mar. 29, 2000), 9th Dist. No. 19587, at 4. Furthermore, Civ.R. 60(B) provides a means for collateral relief from a final judgment when "the interests of justice demand the setting aside of a judgment normally accorded finality." Id., quoting RoseChevrolet Inc. v. Adams (1988),
{¶ 26} Although this Court specifically permitted Mother to supplement her appeal with the trial court's decision denying her Civ.R. 60(B) motion, this Court finds that it has properly addressed Mother's arguments regarding the trial court's decision to adopt the settlement agreement and shared parenting plan in her first seven assignments of error. Therefore, we decline to address any issues relating to the denial of her Civ.R. 60(B) motion.
Judgment affirmed.
Slaby, P.J. and Carr, J., concur.
