Deitz v. Deitz , 2012 Ohio 130 ( 2012 )

[Cite as Deitz v. Deitz, 2012-Ohio-130.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
PAUL DEITZ,
PLAINTIFF-APPELLANT, CASE NO. 14-11-06
v.
JULIE DEITZ, OPINION
DEFENDANT-APPELLEE.
Appeal from Union County Common Pleas Court
Domestic Relations Division
Trial Court No. 2010 DR 0010
Judgment Affirmed
Date of Decision: January 17, 2012
APPEARANCES:
Mark M. Feinstein for Appellant
Thomas M. Tyack for Appellee
Case No. 14-11-06
ROGERS, P.J.
{¶1} Plaintiff-Appellant, Paul Deitz (“Paul”), appeals the judgment of the
Court of Common Pleas of Union County overruling his objections to the
magistrate’s decision regarding a settlement agreement and allocation of parenting
time in his divorce action. Finding that the trial court did not err, we affirm the
decision of the trial court.
{¶2} Paul and Defendant-Appellee, Julie Deitz (“Julie”), were married in
2003 and one child was born as issue of the marriage. On January 13, 2010, Paul
filed for divorce, requesting inter alia, that he be named residential parent and
legal custodian of the parties’ minor child. Julie filed an answer and counterclaim
for divorce requesting inter alia, that she be designated the residential parent and
legal custodian of the minor child.
{¶3} A hearing was scheduled for December 10, 2010, in front of a
magistrate of the Union County Court of Common Pleas. The transcript from that
date shows that in lieu of a hearing, the parties stated on the record that they had
reached a complete agreement as to all issues. The terms were stated on the record
and accepted by the parties’ sworn testimony. The magistrate directed the
plaintiff’s attorney to draft the agreed judgment entry of divorce. No motion,
agreed judgment entry, or request for a hearing was filed.
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{¶4} On January 24, 2011, the magistrate filed his decision and
recommendations, in which he explained that the parties “reneged on their
commitment to submit an Agreed Judgment Entry-Decree of Divorce by bickering
over additional terms or conditions not stated on the record.” Docket No. 72. The
magistrate recommended inter alia, that a divorce be granted on the grounds of
incompatibility, that Julie be designated as primary residential parent and legal
custodian of the minor child, that the father have parenting time, that the minor
child continue to counsel and the father begin to counsel with Jenna Harris, that
the parties agree to follow any reasonable recommendation of Jenna Harris, and
that the father have his home inspected.
{¶5} On February 4, 2011, Paul filed objections to the magistrate’s
decision, which the trial court overruled on February 28, 2011. The entry of
decree of divorce was filed March 21, 2011. Paul timely filed his notice of appeal.
It is from this judgment Paul appeals, asserting the following as error for our
review.
Assignment of Error No. I
THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO HOLD AN EVIDENTIARY HEARING TO
DETERMINE THE EXISTENCE OF A SETTLEMENT
AGREEMENT OR ITS TERMS, AS TO THE APPELLANT’S
PARENTING TIME WITH HIS SON.
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Case No. 14-11-06
{¶6} In his sole assignment of error, Paul argues that the trial court abused
its discretion by failing to hold an evidentiary hearing regarding the disputed
settlement agreement. Paul explains that there was a dispute as to the meaning of
the terms of the settlement agreement and that there was a dispute that contested
the existence of the settlement agreement, and therefore, the trial court should
have held an evidentiary hearing pursuant to Rulli v. Fan Co., 79 Ohio St.3d 374,
683 N.E.2d 337 (1997).
{¶7} As to the dispute, Paul explains that in the settlement agreement the
parties had agreed that they would follow any reasonable recommendations of the
counselor, particularly with regard to her recommendations regarding the
allocation of parenting time. He then asserts this agreement was a mutual mistake
of fact as the child’s counselor subsequently advised him that she was “unwilling
to make any recommendations whatsoever as to parenting time, thereby relegating
him to the then-ordered parenting schedule of only a few hours three times
weekly.” Appellant’s brief p. 5. As to the dispute that negated the existence of a
settlement agreement, Paul explains that the Appellee made “interlineations” to
the draft settlement agreement that were not part of the agreement. Id.{¶8} Initially, we must note that the state of the record prevents us from
giving full consideration to Paul’s arguments. At issue are two exhibits Paul
attached as part of the appendix to his merit brief which allegedly demonstrate the
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purported mutual mistake of fact and failed settlement agreement. Exhibit B is a
copy of a facsimile sent by Appellant’s attorney to the magistrate and Appellee’s
counsel, reporting that the parties were unwilling to sign the draft agreed judgment
entry due to Julie’s interlineations and Paul’s concern that the counselor is now
unwilling to make recommendations regarding parenting time. Exhibit B also
includes a copy of this draft settlement agreement with interlineations. Exhibit C
is a copy of an e-mail sent by the magistrate to the parties’ attorneys in response to
the facsimile above. These documents were not made part of either the trial
court’s record or the appellate record. Evidence not made part of the record that is
attached to an appellate brief cannot be considered by a reviewing court. Shock v.
Motorist Ins. Co., 3d Dist. No. 16-04-08, 2004-Ohio-6049, ¶ 24, citing Grove v.
Grove, 3d Dist. No. 13-00-32, 2001-Ohio-2109, citing State v. Booher, 54 Ohio
App.3d 1, 15, 560 N.E.2d 786 (3d Dist. 1988), Lamar v. Marbury, 69 Ohio St.2d
274, 277, 431 N.E.2d 1028 (1982); App.R. 9(A).
{¶9} Accordingly, Paul’s arguments will be assessed to the extent that they
are supported by the record on appeal.
{¶10} The record reveals that at the December 10, 2010 hearing, the
settlement agreement was stated on the record, and both parties testified that what
was stated in court accurately represented the agreement, that the agreement
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Case No. 14-11-06
resolved all the issues in the case, and that they were requesting the court to adopt
the terms as its orders. Specifically, the parties agreed to the following:
The child is currently counseling with Jenna Harris who is an
individual with Children’s Hospital in Columbus. The parties
would also agree that the father would begin meeting with Jenna
Harris[, and] that the parties will both follow any reasonable
recommendations of modification to the existing parenting time,
any reasonable recommendations regarding anger management
courses or parenting time. Hearing Tr., p. 6.
{¶11} In its decision, the magistrate recommended the following with
respect to that issue:
c. The child shall continue to counsel with Jenna Harris, and the
Father will begin meeting with Jenna Harris. The Parties agree
they will follow any reasonable recommendation of Jenna Harris
including, but not limited to, recommendations as to the
modification of parenting time and/or any additional parenting
or anger management classes. (This provision does not require
Jenna Harris to make recommendations.) Docket No. 72.
{¶12} In his objections to the magistrate’s decision, Paul argued that the
magistrate committed error by including an additional term contrary to the parties’
intentions, not that the agreement was defective for mutual mistake or that the
interlineations demonstrated the failure to form a settlement agreement. Paul’s
contentions on appeal regarding mutual mistake and lack of settlement agreement
are not supported by the record. Rather, the record reveals that the magistrate’s
recommendation mirrored the parties’ agreement, with the clarification that the
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trial court cannot mandate that the counselor make recommendations.
Accordingly, we overrule Paul’s assignment of error.
{¶13} Having found no error prejudicial to the Appellant herein, in the
particular assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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