J.B. v. E.B. ( 2022 )

[Cite as J.B. v. E.B., 2022-Ohio-3229.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
J.B., :
Plaintiff-Appellant, :
No. 111018
v. :
E.B., :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 15, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-20-380851
Appearances:
Joseph F. Salzgeber, for appellant.
Mills, Mills, Fiely & Lucas, LLC, Laura L. Mills, and Pierce
C. Walker, for appellee.
MARY J. BOYLE, J.:
Plaintiff-appellant, J.B. (“J.B.” or “Wife”), appeals the trial court’s
judgment entry issuing a divorce between J.B. and defendant-appellee, E.B. (“E.B.”
or “Husband”). At issue is the parties’ settlement agreement and shared parenting
plan. For the reasons set forth below, we affirm the trial court’s judgment.
I. Facts and Procedural History
J.B. and E.B. were married in November 1998 and had three children
born as issue of the marriage (E.S.B. d.o.b. 7/30/01, S.B. d.o.b. 7/17/03, and Y.B.
d.o.b. 9/7/05). In March 2020, J.B. filed for divorce from E.B. E.B. answered and
filed a counterclaim for divorce. The matter proceeded to a final hearing in
September 2021. Both E.B. and J.B. were present with their respective attorneys.
The children’s guardian ad litem (“GAL”) was also present at the hearing. The
parties negotiated a settlement agreement and shared parenting plan
(“Agreement”). E.B.’s counsel read the terms of the Agreement into the record. The
relevant portions are as follows:
[COURT]: It is my understanding that a settlement has been reached
in this matter?
[HUSBAND’S ATTORNEY]: Yes, Your Honor.
[WIFE’S ATTORNEY]: Yes.
[COURT]: Would you like to read an agreement into the record and
question your clients, please?
***
[WIFE’S ATTORNEY]: Have you entered into an agreement with the
advice of counsel to completely separate the assets of the marriage —
assets and liabilities of the marriage as well as the parenting issues?
[WIFE]: Yes, you explained an agreement to me in the hallway.
[WIFE’S ATTORNEY]: Now, is that the agreement that was just read
into the record?
[WIFE]: Without seeing it on paper, to the best of what I could hear.
[WIFE’S ATTORNEY]: So yes. Do you wish this Court to grant you a
divorce today?
[WIFE]: Very much so.
[WIFE’S ATTORNEY]: And is there a former name that you wish to be
restored to?
[WIFE]: I may take my family name.
[WIFE’S ATTORNEY]: What is that name?
[WIFE]: I may take the name — I haven’t decided.1
***
[WIFE]: I want also added on there that I have 30 days to choose for
my name to be changed.
***
[HUSBAND’S ATTORNEY]: I just have a couple questions.
***
[HUSBAND’S ATTORNEY]: [J.B.], are you on any type of medication
* * * that would influence you entering into this agreement?
[WIFE]: I am not on any medication ever.
[HUSBAND’S ATTORNEY]: And you obviously heard me read
everything into the record, correct?
[WIFE]: I heard most of it, but without seeing it, I want to see it on
paper.
[HUSBAND’S ATTORNEY]: Okay. Well today we’re creating a
transcript of our agreement which will be enforced should you want to
change anything. So this is the point in time that if you did not hear
anything and you would like me to reread it into the record I am happy
to do so. But we are not leaving here with any ambiguity, so is there a
topic of discussion that you did not hear?
1 Wife further testified that she was deciding between two surnames.
[WIFE]: I want to make sure that Simoni Realty and Schumacher
Properties will not have anything to do with the home.
[HUSBAND’S ATTORNEY]: Schumacher doesn’t have a realty
company.
[WIFE]: You know what I’m saying, Schumacher contractors.
[HUSBAND’S ATTORNEY]: There will not be a Schumacher
employee.
[WIFE]: Or Simoni Realty.
***
[HUSBAND’S ATTORNEY]: And you understand you’ve entered into
a shared parenting agreement, correct?
[WIFE]: I haven’t seen the shared parenting agreement, but it’s my
understanding from the attorney.
[HUSBAND’S ATTORNEY]: Okay.
***
[HUSBAND’S ATTORNEY]: If I could question my own client now,
Your Honor.
[COURT]: Yes, please.
***
[HUSBAND’S ATTORNEY]: [E.B.] you heard us go through the
agreement today, do you believe that the agreement that was read into
the record is fair?
[HUSBAND]: Yes.
[HUSBAND’S ATTORNEY]: And equitable?
[HUSBAND]: Yes, I do.
[HUSBAND’S ATTORNEY]: Were you under any type of duress in
entering into that agreement?
[HUSBAND]: I was not.
[HUSBAND’S ATTORNEY]: And you’ve also heard for your children,
at least that’ s under the jurisdiction of this court, both [S.B.] and [Y.B.],
there will be a Shared Parenting Plan?
[HUSBAND]: Yes, I have.
***
[HUSBAND’S ATTORNEY]: Are you asking this agreement that was
read into the record to be adopted, finalized into a Judgment Entry and
presented to this Court to be your final decree?
[HUSBAND]: Yes, I do.
***
[GAL]: Can I question [Wife]?
[COURT]: Go ahead.
***
[GAL]: [Y]ou owe one half of my fees which is approximately $27,300?
[WIFE]: I was not explained to that, but I understand he has had more
of your time than I have had.
[GAL]: Yes or no, ma’am, do you understand you owe 50 percent of
that?
[WIFE]: Yes.
***
[COURT]: [Husband and Wife], you understand this is a final
agreement, you cannot wake up tomorrow and have buyer’s remorse.
Do you understand? Answer audibly.
[HUSBAND]: Yes.
[WIFE]: Yes.
[COURT]: Do you believe you were adequately represented by counsel
in th[ese] proceedings?
[HUSBAND]: Yes.
[WIFE]: By this counsel, yes.
[COURT]: Once again, it is greatly appreciated by this Court that you
settled this matter. And by the powers vested in me by the State of Ohio
I hereby grant your divorce.
(Sept. 23, 2021, tr. 2, 10-15, 18-23.)
Thereafter, on October 18, 2021, the trial court approved a judgment
entry adopting the Agreement and granting the parties a divorce (“Judgment
Entry”). The Judgment Entry incorporated the terms that were read into the record
at the September 23, 2021 hearing. J.B. did not sign the Agreement that was
included with the Judgment Entry.
It is from this order that J.B. appeals, raising the following single
assignment of error for review.
Assignment of Error One: The trial court abused its discretion by
adopting the settlement agreement and shared parenting plan without
conducting a hearing to adjudicate disputes, where (1) there was fraud,
duress, overreaching, undue influence and/or factual disputes over the
existence of terms in those agreements; (2) [Wife] had not read those
documents; and (3) [Wife] did not sign or initial those documents prior
to their submission to the trial court.
II. Law and Analysis
A. Standard of Review
An appellate court reviews domestic relations cases for an abuse of
discretion.
The Ohio Supreme Court has long recognized that a trial court must
have discretion to do what is equitable upon the facts and
circumstances of each divorce case. Booth v. Booth, 44 Ohio St.3d 142,
144, 541 N.E.2d 1028 (1989). Thus, when reviewing a trial court’s
determination in a domestic relations case, an appellate court generally
applies an abuse of discretion standard. Holcomb v. Holcomb, 44 Ohio
St.3d 128, 130, 541 N.E.2d 597 (1989). An abuse of discretion [* * *]
“implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
Feldman v. Feldman, 8th Dist. Cuyahoga No. 92015, 2009-Ohio-4202, ¶ 11.
With regard to in-court settlement agreements, this court has stated:
“An in-court agreement of the parties concerning division of property
and alimony adopted by the court as its judgment thereon is
enforceable by the court and may be incorporated into the judgment
entry even in the absence of an agreement in writing, or an approval of
the judgment entry signed by a party or his attorney.”
Kelley v. Kelley, 76 Ohio App.3d 505, 509, 602 N.E.2d 400 (8th Dist.1991), quoting
Holland v. Holland, 25 Ohio App.2d 98, 266 N.E.2d 580 (10th Dist.1970),
paragraph two of the syllabus.
J.B. argues the trial court abused its discretion when it adopted the
Agreement without conducting a hearing because (1) of factual disputes over the
Agreement terms; (2) she did not read the Agreement; and (3) she did not sign the
documents prior to their submission to the trial court. She contends that a court
may not force an agreement upon the parties and must conduct an evidentiary
hearing to adjudicate any disputes pertaining to the settlement agreement. See
Kilroy v. Kilroy, 11th Dist. Geauga No. 2002-G-2470, 2003-Ohio-5214, ¶ 13, citing
Rulli v. Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). While J.B. is correct
that a trial court may abuse its discretion by adopting a settlement agreement
without conducting a hearing to adjudicate disputes, the dispute must first be
brought to the attention of the trial court.
In the instant case, the distinction is that J.B. did not raise an
objection to the validity of the Agreement when it was read into the record at the
hearing. A review of the transcript reveals that she agreed with all the divorce terms
as set forth in open court. In fact, the record reveals that J.B. was given an
opportunity to propose any changes or have anything reread into the record to
clarify any ambiguity. (Sept. 23, 2021, tr. 13-14.) Her response at that time was that
she did not want E.B.’s employer (Schumacher Homes) involved with the sale of the
marital home. When asked by the trial court if Wife understood this was a final
agreement, Wife replied “yes.” (Sept. 23, 2021, tr. 23.) Additionally, after the
hearing, J.B. never brought any disputes to the trial court’s attention prior to court’s
adoption of the Agreement. Under these circumstances, the trial court was not
required to hold a hearing prior to adopting the Agreement as its judgment issuing
the parties a divorce, nor was there a need for any writing signed by J.B. to evidence
the terms and conditions of the Agreement. Kelley at 509, citing Holland.
J.B. also argues that the Agreement omitted the restoration to her
former name. A review of the hearing transcript demonstrates that J.B. testified that
she “may take [her] family name.” (Sept. 23, 2021, tr. 12.) She had not decided at
the time what name to take and wanted “30 days to choose for my name to be
changed.” (Sept. 23, 2021, tr. 12.) The Agreement adopted by the trial court does
not include any reference to J.B.’s name change. While the Agreement does not
contain the restoration of J.B.’s former name, J.B. did not make certain at the
hearing what former name she wanted or if she truly desired to change her name.
Furthermore, the record does not demonstrate that the parties agreed to the name
change, and J.B. did not bring this dispute to the trial court’s attention prior to the
court’s adoption of the Agreement. Therefore, the trial court did not abuse its
discretion by adopting the Agreement without reference to J.B.’s name change.
J.B. further contends that an agreement resolving all matters arising
out of the parties’ marital relationship was never reached due in large part to E.B.’s
failure to fully disclose all assets. She claims that she learned from bank records that
E.B. moved large amounts of money out of bank accounts just prior to her filing
divorce; E.B. maintained bank accounts in the name of his elderly mother; E.B. filed
the parties’ 2019 taxes and signed J.B.’s name without her knowledge, resulting in
her filing a tax fraud report with the IRS; E.B. received a large bonus that increased
his annual income; and E.B. refinanced the marital home by creating a second
mortgage for approximately $90,000 in his own name. J.B. also factually disputes
the $4,500 per month spousal support for 108 months award as not fair and
equitable and splitting the GAL fees of $27,300 because E.B. used the GAL’s services
far more often. J.B. alleges that “[p]rior to going on the record, [she] had been
advised by her legal counsel that the trial judge and GAL did not like her and, if
[she] did not agree on-the-record, then [she] would lose custody (even shared
parenting) of her youngest child, Y.B., and that the marital residence would be sold.”
(Emphasis sic.)
J.B.’s contentions are predicated on assertions that are not supported
by the record. We note that an appellate court may disregard an assignment of error
under App.R. 12(A)(2) “if the party raising it fails to identify in the record the error
on which the assignment of error is based or fails to argue the assignment separately
in the brief, as required under App.R. 16(A).” App.R. 16(A)(7) requires that an
appellant include in its brief “[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities, statutes, and
parts of the record on which appellant relies.” “The appellant bears the burden of
demonstrating error on appeal by reference to the record of the proceedings below.”
Davis v. Wesolowski, 2020-Ohio-677, 146 N.E.3d 633, ¶ 29 (8th Dist.), citing
Stancik v. Hersch, 8th Dist. Cuyahoga No. 97501, 2012-Ohio-1955.
Because J.B. failed to cite to the record in support of her arguments,
and the record reveals that she agreed to all the terms of the Agreement at the
hearing, we decline to review these arguments. “‘“An appellate court is not a
performing bear, required to dance to each and every tune played on an appeal.’””
Rodriguez v. Rodriguez, 8th Dist. Cuyahoga No. 91412, 2009-Ohio-3456, ¶ 7,
quoting State v. Watson, 126 Ohio App.3d 316, 710 N.E.2d 340 (12th Dist.1998),
quoting State v. McGuire, 12th Dist. Preble No. CA95-01-001, 1996 Ohio App.
LEXIS 1492 (Apr. 15, 1996).
Therefore, the sole assignment of error is overruled.
III. Conclusion
The trial court did not abuse its discretion by adopting the Agreement
because the parties agreed to the terms in open court. Additionally, the trial court
was not required to hold a hearing prior to adopting the Agreement as its judgment
issuing the parties a divorce.
Accordingly, judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
MARY J. BOYLE, JUDGE
LISA B. FORBES, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR