Kelley v. Kelley ( 1991 )

I respectfully dissent from the majority's disposition of appellant's first and second assignments of error. I would find that appellant was entitled to a hearing prior to the trial court's journalization of an in-court settlement agreement where the agreement was specifically made contingent upon the fulfillment of enumerated obligations prior to its final journalization. Thus, I would sustain the appellant's first and second assignments of error and reverse and remand for a hearing to determine the validity and terms of the in-court agreement.

In discussing the reduction of an in-court settlement to judgment this court has stated:

"Ordinarily, an in-court settlement binds the parties, even if they did not reduce it to writing. Spercel v. SterlingIndustries, Inc. (1972), 31 Ohio St.2d 36, 60 O.O.2d 20,285 N.E.2d 324, paragraph one of the syllabus; Rodgers v. Rodgers (May 7, 1987), Cuyahoga App. No. 52105, unreported. The trial court can properly enter a judgment which accurately reflects an agreement they made in open court and read into the record.Bolen v. Young (1982), 8 Ohio App.3d 36, 37, 8 OBR 39, 40,455 N.E.2d 1316, 1318.

"However, the court should not reduce an agreement to judgment without reliably determining its content. Thus, the court should hold an evidentiary hearing to resolve any dispute about the existence of an agreement or its terms. Morform ToolCorp. v. Keco Industries, Inc. (1971), 30 Ohio App.2d 207, 210, 59 O.O.2d 320, 321, 284 N.E.2d 191, 193; Arendt v. McDonald (Mar. 28, 1985), Cuyahoga App. No. 48956, unreported." Zigmont v.Toto (1988), 47 Ohio App.3d 181, 185, 547 N.E.2d 1208, 1212.

My review of the record and the in-court agreement, which provided that it would not be journalized until all of its terms had been met, persuades me that there exists a legitimate dispute as to whether a valid agreement exists. Thus, it is my reasoned opinion that the trial court should have conducted an evidentiary hearing to determine whether a valid settlement agreement had in fact been entered into by the parties.

Furthermore, I would find that the case of Lash v. Lash (Feb. 22, 1990), Cuyahoga App. Nos. 56155, 56837, 57816, unreported, 1990 WL 15329 is not applicable to the facts of the instant case. In Lash, unlike the instant case, the validity of the settlement agreement which was subsequently incorporated in the court's judgment entry was not seriously disputed.

Accordingly, I would sustain the appellant's first and second assignments of error and remand for further proceedings.