In re J.E. , 2017 Ohio 536 ( 2017 )

[Cite as In re J.E., 2017-Ohio-536.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 104473 and 105098
IN RE: J.E. P.-T.
A Minor Child
[Appeal By M.P., Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. CU13110545
BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: February 16, 2017
ATTORNEYS FOR APPELLANT
Alan N. Hirth
Anne C. Fantelli
Meyers, Roman, Friedberg & Lewis, L.P.A.
28601 Chagrin Blvd., Suite 500
Cleveland, Ohio 44122
ATTORNEY FOR APPELLEE
Denise Cook
Denise M. Cook Co., L.P.A.
8210 Macedonia Commons Blvd.
Suite #69-190
Macedonia, Ohio 44056
Also listed:
Guardian ad Litem
Gail A. Nanowsky
P.O. Box 26060
Fairview Park, Ohio 44126
SEAN C. GALLAGHER, J.:
{¶1} Mother appeals the trial court’s decision that adopted Mother and Father’s
agreed shared parenting plan, claiming she did not realize she was binding herself to the
agreement by initialing each of the 13 pages and then signing the document. For the
following reasons, we affirm based on the specific facts and circumstances of this case.
{¶2} There is no need for a lengthy discussion of the facts or procedural history.
It suffices that on April 8, 2016, the parties appeared for a trial before the trial court’s
appointed magistrate to resolve the shared-parenting issue. Rather than proceeding,
Mother and Father negotiated an agreement and memorialized that agreement through a
typed document completed with handwritten interlineations. The document was signed,
and each page was initialed by both parties. The magistrate adopted the agreement into
her decision.
{¶3} On April 12, the trial court adopted the agreed judgment entry in accordance
with Civ.R. 53(D)(4)(e), incorporating the agreement as an exhibit to the journal entry.
Unhappy with her attorney, Mother fired the attorney on April 14, hired new counsel, and
filed objections to the magistrate’s decision dated April 11, essentially claiming her
previous attorney did not explain the settlement process thoroughly enough for Mother’s
understanding. Mother also filed an appeal from the April 12 trial court order adopting
the agreed judgment entry. This court stayed the appeal under App.R. 4(B), and
remanded the case to the trial court to address the timely objections. In September 2016,
the trial court overruled the objections, finding that
Since August 15, 2013, the Mother has been represented by four different
attorneys: Martin Keenan, Steve Tater, Pamela Kurt, and now Alan Hirth.
Mediation failed on February 14, 2014. After numerous pretrial and
preliminary orders, the matter was set for trial on October 30, 2015.
Around that date, the Mother’s attorney withdrew and the trial was
continued. The next trial on February 16, 2016 was continued as well. The
[guardian ad litem] report of February 9, 2016 also lays out a contentious
history between the parents over the course of this case.
The grounds for the objection is essentially that Mother was not adequately
represented by her attorney. The Mother makes a number of assertions
about what her attorney did or did not do. The Mother’s unhappiness with
her attorney does not allow mother to get out of her agreement which she
initialed on every page and then signed while represented by counsel.
Mother filed another appeal, from the September 2016 order, and in accordance with
App.R. 4(B)(2), the two cases were consolidated.
{¶4} Mother claims there was no meeting of the minds for the settlement
agreement because, according to a self-serving affidavit, her former attorney provided
poor legal advice and as a result, the trial court must hold an evidentiary hearing to
resolve the factual dispute about the attorney’s recommendations. There is no merit to
Mother’s claim, and it is overruled. As the trial court noted, Mother is essentially
seeking to rescind an otherwise binding agreement. She is not citing any error with the
magistrate’s acceptance of the signed settlement agreement. Mother has not claimed any
error in law or with a finding of fact committed by the magistrate.
{¶5} Civ.R. 53(D)(3)(a)(i) provides that a magistrate must prepare a decision
respecting any matter referred to her, including any findings of fact or conclusions of law.
Any party wishing to object must timely file an objection to the factual findings or legal
conclusions. Civ.R. 53(D)(3)(b). In this case, Mother filed objections to the
magistrate’s decision, but not for any legal or factual mistake of the magistrate, but
instead based on her own purported mistake of signing a legally binding document.
Mother then claimed it was based on her attorney’s advice, a matter outside of the record
and outside the scope of the magistrate’s decision, which adopted the agreement and
incorporated the agreement into the decision.
{¶6} The proper procedure to effect a rescission of a binding settlement agreement
entered into in the presence of the court, such as the agreement at issue in this case, is for
that party to file a motion seeking to set the agreement aside. Cochenour v. Cochenour,
4th Dist. Ross No. 13CA3420, 2014-Ohio-3128, ¶ 29, quoting Spercel v. Sterling
Industries, Inc., 31 Ohio St. 2d 36, 285 N.E.2d 324 (1972), paragraph two of the syllabus
(in order to effect a rescission of an in-court settlement agreement, the party must do
more than object because the trial court merely has to journalize what transpired in a
ministerial fashion). In the absence of such a motion, the trial court may sign a journal
entry reflecting or adopting the settlement agreement. Id. Once the settlement
agreement was received by the magistrate, there was nothing further for the magistrate to
consider except whether the agreement was in the child’s best interest, which is not an
issue in this case. No objections were raised indicating that the shared-parenting
agreement was anything but in the child’s best interest.
{¶7} It appears the trial court considered Mother’s objections as a motion to
rescind her settlement agreement entered in front of the magistrate. The trial court
considered Mother’s arguments, but overruled the objection to the magistrate’s decision
because there was a written contract memorializing the terms of the settlement agreement
and one party cannot unilaterally rescind a written contract even if entered upon incorrect
legal advice. The trial court’s recitation of black-letter law is accurate.
{¶8} Where parties enter into a settlement agreement, especially a written one, the
agreement constitutes a binding contract and it cannot be unilaterally rescinded by one of
the parties after the fact. Hildebrand v. Hildebrand, 8th Dist. Cuyahoga No. 96436,
2011-Ohio-5845, ¶ 14, citing Mack v. Polson Rubber Co., 14 Ohio St. 3d 34, 36, 470
N.E.2d 902 (1984). “‘To permit a party to unilaterally repudiate a settlement agreement
would render the entire settlement proceedings a nullity, even though the agreement is of
binding force.’” Id., quoting Spercel. A settlement agreement can only be rescinded
upon claims such as fraud, duress, or undue influence. Id., citing Mack at syllabus.
Further, “[n]either a change of heart nor bad legal advice is a ground to set aside a
settlement agreement.” Richmond v. Evans, 8th Dist. Cuyahoga No. 101269,
2015-Ohio-870, ¶ 19, citing Walther v. Walther, 102 Ohio App. 3d 378, 383, 657 N.E.2d
332 (1st Dist.1995), and Grubic v. Grubic, 8th Dist. Cuyahoga No. 73793, 1999 Ohio
App. LEXIS 4200, 10 (Sept. 9, 1999).
{¶9} There are no allegations of fraud, duress, or undue influence. Taking
Mother’s allegations as true, which we do only for the sake of argument, Mother’s
attorney advised her to sign and initial each page of a nonfinal agreement for further
negotiation and that Mother could read the document after consummating the agreement.
At best, this was bad legal advice. No party should sign a document purporting to settle
all issues if the memorialized terms are not in conformance with the party’s wishes.
Mother cannot be relieved of the terms established under the written settlement agreement
unilaterally when her only claim is based on receiving bad advice. Richmond at ¶ 19.
There is no factual dispute about whether an agreement was reached; the signed
agreement demonstrates otherwise, and absent fraud, duress, or undue influence, Mother
cannot unilaterally rescind the agreement.
{¶10} Further, Mother’s only specific complaint about the settlement agreement
raised in her affidavit is that she “never agreed to the interlineation that Father’s
shared-parenting time that starts on May 28, 2016 would continue through any school
year but that it would be for summer only.” (Emphasis sic.) Mother claims that the
handwritten amendment was added to the agreement after she signed and initialed each
page of the document. After reviewing the agreement in its entirety, there is not a single
handwritten amendment referring to the father’s shared parenting time being set to
commence on May 28 and referencing a school year.
{¶11} The only handwritten amendment that is arguably close, and which occurs
on the second page of the agreement, identified by Mother as the location of the supposed
unauthorized amendment, is one alteration adjacent to the clause entitled, “Mother’s and
Father’s Midweek/Weekend Parenting Time.” The amendment indicated the
shared-parenting schedule would be “commencing on May 27, 2016 and continuing
thereafter until further order of the court.” There is no reference to a school year, and the
operative terms of the shared-parenting time were included in the typewritten portion of
the clause, not the handwritten amendment. The “Parenting Time” clause provides a
general schedule of shared parenting time and when to return the child to “school, day
care, or Mother’s residence as appropriate.” In other words, the contemplated schedule
set forth in the unaltered portion of the agreement referenced more than just a summer
schedule; it included the school year. It strains credulity to claim that an unauthorized
amendment to a typed clause occurred after Mother signed the agreement and initialed
each page, when the document contains numerous handwritten interlineations not being
contested.
{¶12} We acknowledge the existence of another handwritten interlineation
specifically discussing Father’s shared-parenting time, but that clause was set to
commence on April 13, 2016, and terminate on May 26 when the terms of the “Parenting
Time” clause commenced. It is safe to assume that Mother’s verified statement was not
referencing the latter amendment because that clause did not contemplate the summer
schedule either, unless, of course, Mother’s reference to “summer” was supposed to be
one to “spring,” although that still does not explain the typed, “Parenting Time” clause’s
reference to a school year as we noted before.
{¶13} Quite simply, there is no handwritten interlineation in the entire agreement
conforming to Mother’s verified allegation that someone altered the document after she
initialed each page and signed it. Mother’s claim is not supported by the record and is
perilously close to being frivolous.
{¶14} Finally, Mother’s reliance on Bottum v. Jankovic, 8th Dist. Cuyahoga No.
99526, 2013-Ohio-4914, ¶ 12, is misplaced. The trial court’s decision conforms with the
law and analysis provided in that case. It was held that “where the [settlement]
agreement is read into the record in open court and agreed upon, the court may enter
judgment adopting its terms.” Id., citing Grubic, 8th Dist. Cuyahoga No. 73793, 1999
Ohio App. LEXIS 4200, at 9; and Zigmont v. Toto, 47 Ohio App. 3d 181, 547 N.E.2d
1208 (8th Dist.1988). “‘Absent fraud, duress, overreaching or undue influence, a
settlement agreement between parties in a divorce is enforceable.’” Id. at ¶ 11, quoting
Diguilio v. Diguilio, 8th Dist. Cuyahoga No. 81860, 2003-Ohio-2197, ¶ 33. If the record
does not contain the terms of the in-court agreement or the judgment entry does not
contain the signed agreement by incorporation, only then does the court need to consider
the existence of a factual dispute over the oral agreement. Id. In Bottum, the parties
negotiated a settlement during a break in trial, set forth the operative terms of the
agreement on the record, and as a result, the trial court properly adopted the settlement.
Id. at ¶ 14. It was concluded that the only escape from the agreement was to prove fraud,
duress, or undue influence. Id. Finding proof of none of those, the panel concluded that
the trial court properly adopted the settlement agreement. Id.
{¶15} In this case, the settlement agreement was incorporated into the journal
entry, and therefore, we must reach the same conclusion as the Bottum panel before us.
Mother has not claimed her signature was obtained through fraud, undue influence, or
duress and has not requested a revisit to the conclusions made in Bottum. The
shared-parenting settlement agreement is binding, and the trial court properly accepted
and incorporated the parties’ agreement into the judgment entry resolving the disputed
issues.
{¶16} The trial court did not err, and therefore, we affirm.
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.
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR