Waites v. Waites

[Cite as Waites v. Waites, 2011-Ohio-1504.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DEBRA M. WAITES : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
:
ROBERT L. WAITES : Case No. 10-CA-46
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Domestic Relations Division, Case No.
08DR360
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 23, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS C. LIPP PHILIP L. PROCTOR
123 South Broad Street P.O. Box 4803
Suite 309 Newark, OH 43058
Lancaster, OH 43130
Fairfield County, Case No. 10-CA-46 2
Farmer, P.J.
{¶1} On April 12, 1986, appellant, Robert Waites, and appellee, Debra Waites
were married. Appellee filed a complaint for divorce on July 2, 2008. Three children
were born of the marriage, with two children being emancipated at the time of the filing.
{¶2} On November 17, 2009, a divorce hearing was held wherein the parties
submitted a settlement agreement. Appellee's counsel agreed to submit a proposed
judgment entry based upon the terms of the settlement agreement.
{¶3} Appellee's counsel prepared the judgment entry, but appellant objected to
the terms, citing three key areas: spousal support, life insurance, and retirement assets.
{¶4} On May 3, 2010, appellant filed a motion to dismiss or to set aside
settlement memorandum. A non-oral hearing was set before a magistrate, and the
magistrate determined the matter would be decided upon the affidavits, memoranda,
and documents submitted by the parties. By judgment entry filed June 18, 2010, the
magistrate and the trial court ordered each party to submit a proposed judgment entry.
The trial court adopted appellee's proposed judgment entry decree of divorce on June
21, 2010.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "THE TRIAL COURT ABUSED ITS DISCRETION BY SUMMARILY
ADOPTING APPELLEE'S VERSION OF THE SETTLEMENT AGREEMENT AS THE
DIVORCE DECREE BECAUSE IT DOES NOT REPRESENT THE ACTUAL
SETTLEMENT OF THE PARTIES AND THE SETTLEMENT MEMORANDUM IS TOO
Fairfield County, Case No. 10-CA-46 3
AMBIGUOUS TO DETERMINE ANY CLEAR MEANING OR INTENT OF THE
PARTIES."
II
{¶7} "THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
CONDUCTING A STATUTORY FACTOR ANALYSIS FOR SPOUSAL SUPPORT AND
BY USING FIN PLAN AS A SUBSTITUTE FOR A FACTOR ANALYSIS."
I
{¶8} Appellant claims the trial court erred in adopting appellee's version of the
settlement agreement without conducting a hearing to review or clear up the
ambiguities. We disagree.
{¶9} "Absent fraud, duress, overreaching, or undue influence, a settlement
agreement entered into by parties in a divorce is enforceable." Haas v. Bauer, 156 Ohio
App.3d 26, 2004-Ohio-437, ¶16. As explained by our brethren from the First District in
Mulholland v. Mulholland, Hamilton App. No. C-030931, 2005-Ohio-1196, ¶15-17:
{¶10} "R.C. 3105.10(B)(2) specifically provides a trial court with the authority to
enforce separation agreements as follows:
{¶11} " 'A separation agreement that was voluntarily entered into by the parties
may be enforceable by the court of common pleas upon the motion of either party to the
agreement, if the court determines that it would be in the interests of justice and equity
to require enforcement of the separation agreement.'
{¶12} "The decision to enforce a separation agreement is a discretionary one
and will not be reversed on appeal absent an abuse of discretion. Schneider v.
Schneider (1996), 110 Ohio App.3d 487, 491, 674 N.E.2d 769. An abuse of discretion
Fairfield County, Case No. 10-CA-46 4
is more than an error of law or judgment; it implies that the trial court acted
unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140."
{¶13} Appellee and her counsel and appellant's counsel were present at the
November 17, 2009 hearing wherein the settlement agreement was memorialized for
the record. The only clarification offered during the hearing pertained to the
modification of the spousal support agreement:
{¶14} "MR. McCOY: I'm sorry, there's a preliminary matter, there's one thing I
want to point out; and that is that in the memorandum entry we've agreed for spousal
support for a period of ten years starting I think it was July of '08. And we are making
that modifiable by the Court.
{¶15} "***
{¶16} "MR. LIPP: The amount is modifiable.
{¶17} "JUDGE MOWRY: The amount but not the duration.
{¶18} "MR. LIPP: Not the duration is not modifiable.
{¶19} "JUDGE MOWRY: Okay.
{¶20} "MR. McCOY: Duration is modifiable. In other words, it can be shortened
if there would be remarriage or cohabitation and that type of thing.
{¶21} "JUDGE MOWRY: Well, that's a termination. That's not a mod- - - so it
can terminate on certain events.
{¶22} "MR. LIPP: Well, there's certain events that will terminate it; and we're - -
that cannot be modified, those certain events.
{¶23} "JUDGE MOWRY: Okay.
Fairfield County, Case No. 10-CA-46 5
{¶24} "MR. LIPP: The amount can be modified.
{¶25} "JUDGE MOWRY: So we can crunch numbers, but the only way the
duration would change is if we reach an event that terminates it. So it could terminate
earlier, but the maximum length is ten years.
{¶26} "MR. MCCOY: That's correct.
{¶27} "MR. LIPP: That's correct." T. at 3-5.
{¶28} Appellee was specifically questioned on direct examination about the
settlement agreement:
{¶29} "Q. Did you read and understand a memorandum entry and attachments
to the memorandum entry?
{¶30} "A. Yes, I did.
{¶31} "Q. Do they represent what you want the Court to approve and incorporate
into a final decree of divorce?
{¶32} "A. Yes, it does.
{¶33} "Q. Do they represent a fair and equitable distribution of your marital
property and debt?
{¶34} "A. Yes, it does.
{¶35} "Q. Does it represent proper support?
{¶36} "A. Yes, it does.
{¶37} "Q. Does it represent what is in the best interest of the remaining minor
child?
{¶38} "A. Yes, it does." T. at 7-8.
Fairfield County, Case No. 10-CA-46 6
{¶39} Appellant was not questioned as he was not present for the hearing, but
"was present for the signing of the documents." T. at 2. Appellant's counsel was
present to represent his interests. Id.{¶40} The trial court adopted the settlement "agreement that you've entered into,
ma'am, and that you, Mr. McCoy, and your client have signed as well." T. at 11. The
trial court then asked counsel about the judgment entry decree of divorce:
{¶41} "JUDGE MOWRY: ***Who is going to do the entry?
{¶42} "MR. LIPP: I guess I can do it, if you want, Carl.
{¶43} "MR. McCOY: You're the only one that can read it." Id. See, also,
Memorandum Entry filed November 17, 2009.
{¶44} Apparently, appellee's counsel submitted a proposed judgment entry in
April of 2010. On May 3, 2010, appellant filed a motion to dismiss or to set aside
settlement memorandum. A non-oral hearing was set before a magistrate, and the
magistrate determined the matter would be decided upon the affidavits, memoranda,
and documents submitted by the parties. See, Notice of Non-Oral Hearing filed May 5,
2010 and Magistrate's Orders filed June 1 and 9, 2010. Counsel for both parties agreed
to this procedure as evidenced by their signature and/or approval on the magistrate's
orders. Thereafter, the magistrate and the trial court ordered the following via judgment
entry filed June 18, 2010:
{¶45} "In this case, as has been this Court's practice since its inception, the
remedy for such a disagreement is for the parties to file their own version of a final
decree for the Court's consideration. The Court may adopt one version or merge the
submitted versions into its own decree based on the Memo Entry and testimony.
Fairfield County, Case No. 10-CA-46 7
{¶46} "Wherefore, the Court Orders that each party shall submit a final Decree
of Divorce for the Court's consideration within 30 days."
{¶47} The trial court adopted appellee's proposed final judgment entry decree of
divorce on July 21, 2010.
{¶48} Appellant now objects to this procedure, and argues an evidentiary
hearing should have been held. As noted supra, the parties agreed via the June 1 and
9, 2010 magistrate's orders to proceed without testimony.
{¶49} Civ.R. 53 governs magistrates. Subsection (D)(2)(b) provides the
following:
{¶50} "Motion to set aside magistrate's order. Any party may file a motion with
the court to set aside a magistrate's order. The motion shall state the moving party's
reasons with particularity and shall be filed not later than ten days after the magistrate's
order is filed. The pendency of a motion to set aside does not stay the effectiveness of
the magistrate's order, though the magistrate or the court may by order stay the
effectiveness of a magistrate's order."
{¶51} No motions to set aside the magistrate's orders were filed. We conclude
appellant's argument regarding the necessity of an evidentiary hearing is without merit.
{¶52} Appellant also argues the trial court's interpretation of the settlement
agreement was in error.
{¶53} Appellant argues the spousal support award of $350.00 then $300.00
following the minor child's emancipation was a per month agreement, not a per week
agreement. This court, as well as the trial court, is blessed with having the original
settlement agreement to review: Memorandum Entry filed November 17, 2009. In
Fairfield County, Case No. 10-CA-46 8
reviewing this document, approved by appellant, it is clear that the spousal support
award was to be per week. The word "month" is clearly crossed out and the parties
initialed the change.
{¶54} Appellant argues the pension distribution (ING Account and Buckeye
Ready Mix Profit-Sharing Plan) was in error. The settlement agreement clearly included
the following: "she gets ING acct.***split the profit sharing."
{¶55} Appellant also argues the following life insurance decision was not
included in the settlement agreement:
{¶56} "XV. LIFE INSURANCE: The Defendant shall pay for and maintain all life
insurance on his life which is available through his present or future employers,
including any optional life insurance available on his life, and shall name the Plaintiff as
sole and exclusive beneficiary on any and all said life insurance on his life which is
available through his place of employment and Defendant shall be required to comply
with this life insurance provision until Plaintiff's death." Judgment Entry Decree of
Divorce filed July 21, 2010.
{¶57} However, the settlement agreement clearly sets forth the following:
{¶58} "He carry her as sole beneficiary on life insurance available through work
– she can also purchase extra life insurance on his life and he will cooperate."
{¶59} We find the trial court's interpretation of the settlement agreement was
correct.
{¶60} Assignment of Error I is denied.
Fairfield County, Case No. 10-CA-46 9
II
{¶61} Appellant claims the trial court erred in failing to do an independent
analysis on spousal support. We disagree.
{¶62} On the issue of spousal support, the trial court stated the following in its
July 21, 2010 judgment entry decree of divorce:
{¶63} "7. The division of property is fair, just and equitable and further, the
division of marital property has been made in compliance with O.R.C. §3105.717. Each
party, by his/her signature on the Memorandum Entry, hereby waives any right to
findings of fact and conclusions of law regarding property and debt division matters,
spousal support matters and other matters required by the Ohio Revised Code and
therefore, this Court is not required to make such findings of fact and conclusions of law
as required by the Ohio Revised Code. This Court finds that the division of property
and debts as set forth herein is equitable within the meaning of the Ohio Revised Code
based upon the testimony at the final trial and the signatures of both parties on the
Memorandum Entry.
{¶64} "IV. SPOUSAL SUPPORT: ***The spousal support obligation of the
Defendant set forth herein shall be modifiable and subject to the continuing jurisdiction
of this Court.***Please see attached Fin Plan which sets forth how this Court arrived at
spousal support amount of $300.00 per week, plus processing charge as set forth
herein."
{¶65} We find the analysis called upon by the trial court was to interpret the
parties' settlement agreement. The "Fin Plan" analysis was mere "window dressing" to
a spousal support order that the trial court found to be enforceable and consistent with
Fairfield County, Case No. 10-CA-46 10
the settlement agreement submitted to the trial court during the November 17, 2009
hearing.
{¶66} Assignment of Error II is denied.
{¶67} The judgment of the Court of Common Pleas of Fairfield County, Ohio,
Domestic Relations Division is hereby affirmed.
By Farmer, P.J.
Wise, J. and
Edwards, J. concur.
s/ Sheila G. Farmer__________________
_s/ John W. Wise___________________
_s/ Julie A. Edwards________________
JUDGES
SGF/sg 314
Fairfield County, Case No. 10-CA-46 11
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DEBRA M. WAITES :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ROBERT L. WAITES :
:
Defendant-Appellant : CASE NO. 10-CA-46
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio, Domestic Relations
Division is affirmed. Costs to appellant.
s/ Sheila G. Farmer__________________
_s/ John W. Wise___________________
_s/ Julie A. Edwards________________
JUDGES