[Cite as Cochenour v. Cochenour, 2014-Ohio-3128.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
SHARON L. COCHENOUR, :
Plaintiff-Appellee, : Case No. 13CA3420 v. : DECISION AND SPENCER O. COCHENOUR, : JUDGMENT ENTRY
Defendant-Appellant. : RELEASED 07/14/2014
APPEARANCES:
James R. Kingsley, Circleville, Ohio, for Appellant.
Richard A.L. Piatt and Megan M. Beyland, Columbus, Ohio, for Appellee.
Hoover, J.
{¶ 1} Spencer O. Cochenour (“appellant”) appeals the judgment of the Ross County
Common Pleas Court, Division of Domestic Relations, which denied his motion to vacate an
Agreed Judgment Entry. The Agreed Judgment Entry contains the terms of a post-divorce decree
settlement agreement entered between appellant and his ex-wife, Sharon L. Cochenour
(“appellee”). Appellant contends that the divorce decree governing this case is void due to a lack
of specificity, and thus, the judgment adopting the post-divorce decree settlement agreement is
also void. Alternatively, appellant argues that the post-divorce decree settlement agreement is
void under law, because the agreement is not supported by adequate consideration.
{¶ 2} We find that any errors or irregularities contained within the divorce decree merely
rendered the decree voidable, not void, and because appellant did not raise his concerns by direct
appeal or a proper Civ.R. 60(B) motion, the trial court did not have the authority to grant the Ross App. No. 13CA3420 2
relief requested by appellant. Moreover, appellant relied upon the terms of the divorce decree for
nearly two and a half years before raising concerns about its validity, and thus such concerns are
barred by the doctrine of estoppel. We also find that because appellant consented to the filing of
the Agreed Judgment Entry that adopted the post-divorce decree settlement agreement, he could
not later collaterally or directly attack the judgment entry. Accordingly, the judgment of the trial
court is affirmed.
I. FACTS & PROCEDURAL HISTORY
{¶ 3} As an initial matter, we note that the record transmitted on appeal is incomplete.
Appellee filed for divorce on September 26, 2008; and the final divorce decree was entered on
December 20, 2010.1 However, the first filing contained within the appellate record is time-
stamped March 18, 2013. Thus, the appellate record is devoid of any certified entries, filings, or
transcripts documenting pre-divorce decree proceedings, and is also devoid of a large portion of
the certified entries, filings, and transcripts of the post-divorce decree proceedings. The Agreed
Judgment Entry memorializing the post-divorce decree settlement agreement that is the subject
of appellant’s motion to vacate, and the transcript of the hearing on the motion to vacate, are
however, contained within the appellate record. “An appellant bears the duty to show error by
reference to matters in the record.” Posey v. Posey, 4th Dist. Ross No. 07CA2968, 2008-Ohio-
536, ¶ 17, citing Knapp v. Edwards Laboratories, 61 Ohio St.3d 197, 199, 400 N.E.2d 384
(1980). Thus, it is appellant’s duty to ensure that a complete record is transmitted on appeal. Id.
In light of the foregoing, we will review appellant’s assignment of error and related arguments to
the best of our ability.
1 A file-stamped copy of the divorce decree was attached as an exhibit to a post-divorce decree motion that is contained within the appellate record. Thus, the record does contain an uncertified copy of the divorce decree. Ross App. No. 13CA3420 3
{¶ 4} Based on the record before us, the following facts can be deduced. The parties
married on April 9, 1994. [See Divorce Decree at 2, attached as exhibit to Record Document 5.]
The parties had two children born as issue of the marriage; A.C. and P.C. [Id.] Appellee filed a
complaint for divorce and appellant counterclaimed for divorce. [Id. at 1.] The final divorce
decree, entered by the trial court on December 20, 2010, granted the divorce on grounds of
incompatibility and “approved and adopted” the “agreement of the parties” which purportedly
resolved “most of the issues before the Court.” [Id. at 2.] The divorce decree also valued the
marital real estate at $185,500. [Id. at 3.] We note that the divorce decree does not indicate where
the “agreement of the parties” can be found in the record, and does not include the agreement as
an attachment. Appellant, however, has attached a time-stamped copy of the divorce hearing
transcript to the Appendix of his appellate brief, and the transcript contains a recitation of the
agreement.2 We also note that neither party filed a notice of appeal following entry of the divorce
decree.
{¶ 5} After moving forward nearly two and a half years to March 26, 2013, the appellate
record contains a Memorandum Entry. [See Record Document 2.] The hand-written
Memorandum Entry, dated March 20, 2013, and signed by the parties and their counsel, as well
as by the magistrate and trial judge, purportedly contains the terms of the post-divorce decree
settlement agreement that is the subject of appellant’s motion to vacate. The trial court officially
adopted the Memorandum Entry, and made the settlement agreement an order of the court, by
filing an Agreed Judgment Entry on May 2, 2013, which sets forth the post-divorce decree
settlement agreement as follows:
2 Generally, appellate courts have held that attaching a complete copy of a proceeding transcript to the appellant’s brief is not sufficient to make the purported transcript a part of the appellate record. State v. McGee, 2013-Ohio- 4165, 996 N.E.2d 1048, ¶ 12 (7th Dist.). However, when the transcript has been previously filed with the trial court, as evidenced by a file stamp, as the case is here, we may consider the transcript on appeal. Id. Ross App. No. 13CA3420 4
* * * IT IS THEREFORE ORDERED, ADJUDGED and DECREED as follows:
1. That the parties agree that 273 Brown Chapel Road, Clarksburg, Ohio 43115,
shall be refinanced by Plaintiff forthwith;
2. That the parties shall set a closing as soon as practicable;
3. That the Defendant shall receive $15,000 from closing proceeds. Said sum is
in satisfaction of the entire division of property;
4. That each party shall keep any retirement accounts in their names;
5. That all medical bills shall be deemed reimbursed through January 1, 2013;
6. That Plaintiff shall receive Quit Claim Deed and proceeds shall be payable
from Plaintiff’s counsel’s trust account to Defendant and his counsel;
7. That counsel shall report to Court by June 15, 2013;
8. That Defendant shall cooperate in the finance process including signing Quit
Claim Deed for bank;
9. That all pending Motions shall be dismissed.
IT IS SO ORDERED.
[Record Document 12.]
{¶ 6} On June 25, 2013, appellant filed a “Motion to Vacate the 3/20/13 Memo Entry and
the 5/2/13 Agreed Judgment Entry.” [Record Document 16.] A hearing on the motion to vacate
was held on September 27, 2013. Both appellant and appellee testified at the hearing. A large
focus of the testimony dealt with the division of property; especially the proceeds that appellant
would be entitled to upon appellee becoming sole owner of the marital residence, and the
division of the parties’ respective retirement accounts. Ross App. No. 13CA3420 5
{¶ 7} Appellee testified that under the original “agreement” referenced in the divorce
decree, she was to retain the marital residence. She testified that the parties further agreed that
they would share equally in the home equity; and equity would be calculated by subtracting the
mortgage pay-off amount from the value of the home. Appellee further indicated that the parties
could not agree on the value of the home, so they left that determination to the court, which
ultimately concluded in the divorce decree that the marital residence was worth $185,500.
Appellee also testified that the mortgage pay-off amount was approximately $140,000. Thus,
under the terms of the agreement referenced in the divorce decree, appellant’s share of the home
equity equaled approximately $22,750. Appellee also testified that under the divorce decree
agreement, the parties’ retirement accounts were to be valuated and the combined marital
portions were “to be set-off by individual reciprocal QDRO’s.”3
{¶ 8} Appellee further explained how the parties later agreed that appellant would be
entitled to only $15,000 from the home equity proceeds, as stated in the 2013 Memorandum
Entry and Agreed Judgment Entry. According to appellee, appellant owed her money for
payment of their children’s medical bills, and he had taken $5,000 worth of personal property
that he was not entitled to receive under the divorce decree. Offsetting those amounts from the
home equity proceeds totaled $15,000, and according to appellee, the parties agreed that $15,000
was the amount that appellant would receive upon the closing of the marital residence. Appellee
also explained that the parties never had their individual retirement accounts professionally
valuated, but they agreed to keep their own accounts as stated in the Memorandum Entry and
Agreed Judgment Entry, because in their individual estimation, the accounts were relatively
equal in value.
3 A review of the divorce hearing transcript attached to appellant’s brief corroborates appellee’s testimony in regards to the terms of the divorce agreement. Ross App. No. 13CA3420 6
{¶ 9} Appellant testified that he owes appellee approximately $6,000 in medical bills, but
he could not account for the remaining difference between the equity amount he is owed under
the divorce decree agreement, and the amount listed in the Memorandum Entry and Agreed
Judgment Entry. Appellant specifically denied that the parties ever agreed to offset the equity
amount by the amount of personal property he received. In fact, appellant testified that he has not
received all of his personal property. In regards to the retirement accounts, appellant testified that
he never saw a valuation of the retirement accounts, but that the accounts “could never be equal.”
{¶ 10} Appellant also testified that he was present when the Memorandum Entry was
prepared. He admitted to signing the Memorandum Entry, but stated that he “rushed through it”,
did not completely read the document, and that he was pressured by his lawyer to sign the
document.
{¶ 11} The trial court orally overruled the motion to vacate at the hearing, stating that:
It seems clear to this Court that the Magistrate’s Decision which was
objected to, by the way, and the Decree of Divorce was put in in [sic] December
of 2010, specifically awarded the defendant certain properties. One of those
property rights was a one-half interest in the value of the equity in the real estate
as determined by appraisal which would occur subsequent to the agreement. The
other property right is an interest in the value of the property of the parties
combined pension plans or retirement plans. This is both, these are both set forth
very clearly in the transcript. And the Decree of Divorce refers to the agreement
of the parties set forth on the record. So in December of 2010, this defendant had
property rights established by the Decree in a potential QDRO and in the real
estate. Then throughout an extremely litigious two and a half more years, we get Ross App. No. 13CA3420 7
to the point, and oh, before we get to the, before we get to the actual Agreed
Judgment Entry which is in dispute, the Decree of Divorce refers to the parties’
agreement, probably was not drafted artfully. The fault lies with the parties, their
previous counsel, the Magistrate and this Court for this mess, and it is a mess, and
I think we all agree. But the Decree referred to the agreement of the parties, the
parties’ agreement is on record in the transcript and can be defined. It referred to
the defendant’s own proposed sharating [sic] plan, Shared Parenting Plan for the
allocation of parental rights and responsibilities. So this Court finds that it is not a
void Decree in December of 2010, that it does address all issues. And as I’ve
previously stated, creates two specific property rights we’re [sic] at issue now.
Right to receive proceeds from the refinance of the house, and the right to have an
interest in the adjusted retirement plans of the parties.
Now, a pertinent agreement entry that occurred in June of 2012, signed off
by counsel, Mr. Piatt, and Jonathan Schmidt who was appearing at that time for
Spencer Cochenour, signed by the Magistrate, states that the defendant agrees he
owes six thousand forty-one dollars and ninety-four cents. It also states that all
pending motions for contempt shall remain pending. There’s nothing in the file
that indicates that in March of 2013, that these pending motions for contempt
were ever withdrawn or ever dismissed. So the file reflects that on March 20th,
2013, this defendant had a motion to cite him for contempt of court pending. He’s
acknowledged in his own testimony that he owed about six thousand dollars for
medical bills. He could have been, in the contempt citation which was pending on
March 20th, he could have been jailed. He could have been ordered to pay his Ross App. No. 13CA3420 8
attorney’s fees, his wife’s attorneys fees, or his ex-wife’s attorneys fees. He could
have been ordered other financial sanctions. He could have suffered, he was in
jeopardy. So he traded. The six thousand dollars, the sanctions that could go along
with the motion to cite him for contempt, and he negotiated through competent
counsel, nobody’s testified, I’ve heard no expert witness testimony to indicate that
Ms. Barrington acted ineffectively here. I’ve heard no testimony to indicate that
the defendant can’t read. That he’s uneducated. That he was brow-beaten by his
attorney. Maybe she said we’ve got to get this over with, or we’ve got to move
on, but the defendant, there’s no evidence to indicate that this defendant is a
dunce. He signed the document. The document maybe is a little bit hard to read,
but on the two main issues involved here are clear. He was accepting fifteen
thousand dollars in exchange for the dismissal of the contempt citation, the
satisfaction of the six thousand dollar debt.
I might also add that Section 9 of that agreement says all, and the word all
is underlined, all pending motions shall be dismissed. That means the one that
Mrs. Barrington filed for the approval of the nunc pro tunc entry. So, if I find that
your motion concerning the Agreed Judgment Entry is not well taken, then the
Judgment Entry filed December 10th, December of 2010, is also valid. You can,
and if, I don’t see where you can file an appeal on a motion, on an entry that was
filed about three years ago.
I find that the motion is not well taken. Your client is intelligent. He’s
employed. He can read. He partially read the document. He signed off on the
document. The law is clear that if you sign off on the document, you’re Ross App. No. 13CA3420 9
responsible for what’s in it. I also find that there was adequate consideration, it
may not have been dollar for dollar consideration, but there was far more than no
consideration and there was sufficient consideration for his agreement. And he
didn’t modify the property provisions of the Decree. The Decree established that
he had property rights. One was to receive a certain interest in that real estate. He
bargained that away for fifteen thousand dollars. He had certain rights in the
retirement plans. He bargained that away for the dismissal of the contempt and the
fifteen thousand dollars. The motion’s not well taken. Its overruled.
[Transcript at 58-62.] The trial court’s decision denying the motion to vacate was subsequently
journalized. [See Record Document 18.] Appellant then filed his Notice of Appeal.
II. ASSIGNMENT OF ERROR
{¶ 12} On appeal, appellant asserts the following assignment of error for review:
Assignment of Error:
DID THE TRIAL COURT COMMIT PREJUDICIAL [ERROR] WHEN IT OVERRULED PLAINTIFF’S [SIC] MOTION TO VACATE THE SETTLMENT AGREEMENT? III. STANDARD OF REVIEW {¶ 13} While appellant’s request to vacate was not couched in terms of a Civ.R. 60(B)
motion, his counsel stated at the September 27, 2013 hearing that the motion was filed pursuant
to Civ.R. 60(B). [Transcript at 1.] However, at the trial level, and in support of his assignment of
error on appeal, appellant contends that both the divorce decree and the post-divorce decree
settlement agreement are void.
{¶ 14} “When a party claims that a judgment is void, that party need not comply with
Civ.R. 60(B). Instead, a trial court retains inherent authority to vacate a void judgment.” Blaine
v. Blaine, 4th Dist. Jackson No. 10CA15, 2011-Ohio-1654, ¶ 17; see also Pryor v. Pryor, 4th Ross App. No. 13CA3420 10
Dist. Ross No. 11CA3218, 2012-Ohio-756, ¶¶ 5-8 (treating motion to vacate divorce decree as a
motion to set aside a void judgment and not conducting Civ.R. 60(B) analysis). “When a party
incorrectly seeks relief under Civ.R. 60(B) in an attempt to vacate a void judgment, a court will
‘treat the motion as a common law motion to vacate or set aside the judgment * * *.’ ” Blaine at
¶ 17, quoting Beachler v. Beachler, 12th Dist. Preble No. CA2006-03-007, 2007-Ohio-1220, ¶
19.
{¶ 15} Upon reviewing the motion and the motion-hearing transcript, it is evident that the
parties and the trial court evaluated the motion as a motion to vacate a void judgment, rather than
focusing on whether appellant had satisfied the requirements of Civ.R. 60(B).
{¶ 16} “The determination of whether a judgment is void presents a question of law.”
Patten v. Patten, 4th Dist. Highland No. 10CA15, 2011-Ohio-4254, ¶ 17, citing Blaine at ¶ 19. “
‘We review questions of law de novo.’ ” State v. Elkins, 4th Dist. Hocking No. 07CA1, 2008-
Ohio-674, ¶ 12, quoting Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-
6499, 858 N.E.2d 330, ¶ 23.
IV. LAW AND ANALYSIS
{¶ 17} Appellant makes two distinct arguments in support of his sole assignment of error.
First, appellant contends that the divorce decree is void for lack of specificity and because of the
trial court’s failure to ensure specificity. In turn, appellant argues that because the divorce decree
is invalid, the post-divorce decree settlement agreement is also invalid. Alternatively, appellant
contends that the post-divorce decree settlement agreement is void because, in his view, the
agreement was not supported by new consideration; but rather “engulfed” the parties’ pre-
existing duties under the divorce decree. Moreover, appellant argues that the settlement Ross App. No. 13CA3420 11
agreement was not fair and equitable, or otherwise put, appellant contends that if consideration
was present, it was not quid pro quo consideration.
A. The Divorce Decree
{¶ 18} Appellee asserts that the issue regarding the validity of the divorce decree was not
properly before the trial court, because appellant did not file a motion to vacate the divorce
decree, but rather filed a motion to vacate the post-divorce decree settlement agreement. We
disagree. Appellant’s motion and memorandum in support implicitly makes the argument that
the divorce decree is void for lack of specificity, and the argument was raised at the motion
hearing. [See Record Document 16; Transcript at 10-21.] Thus, we must decide whether the
errors alleged by appellant render the divorce decree void, or merely voidable.
{¶ 19} “ ‘The distinction between “void” and “voidable” is crucial. If a judgment is
deemed void, it is considered a legal nullity which can be attacked collaterally. Conversely, if a
judgment is deemed voidable, it will have the effect of a proper legal order unless its propriety is
successfully challenged through a direct attack on the merits.’ ” May v. May, 4th Dist. Adams
No. 11CA910, 2012-Ohio-2348, ¶ 31, quoting State v. Montgomery, 6th Dist. Huron No. H-02-
039, 2003-Ohio-4095, ¶ 10, quoting Clark v. Wilson, 11th Dist. Trumbull No. 2000-T-0063,
2000 WL 1050524, *2 (July 28, 2000). “[A] judgment is generally void only when the court
rendering the judgment lacks subject-matter jurisdiction or jurisdiction over the parties * * *.”
Miller v. Nelson-Miller, 132 Ohio St.3d 381, 2012-Ohio-2845, 972 N.E.2d 568, ¶12. In contrast,
“ ‘[a] voidable judgment is one rendered by a court having jurisdiction and although seemingly
valid, is irregular and erroneous.’ ” May at ¶ 31, quoting Montgomery at ¶ 9.
{¶ 20} It is well-settled law in Ohio that courts have the inherent authority to vacate a
void judgment at any time. Milton Banking Co. v. Dulaney, 4th Dist. Jackson No. 09CA10, Ross App. No. 13CA3420 12
2010-Ohio-1907, ¶ 26; Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶¶
46, 48. However, “[a] voidable judgment is subject to direct appeal * * * and to the provisions of
Civ.R. 60(B). A Civ.R. 60(B) application for relief must be made to the trial court that rendered
the judgment from which relief is sought.” Montgomery at ¶ 9; see also GMAC Mtge., LLC v.
Lee, 10th Dist. Franklin No. 11AP-796, 2012-Ohio-1157, ¶ 16 (voidable judgment was subject to
reversal on appeal or to relief under Civ.R. 60(B)); Deckerd v. Deckered, 7th Dist. Columbiana
No. 98-CO-59, 1999 WL 439017, *2 (June 24, 1999) (exclusive means to challenge a voidable
judgment is Civ.R. 60(B)); Brown v. Brown, 2d Dist. Greene No. 90-CA-41, 1991 WL 15986, *3
(Feb. 5, 1991) (because the judgments were voidable and not void the appellant should have
sought relief through Civ.R. 60(B)); Milton Banking Co. at ¶ 26 (Civ.R. 60(B) provides the
exclusive means of vacating voidable judgments); McIntyre v. Braydich, 11th Dist. Trumbull No.
96-T-5602, 1997 WL 772936, *3 (Dec. 5, 1997) (a court has no inherent authority to vacate a
voidable judgment); Evans v. Ohio Supreme Court, 10th Dist. Franklin No. 02AP-736, 2003-
Ohio-959, ¶ 17 (voidable judgments may only be challenged on direct appeal); Mayfield Hts. v.
N.K., 8th Dist. Cuyahoga No. 93166, 2010-Ohio-909, ¶ 30 (because the judgment was voidable
the trial court did not have the authority to vacate it); Black v. Aristech Chem. Co., 4th Dist.
Scioto No. 07CA3155, 2008-Ohio-7038, ¶ 19 (“If a judgment is merely voidable, it may not be
collaterally attacked.”).
{¶ 21} Thus, if the divorce decree is void for lack of specificity, as argued by appellant,
then the trial court would possess the inherent authority to vacate the judgment, and any
judgment based on it, at any time. If, however, the lack of specificity merely renders the divorce
decree voidable, then the trial court would not possess the inherent authority to vacate the decree Ross App. No. 13CA3420 13
pursuant to appellant’s motion to vacate for voidness, but rather, the decree could only be
challenged by direct appeal or motion pursuant to Civ.R. 60(B).
{¶ 22} In an analogous case, we determined that a divorce decree lacking in specificity
renders the decree voidable, not void. See Karnes v. Karnes, 4th Dist. Athens No. 95CA1666,
1996 WL 453900 (Aug. 8, 1996). In Karnes, the referee who presided over the divorce and
custody proceedings recommended that plaintiff be granted a divorce and receive custody of the
minor child. Id. at *1. The referee’s report also recommended that the defendant pay child
support. Id. The trial court adopted the referee’s report, but the divorce decree did not specify
which party was granted custody of the minor child or the exact amount of child support due
each week. Id. Defendant appealed from the divorce decree, but we affirmed the judgment of the
trial court. Id. Thereafter, the trial court found defendant in contempt for failing to pay child
support. Id. Defendant again appealed, this time alleging that because the divorce decree did not
specify which party had custody of the child or the exact amount of child support due, the
original decree and all subsequent entries stemming from the decree were void and
unenforceable. Id. We held that even if we were to assume that the divorce decree did not
contain the appropriate statement of relief, such judgment would be voidable, not void. Id. (“A
judgment must contain a statement of relief to which a party is entitled. * * * A judgment which
does not contain this statement of relief is erroneous and voidable.”). Thus, we determined that
because the defendant did not raise the specificity issue on his first direct appeal, he was barred
from subsequently raising the issue by the doctrine of res judicata. Id.
{¶ 23} Here, the trial court admitted that the divorce decree “was not drafted artfully”
and “is a mess”; but even if flawed, the divorce decree is not void as appellant contends because
the trial court possessed both subject-matter jurisdiction over the divorce and personal Ross App. No. 13CA3420 14
jurisdiction over the parties. Rather, any flaws or irregularities render the decree voidable. See
Karnes, supra; see also In re Murphy, 10 Ohio App.3d 134, 461 N.E.2d 910 (1st Dist.1983),
paragraph two of the syllabus (“When a separation agreement omits assets that are both
substantial in relative amount and material to an informed and deliberate agreement about an
equitable division of the property, such omissions render the dissolution decree voidable, and the
decree can be vacated by motion for relief filed under Civ.R. 60(B)(5).”). Had appellant had true
concerns regarding the specificity of the divorce decree, he should have filed a timely direct
appeal or a motion to vacate the divorce decree pursuant to Civ.R.60(B). A trial court lacks
authority to grant relief from a voidable judgment entry outside of those prescribed procedures.
See Walker v. Walker, 9th Dist. Summit No. 12978, 1987 WL 15591, *5 (Aug. 5, 1987)4 (“If the
judgment was voidable and not appealed, as was the case here, it is not a nullity, it cannot be
disregarded, it cannot be attacked collaterally, and it remains in full force and effect.”). Thus, the
trial court did not err in denying appellant’s motion to vacate the post-divorce decree settlement
agreement on the basis that the divorce decree was void.
{¶ 24} Moreover, we further conclude that in the instant case, appellant is estopped from
challenging the validity of the divorce decree. “ ‘ “[E]stoppel” is a bar that precludes a person
from denying a fact that has become settled by an act of the person himself. Courts do not need
to find that a person had any scienter before applying estoppel. Therefore, estoppel applies when
a party acts inconsistent with a claimed right, regardless of whether the person is knowingly
acting inconsistent with that right.’ ” Lamb v. Lamb, 2d Dist. Montgomery No. 92-DM-1074,
2011-Ohio-2970, ¶ 13, quoting Cornerstone Premium Motors, Inc. v. Mosolovich, 7th Dist.
Columbiana No. 05CO48, 2006-Ohio-3523, ¶ 22. The divorce decree in this case was rendered
in December 2010. The alleged flaws and defects were immediately apparent, and appellant 4 Both parties rely upon Walker in their appellate briefs, albeit for separate propositions of law. Ross App. No. 13CA3420 15
should have sought relief then. Instead, the parties relied upon the validity of the divorce decree
as evidenced by the filing of competing contempt motions, and in appellant’s instance, in his
decision to remarry. Appellant did not challenge the validity of the decree until two and half
years after it was entered, and only after he apparently changed his mind in regards to the post-
divorce decree settlement agreement. Put simply, after acting as though the decree was valid for
over two years, appellant’s attempted collateral attack on the validity of the divorce decree is
untimely and improper. See Miller, 132 Ohio St.3d 381, 2012-Ohio-2845, 972 N.E.2d 568, at ¶
18-20 (concluding that wife could not collaterally attack a voidable judgment entry of divorce
over three years after judgment was entered, where the defect was easily discoverable, in no way
infringed upon the parties’ due process rights, and where the parties explicitly relied on the
validity of the divorce decree in order to remarry).
{¶ 25} Based on the foregoing, appellant’s argument that the original divorce decree is
void, and thus the resulting post-divorce decree settlement agreement is also void, is without
merit.
B. The Post-Divorce Decree Settlement Agreement and Related Entries
{¶ 26} Appellant also contends that the trial court erred in denying his motion to vacate
the Memorandum Entry and Agreed Judgment Entry adopting the post-divorce decree settlement
agreement, because in his view, the settlement agreement is not a valid contract. Specifically,
appellant argues that the post-divorce decree settlement agreement is not supported by any new
consideration, but rather encapsulates the pre-existing duties of the parties under the divorce
decree. Alternatively, appellant contends that to the extent that the settlement agreement’s
resolution of the medical bill issue constitutes consideration, it is not quid pro quo consideration.
For the reasons set forth below, we find that the trial court did not err in denying the motion. Ross App. No. 13CA3420 16
{¶ 27} In denying appellant’s motion to vacate, the trial court determined that the
settlement agreement was supported by adequate consideration. However, in our view, such a
conclusion need not be reached in the instant case.
{¶ 28} A settlement agreement is a contract designed to terminate a claim by ending
litigation and is highly favored in the law. Barstow v. O.U. Real Estate, III, Inc., 4th Dist. Athens
No. 01CA49, 2002-Ohio-4989, ¶ 37. “When parties voluntarily enter into an oral settlement
agreement in the presence of the court, the agreement constitutes a binding contract.” Id.
Because settlement agreements are enforceable with the same degree of formality and
particularity as contracts, they cannot be unilaterally repudiated. Id. at ¶ 38. Thus, settlement
agreements “can only be set aside for the same reasons that any other contract could be
rescinded, such as fraud, duress, or undue influence.” Id.; see also Colosimo v. Colosimo, 8th
Dist. Cuyahoga No. 91883, 2009-Ohio-3892, ¶ 11 (“Contracts, including settlement agreements,
do not need to be fair and equitable to be binding and enforceable, so long as they are not
produced by fraud, duress, overreaching or undue influence.”).
{¶ 29} Moreover, “ ‘[t]his court has held that a party may not directly or collaterally
attack a consent judgment in the absence of allegations of irregularity or fraud in the
procurement of the judgment.’ ” Mynes v. Brooks, 4th Dist. Scioto No. 07CA3185, 2010-Ohio-
2126, ¶ 16, quoting Shanks v. Shanks, 4th Dist. Ross No. 96CA2252, 1997 WL 114397, *4 (Mar.
10, 1997). This holding is consistent with other courts that have reached similar results in cases
where a party attacked an agreed judgment. Id. (citing various Ohio court cases facing similar
issues). Our holding in Mynes and Shanks is also consistent with the Ohio Supreme Court’s
pronouncement that “[i]n order to effect a rescission of a binding settlement agreement entered
into in the presence of the court, a party must file a motion to set the agreement aside; and, in the Ross App. No. 13CA3420 17
absence of such motion, a trial court may properly sign a journal entry reflecting the settlement
agreement.” Spercel v. Sterling Industries, Inc., 31 Ohio St.2d 36, 285 N.E.2d 324 (1972),
paragraph two of the syllabus; see also Smith v. Kroegel, 4th Dist. Meigs No. 421, 1989 WL
159077, *2 (Dec. 7, 1989), quoting Bolen v. Young, 8 Ohio App.3d 36, 37, 455 N.E.2d 1316
(10th Dist.1982) (“ ‘Where the settlement agreement is arrived at by the parties in open court and
preserved by being read into the record or being reduced to writing and filed, then the trial judge
may * * * approve a journal entry which accurately reflects the terms of the agreement as his
judgment.”).
{¶ 30} Here, the now disputed settlement agreement was recited by the parties in open
court and agreed upon in open court. The agreement was even preserved by being reduced to
writing via the Memorandum Entry. In addition, the Memorandum Entry was filed with the trial
court. Both parties and their counsel were present during settlement negotiations; and the
Memorandum Entry bears their signatures. Appellant also testified that he signed the
Memorandum Entry. Several months thereafter, the trial court approved the Agreed Judgment
Entry, which accurately reflects the terms of the settlement agreement, and adopts the agreement
as its judgment. Appellant made no attempts to vacate or to set aside the settlement agreement
prior to the journalization of the Agreed Judgment Entry. In light of the circumstances, the
Agreed Judgment Entry effectively acts as a consent judgment, which as discussed above, may
not be directly or collaterally attacked.
{¶ 31} Furthermore, appellant has not alleged any irregularities or fraud in the
procurement of the Agreed Judgment Entry. Although the appellant testified that he was
pressured to sign the Memorandum Entry by his trial counsel, such testimony does not
demonstrate fraud by the appellee. In any event, the trial court apparently did not find appellant’s Ross App. No. 13CA3420 18
testimony credible. Thus, pursuant to Mynes and Shanks, appellant should not have been
permitted to challenge the validity of the Agreed Judgment Entry memorializing the settlement
agreement of the parties. Accordingly, the trial court did not commit error in denying his motion
to vacate.
V. CONCLUSION
{¶ 32} Based on the foregoing, appellant’s sole assignment of error is overruled. The
judgment of the trial court is affirmed.
JUDGMENT AFFIRMED. Ross App. No. 13CA3420 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed. The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court, Division of Domestic Relations, 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.
Abele, P. J. & Harsha, J.: Concur in Judgment & Opinion.
For the Court
By: Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.