In re J.E.

2017 Ohio 536

• Court: Ohio Court of Appeals
• Decided: February 16, 2017
• Docket: 104473 & 105098
• Status: Published

Opinion

[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