[Cite as Jepsen v. Hoskisson, 2012-Ohio-2954.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: RON JEPSEN : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11-CA-41 : : KARRIE HOSKISSON : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 2006DR00079
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 20, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS LIPP MICAELA DEMING 123 S. Broad Street, Suite 309 5384 Whispering Oak Blvd. Lancaster, Ohio 43130 Hilliard, Ohio 43026 [Cite as Jepsen v. Hoskisson, 2012-Ohio-2954.]
Edwards, J.
{¶1} Defendant-appellant, Karrie Hoskisson, appeals from the July 7, 2011,
Judgment Entry of the Fairfield County Court of Common Pleas, Domestic Relations
Division denying her Civ. R. 52 Motion for Findings of Fact and Conclusions of law and
her Civ. R. 59 Motion for a New Trial. .
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Karrie Hoskisson and appellee Ronald Jepsen were married on
July 24, 1999. Two children were born as issue of such marriage. While one of the
children was born on February 6, 1998, the other was born on December 18, 1999.
{¶3} On February 6, 2006, appellant filed a complaint for divorce against
appellee. An Agreed Judgment Entry/Decree of Divorce was filed on November 16,
2007. Pursuant to the Separation Agreement that was incorporated into the Decree,
appellant was designated the residential parent and legal custodian of the children.
{¶4} Subsequently, on July 16, 2009, appellee filed a motion asking to be
designated temporary and permanent residential parent and legal custodian of the
children or, in the alternative, asking for a shared parenting plan. On February 10, 2010,
a handwritten Memorandum Entry was filed that outlined the parties’ agreement as to
shared parenting. The Memorandum Entry, which was signed by the parties and their
counsel, contained the following typewritten language: “This entry is to be filed but not
journalized. This entry is to be effective until such time that a formal entry had been filed
and journalized not exceeding 30 days.” A second Memorandum Entry was filed on
March 1, 2011 that addressed financial matters. This second Memorandum Entry also Fairfield County App. Case No. 11-CA-41 3
was signed by the parties and their counsel and contained the same typewritten
language.
{¶5} Thereafter, on June 16, 2011, appellant filed a “Notice to the Court.”
Appellant, in such notice, stated that she withdrew her consent to the Memorandum
Entry that was filed on March 1, 2011, but not journalized. Appellant noted that a formal
entry had never been filed and also indicated that she did not consent to the Judgment
Entry/Shared Parenting Plan that had been proposed by appellee on April 21, 2011. In
response, appellee, on June 27, 2011, filed a “Motion to Approve Judgment
Entry/Shared Parenting Decree and Shared Parenting Plan Being Submitted by the
Attorney for the Plaintiff Herewith.” On June 28, 2011, a Judgment Entry/Shared
Parenting Decree was filed. The same was signed by the trial court judge and
magistrate and stated that appellee and his counsel were in “agreement per
memorandum entries.” The June 28, 2011 Judgment Entry/Shared Parenting Decree
further stated as follows with respect to appellant: “agreement per memorandum entries
(now opposed)” and stated that “submitted draft on 4/21/11-opposed; see her notice to
the Court filed 6/16/11 withdrawing consent to Memorandum Entry.” Copies of the
February 10, 2010 and March 1, 2011, Memorandum Entries were attached to the
Judgment Entry.
{¶6} On July 6, 2011, appellant filed a Rule 29 Motion for a New Trial, arguing,
in part, that there was no agreement after March 31, 2011, because the Memorandum
Entry was only effective for thirty (30) days and because appellant “informed the Court
of the lack of an agreement and expressly withdrew her consent through Notice to the
Court on June 16, 2011.” Appellant argued that she had never agreed to the “agreed” Fairfield County App. Case No. 11-CA-41 4
entry that was prepared by appellee and signed by the trial court and that, therefore,
there was no valid agreement as to shared parenting. On the same date, appellant also
filed a motion asking for written findings of fact and conclusions of law pursuant to
Civ.R. 52.
{¶7} Pursuant to a Judgment Entry filed on July 7, 2011, the trial court denied
appellant’s Civ.R. 52 motion. The trial court also denied appellant’s Motion for a New
Trial. The trial court, in its Judgment Entry, stated, in relevant part, as follows:
{¶8} “Defendant has filed a Rule 52 Motion for written findings of fact and
conclusions of law, and a Rule 59 Motion for a New Trial.
{¶9} “The Court finds that the parties, with Counsel, appeared at Court on
separate occasions, negotiated agreements and entered into written Memorandum
Entries which were signed by the parties, their counsel and the Guardian ad Litem. No
contested testimony was presented to the Court. By signing the Memorandum Entry,
the parties and the Guardian ad Litem acknowledged that the negotiated agreement
was in the best interest of the minor children. Defendant’s Rule 52 Motion is hereby
found not well taken and shall be denied.
{¶10} “The Court finds that more than 30 days passed from the date the
Memorandum Entries were filed and the submissions of the final Entry. The final Entry
at issue herein had been signed by the Plaintiff, Plaintiff’s Counsel and the Guardian ad
Litem. The Defendant and her current counsel did not sign the final Entry as issue
herein; however, the Defendant and her prior Counsel had signed the Memorandum
Entries. Local Rule 21.4 provides, ‘If counsel and/or parties fail to submit an entry Fairfield County App. Case No. 11-CA-41 5
within the required time period, the Court may dismiss the matter.’ The court did not
dismiss the matter and signed the Entry as presented….”
{¶11} Appellant now appeals from the trial court’s July 7, 2011 Judgment Entry,
raising the following assignments of error on appeal:
{¶12} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ADOPTING AN ENTRY TO SETTLE AN ACTIVE CASE WITHOUT AGREEMENT BY
THE PARTIES OR A TRIAL ON THE MERITS.
{¶13} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING DEFENDANT-APPELLANT’S RULE 52 MOTION FOR WRITTEN FINDINGS
OF FACT AND CONCLUSIONS OF LAW.”
I
{¶14} Appellant, in her first assignment of error, argues that the trial court erred
by adopting an entry to settle the case when appellant was not in agreement with the
same. We agree.
{¶15} As is stated above, on February 10, 2011, and March 1, 2011, the parties
and their counsel signed handwritten Memorandum Entries. Both entries contained the
following typewritten language: “This entry is to be filed but not journalized. This entry is
to be effective until such time that a formal entry had been filed and journalized not
exceeding 30 days.” No “formal” entries were timely filed and journalized. Appellant, on
June 16, 2011, then filed a “Notice to the Court” stating that she withdrew her consent to
the Memorandum Entries.
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[Cite as Jepsen v. Hoskisson, 2012-Ohio-2954.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: RON JEPSEN : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11-CA-41 : : KARRIE HOSKISSON : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 2006DR00079
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 20, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS LIPP MICAELA DEMING 123 S. Broad Street, Suite 309 5384 Whispering Oak Blvd. Lancaster, Ohio 43130 Hilliard, Ohio 43026 [Cite as Jepsen v. Hoskisson, 2012-Ohio-2954.]
Edwards, J.
{¶1} Defendant-appellant, Karrie Hoskisson, appeals from the July 7, 2011,
Judgment Entry of the Fairfield County Court of Common Pleas, Domestic Relations
Division denying her Civ. R. 52 Motion for Findings of Fact and Conclusions of law and
her Civ. R. 59 Motion for a New Trial. .
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Karrie Hoskisson and appellee Ronald Jepsen were married on
July 24, 1999. Two children were born as issue of such marriage. While one of the
children was born on February 6, 1998, the other was born on December 18, 1999.
{¶3} On February 6, 2006, appellant filed a complaint for divorce against
appellee. An Agreed Judgment Entry/Decree of Divorce was filed on November 16,
2007. Pursuant to the Separation Agreement that was incorporated into the Decree,
appellant was designated the residential parent and legal custodian of the children.
{¶4} Subsequently, on July 16, 2009, appellee filed a motion asking to be
designated temporary and permanent residential parent and legal custodian of the
children or, in the alternative, asking for a shared parenting plan. On February 10, 2010,
a handwritten Memorandum Entry was filed that outlined the parties’ agreement as to
shared parenting. The Memorandum Entry, which was signed by the parties and their
counsel, contained the following typewritten language: “This entry is to be filed but not
journalized. This entry is to be effective until such time that a formal entry had been filed
and journalized not exceeding 30 days.” A second Memorandum Entry was filed on
March 1, 2011 that addressed financial matters. This second Memorandum Entry also Fairfield County App. Case No. 11-CA-41 3
was signed by the parties and their counsel and contained the same typewritten
language.
{¶5} Thereafter, on June 16, 2011, appellant filed a “Notice to the Court.”
Appellant, in such notice, stated that she withdrew her consent to the Memorandum
Entry that was filed on March 1, 2011, but not journalized. Appellant noted that a formal
entry had never been filed and also indicated that she did not consent to the Judgment
Entry/Shared Parenting Plan that had been proposed by appellee on April 21, 2011. In
response, appellee, on June 27, 2011, filed a “Motion to Approve Judgment
Entry/Shared Parenting Decree and Shared Parenting Plan Being Submitted by the
Attorney for the Plaintiff Herewith.” On June 28, 2011, a Judgment Entry/Shared
Parenting Decree was filed. The same was signed by the trial court judge and
magistrate and stated that appellee and his counsel were in “agreement per
memorandum entries.” The June 28, 2011 Judgment Entry/Shared Parenting Decree
further stated as follows with respect to appellant: “agreement per memorandum entries
(now opposed)” and stated that “submitted draft on 4/21/11-opposed; see her notice to
the Court filed 6/16/11 withdrawing consent to Memorandum Entry.” Copies of the
February 10, 2010 and March 1, 2011, Memorandum Entries were attached to the
Judgment Entry.
{¶6} On July 6, 2011, appellant filed a Rule 29 Motion for a New Trial, arguing,
in part, that there was no agreement after March 31, 2011, because the Memorandum
Entry was only effective for thirty (30) days and because appellant “informed the Court
of the lack of an agreement and expressly withdrew her consent through Notice to the
Court on June 16, 2011.” Appellant argued that she had never agreed to the “agreed” Fairfield County App. Case No. 11-CA-41 4
entry that was prepared by appellee and signed by the trial court and that, therefore,
there was no valid agreement as to shared parenting. On the same date, appellant also
filed a motion asking for written findings of fact and conclusions of law pursuant to
Civ.R. 52.
{¶7} Pursuant to a Judgment Entry filed on July 7, 2011, the trial court denied
appellant’s Civ.R. 52 motion. The trial court also denied appellant’s Motion for a New
Trial. The trial court, in its Judgment Entry, stated, in relevant part, as follows:
{¶8} “Defendant has filed a Rule 52 Motion for written findings of fact and
conclusions of law, and a Rule 59 Motion for a New Trial.
{¶9} “The Court finds that the parties, with Counsel, appeared at Court on
separate occasions, negotiated agreements and entered into written Memorandum
Entries which were signed by the parties, their counsel and the Guardian ad Litem. No
contested testimony was presented to the Court. By signing the Memorandum Entry,
the parties and the Guardian ad Litem acknowledged that the negotiated agreement
was in the best interest of the minor children. Defendant’s Rule 52 Motion is hereby
found not well taken and shall be denied.
{¶10} “The Court finds that more than 30 days passed from the date the
Memorandum Entries were filed and the submissions of the final Entry. The final Entry
at issue herein had been signed by the Plaintiff, Plaintiff’s Counsel and the Guardian ad
Litem. The Defendant and her current counsel did not sign the final Entry as issue
herein; however, the Defendant and her prior Counsel had signed the Memorandum
Entries. Local Rule 21.4 provides, ‘If counsel and/or parties fail to submit an entry Fairfield County App. Case No. 11-CA-41 5
within the required time period, the Court may dismiss the matter.’ The court did not
dismiss the matter and signed the Entry as presented….”
{¶11} Appellant now appeals from the trial court’s July 7, 2011 Judgment Entry,
raising the following assignments of error on appeal:
{¶12} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
ADOPTING AN ENTRY TO SETTLE AN ACTIVE CASE WITHOUT AGREEMENT BY
THE PARTIES OR A TRIAL ON THE MERITS.
{¶13} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
DENYING DEFENDANT-APPELLANT’S RULE 52 MOTION FOR WRITTEN FINDINGS
OF FACT AND CONCLUSIONS OF LAW.”
I
{¶14} Appellant, in her first assignment of error, argues that the trial court erred
by adopting an entry to settle the case when appellant was not in agreement with the
same. We agree.
{¶15} As is stated above, on February 10, 2011, and March 1, 2011, the parties
and their counsel signed handwritten Memorandum Entries. Both entries contained the
following typewritten language: “This entry is to be filed but not journalized. This entry is
to be effective until such time that a formal entry had been filed and journalized not
exceeding 30 days.” No “formal” entries were timely filed and journalized. Appellant, on
June 16, 2011, then filed a “Notice to the Court” stating that she withdrew her consent to
the Memorandum Entries.
{¶16} Appellee, on June 27, 2011, then filed a “Motion to Approve Judgment
Entry/Shared Parenting Decree and Shared Parenting Plan Being Submitted by the Fairfield County App. Case No. 11-CA-41 6
Attorney for the Plaintiff Herewith.” On June 28, 2011, a Judgment Entry/Shared
Parenting Decree was filed. The Judgment Entry clearly stated that appellant had
withdrawn her consent to the Memorandum Entries and opposed the appellee’s
proposed shared parenting plan.
{¶17} Where both parties agree on the terms of the Agreed Entry in a divorce
action, we find that the Agreed Entry is essentially a contract between the parties. See
Klug v. Klug, 2nd Dist. No. 19369, 2003-Ohio-3042, at ¶ 13 citing In re Adams, 45 Ohio
St.3d 219, 220, 543 N.E.2d 797 (1989). Accordingly, we also find that contract rules of
interpretation apply in this scenario. Id. When the terms included in an existing contract
are clear and unambiguous, a court cannot create a new contract by finding an intent
not expressed in the clear and unambiguous language of the written contract. Alexander
v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146, 150 (1978).
{¶18} In the case sub judice, the Memorandum Entries, which were not signed
by the trial court but were signed by the parties and their counsel, clearly stated that
they were effective “until such time that a formal entry had been filed and journalized not
exceeding 30 days.” Prior to the time that any “formal” entries were filed and
journalized, appellant withdrew her consent.
{¶19} Appellee, in support of his argument that, even though the final entries
were not journalized within thirty (30) days in accordance with the above language, the
Memorandum Entries are not null and void cites to Fairfield Local Rule 21.0. Such rule
provides, in relevant part, as follows:
{¶20} “21.2 Procedure – Mediation. Where the parties have reached an
agreement through mediation, the written agreement must be signed by the parties and Fairfield County App. Case No. 11-CA-41 7
counsel (if applicable) and submitted to the Court. If the Court approves the agreement
it shall be filed with the clerk’s office and placed in the case file.
{¶21} “21.3 Entry requirements. Except as provided in Local Rule 22.5, within
30 days counsel or non-represented parties shall prepare and submit to the Court an
entry incorporating the terms of the memorandum entry or mediation agreement.
{¶22} “21.4 Failure to submit entry. If counsel and/or parties fail to submit an
entry within the required time period, the Court may dismiss the matter.”
{¶23} However, in the case sub judice, the trial court did not dismiss the matter
after an entry incorporating the terms of the Memorandum Entries was not filed within
thirty (30) days. Rather, the trial court signed the June 28, 2011, Judgment Entry with
full knowledge that appellant previously had withdrawn her consent to the Memorandum
Entries and opposed appellee’s proposed shared parenting plan. We find, on such
basis, that the trial court erred in signing the June 28, 2011, Judgment Entry/Shared
Parenting Decree.
{¶24} Appellant’s first assignment of error is, therefore, sustained.
II
{¶25} Appellant, in her second assignment of error, argues that the trial court
erred in denying her motion for written findings of fact and conclusions of law pursuant
to Civ. R. 52.
{¶26} Based on our disposition of appellant’s first assignment of error,
appellant’s second assignment of error is moot. Fairfield County App. Case No. 11-CA-41 8
{¶27} Accordingly, the judgment of the Fairfield County Court of Common Pleas,
Domestic Relations Division is reversed and this matter is remanded for further
proceedings.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
JUDGES
JAE/d0308 [Cite as Jepsen v. Hoskisson, 2012-Ohio-2954.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RON JEPSEN : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : KARRIE HOSKISSON : : Defendant-Appellant : CASE NO. 11-CA-41
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Fairfield County Court of Common Pleas, Domestic Relations Division,
is reversed and this matter is remanded to the trial court for further proceedings. Costs
assessed to appellee.
_________________________________