Perry v. Perry

2011 Ohio 3514

• Court: Ohio Court of Appeals
• Decided: July 14, 2011
• Docket: 2011-CA-00003
• Status: Published

Opinion

[Cite as Perry v. Perry, 2011-Ohio-3514.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: ANGELA PERRY : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellant : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2011-CA-00003 DOUG PERRY : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court of Common Pleas, Domestic Relations Division, Case No. 10DR0166

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 14, 2011

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JOEL R. ROVITO BRIAN C. BURRIER 7538 Slate Ridge Blvd. 400 South Fifth Street, Ste. 302 Reynoldsburg, OH 43068 Columbus, OH 43215 [Cite as Perry v. Perry, 2011-Ohio-3514.]

Gwin, P.J.

{¶1} Plaintiff-appellant Angela Perry appeals a judgment of the Court of

Common Pleas, Domestic Relations Division, of Licking County, Ohio, which entered a

divorce decree incorporating a separation agreement and a shared parenting plan

between appellant and defendant-appellee Doug Perry. Appellant assigns a single

error to the trial court:

{¶2} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN ACCEPTING THE

MEMORANDUM OF AGREEMENT AND INCORPORATING IT INTO A FINAL

DECREE OF DIVORCE AS THAT DOCUMENT WAS SIGNED BY PLAINTIFF-

APPELLANT UNDER DURESS, UNDUE INFLUENCE AND COERCION.”

{¶3} The record before us contains a document captioned “Settlement

Memorandum” filed on November 8, 2010. It states in pertinent part: “The parties agree

to terminate their marriage based upon the attached agreement and shared parenting

plan”. Both parties and their counsel signed the memorandum, and attached to the

memorandum are signed copies of a separation agreement and a shared parenting

plan. However, the agreements appear to be preliminary drafts of the agreements with

portions of the printed documents crossed out and handwritten changes made and

initialed by the parties. The settlement memorandum states appellee’s attorney would

prepare the final paperwork.

{¶4} Thereafter, on December 7, 2010, the trial court entered a final decree of

divorce, attaching final renderings of the separation agreement and shared parenting

agreement which were re-typed to reflect the changes the parties had made in the Licking County, Case No. 2011-CA-00003 3

original documents. However, only appellee signed the revised documents and decree

and the line for appellant’s signature states “submitted but not returned”.

{¶5} Appellant asserts she signed the original agreements under duress after

negotiating with appellee out of the presence of the parties’ counsel. The record is silent

on this matter. It does not appear appellant ever informed the court that she did not

agree to be bound by the documents or had been under duress when she signed them.

The court had before it a memorandum and rough drafts signed by appellant. The

absence of appellant’s signature on the final drafts of the two agreements, taken alone,

did not give the court notice that she had not willingly signed the earlier documents.

{¶6} “A reviewing court cannot add matter to the record before it, which was not

a part of the trial court's proceedings, and then decide the appeal on the basis of the

new matter.” State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500,

paragraph one of the syllabus. See, also, State v. Coleman (1999), 85 Ohio St.3d 129,

133, 707 N.E.2d 476, 483. Issues not raised before the trial court cannot be raised for

the first time on appeal. Estate of Brewer v. Black, Stark App. No. 2010-CA-00096,

2010-Ohio-3584 at paragraph 32, citing Holman v. Grandview Hospital & Medical

Center (1987), 37 Ohio App. 3d 151, 157, 524 N.E. 2d 903.

{¶7} The assignment of error is overruled. Licking County, Case No. 2011-CA-00003 4

{¶8} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, of Licking County, Ohio, is affirmed.

By Gwin, P. J.,

Wise, J., and

Edwards, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. JULIE A. EDWARDS

WSG:clw 0629 [Cite as Perry v. Perry, 2011-Ohio-3514.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

ANGELA PERRY : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : DOUG PERRY : : : Defendant-Appellee : CASE NO. 2011-CA-00003

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, Domestic Relations Division, of Licking County, Ohio, is

affirmed. Costs to appellant.