[Cite as Tackett v. Gunnels, 2023-Ohio-3611.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
MICHELLE TACKETT, :
Plaintiff-Appellee, : Case No. 22CA9
v. :
RYAN GUNNELS, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
James R. Kingsley, Circleville, Ohio, for appellant.
Michelle Tackett, Chillicothe, Ohio, pro se appellee. ________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:9-28-23 ABELE, J.
{¶1} This is an appeal from a Ross County Common Pleas
Court judgment that adopted a second-amended-shared-parenting
plan between Michelle Tackett, plaintiff below and appellee
herein, and Ryan Gunnels, defendant below and appellant herein.
Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO HOLD A HEARING ON THE TERMS OF THE AGREEMENT AND INSTEAD DID IT BY SUBMISSION.” SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT JOURNALIZED THE PURPORTED IN-COURT SETTLEMENT.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO FIND NO MEETING OF THE MINDS AND REMANDING THE CASE FOR HEARING ON ALL PENDING MOTIONS.”
{¶2} The present appeal stems from a long and contentious
shared-parenting battle between the divorced parents of two
children. The parties’ first shared-parenting plan was entered
as part of their 2014 Florida divorce proceedings. Later, the
parties relocated to Ohio, and, in August 2017, the Pike County
Common Pleas Court entered an amended-shared-parenting plan.
{¶3} Subsequently, numerous disputes ensued and the parties
filed multiple motions seeking to enforce, or to challenge, the
amended-shared-parenting plan. On June 12, 2020, the trial
court scheduled all pending motions for a hearing to be held in
August 2020. In the meantime, appellant filed another contempt
motion. Also, appellee filed a notice that she intended to
relocate to Chillicothe. Thereafter, the parties agreed to
transfer the case to Ross County and the parties again filing a 3 ROSS, 22CA9
parade of motions over the shared parenting of their two
children.
{¶4} On August 18, 2021, the magistrate held a final
hearing to resolve “all pending motions.” At the start of the
hearing, appellant’s counsel explained that the parties had
spent more than six hours negotiating and had finally reached an
agreement on all pending matters. Counsel then recited the
terms of the agreement.
{¶5} Counsel first indicated that rather than a review of
multiple shared-parenting plans, he planned “to merge everything
into one document,” to be called the second-amended-shared-
parenting plan. Counsel explained that to create this second-
amended-shared-parenting plan, he would “take the original
shared parenting plan from Judge Deering,” (i.e., the Pike
County amended-shared-parenting plan) and “copy it as close as”
possible. He recognized, however, that some provisions “are now
obsolete,” so he would delete any obsolete provisions, like one
provision that referenced a child turning “eight years of age,”
which had already occurred.
{¶6} Counsel further indicated that the parties’ “major
agreement” relates to “parenting time and scheduling.” He
reported that the parties agreed “that the original agreement of
the part[ies] is fifty-fifty as closely as possible every month 4 ROSS, 22CA9
except they are now going to trigger, uh, every other weekend,
uh, from Friday at six to Sunday at six.” Counsel explained
that appellant’s work schedule may make him late to pick up the
children, so the parties agreed he would have until Friday at
8:00 p.m. to pick up the children. If he is unable to pick up
the children by 8:00 p.m., then “he forfeits that evening” and
his time begins Saturday morning at 9:00. The parties also
agreed to “a new clause” for appellant’s “compensatory
visitation” if he has conflicts during his parenting-time
weekends. Counsel explained that the parties agreed that
appellant would “be entitled to compensatory visitation” for the
time lost and appellant would be able to exercise that
compensatory visitation “during the week within the next ninety
days.”
{¶7} Counsel also stated that the parties agreed “to look
at and incorporate part of the Chillicothe companionship
schedule” with a couple of modifications. First, for Christmas,
the parties agreed to divide Christmas break into two phases.
The first phase would begin the first day that school releases
for the holiday and extend until 12:00 p.m. on December 25. The
second phase would begin at 12:00 p.m. on December 25 and extend
until the day before school resumes. The parties agreed to
alternate these two time periods each year. 5 ROSS, 22CA9
{¶8} For Thanksgiving, the parties agreed that parenting
time would begin the day school releases for the holiday and
continue through the day that school resumes. They also agreed
to alternate the holiday each year. Counsel indicated that the
“old schedule[]” is “going to remain in effect for the other
holidays” and for the children’s birthdays.
{¶9} Appellee’s counsel then offered some clarifications.
With regard to appellant’s “compensatory time,” the parties
agreed that appellant would not exercise “it during [appellee’s]
weekend time.” She further related that the parties agreed that
the holidays would be “the standard schedule” except for
Thanksgiving and Christmas. Counsel stated that the parties
agreed to use “the old rule for the child[ren]’s birthday and
the old rule for Mother’s Day and Father’s Day[.] Aside from
that,” the parties agreed to use “the standard schedule, which
is going to just rotate.” Appellant’s counsel stated that he
“concur[red].”
{¶10} After the parties’ attorneys finished reciting the
agreement on the record, appellee’s counsel asked appellee if
she understood (1) the changes the parties agreed to make and
(2) the provisions the parties did not agree to amend would
remain the same. Appellee responded affirmatively. She further 6 ROSS, 22CA9
confirmed that the changes that the parties agreed to make are
in the children’s best interests.
{¶11} Appellant’s counsel asked appellant if he (1)
understood “each and every one of the, uh, settlements that we,
uh, terms that we have entered into,” (2) thought the terms “are
fair, just and reasonable,” and (3) wanted the court to adopt
the parties’ agreement. Appellant confirmed his understanding.
{¶12} At that juncture, the magistrate stated that “the
court will approve and adopt, uh, the agreement that you reached
here today and the – the terms of which were recited into our
record, uh, so your agreement will now become a court order.”
At the conclusion of the hearing, appellant’s counsel asked
whether they could do “an agreed judgment entry,” but the
magistrate stated they needed “a separate magistrate’s
decision.” Appellant’s counsel said he would “prepare the
necessary documents,” i.e., “the magistrate’s decision, judgment
entry and the * * * second amended shared parenting plan.”
{¶13} Not surprisingly, events did not unfold quite as
predicted. Instead, on September 7, 2021 appellee filed a
“second amended shared parenting plan.” In an attached filing,
appellee’s counsel stated that she sent the plan to appellant’s
counsel on August 20, 2021, but counsel refused to respond and
instead submitted his own plan. 7 ROSS, 22CA9
{¶14} On November 19, 2021, appellant filed a motion to
enforce the August 18, 2021 in-court settlement that counsel
read into the record. Appellant’s counsel asserted that he sent
a “Third Amended Shared Parenting Plan” to appellee’s counsel on
August 31, 2021, and, rather than a response, she filed her own
plan.
{¶15} On November 19, 2021, the trial court held a
telephonic status conference with the parties. The court noted
that the parties previously had read into the record an agreed
settlement, but “for some reason cannot now reach consensus on
what the Amended Shared Parenting Plan should say, or even who
should prepare it.” The court recognized that appellant filed a
motion to enforce this settlement agreement and thus ordered the
parties to submit “a copy of their written memorandum of the
settlement agreement within 7 days” and “a proposed amended
shared parenting plan.” The court stated it then would review
“the parties’ statement on the record of their agreement” and
“issue a decision as to the terms of the settlement.”
{¶16} On December 13, 2021, the trial court granted
appellant’s motion to enforce the settlement agreement. The
court first noted that the parties filed a written “Memorandum
Entry.” The trial court, however, found that it contains
“nothing more than the notes of counsel.” The court thus found 8 ROSS, 22CA9
“that the agreement read into the record is the entirety of the
parties’ agreement.”
{¶17} The court found that the parties agreed to name the
new shared parenting plan the “Second Amended Shared Parenting
Plan” and this plan would “copy and retain the terms of the
[Pike County] Amended Shared Parenting Plan,” except as
otherwise stated during counsels’ in-court recitation of the
parties’ settlement agreement. The court noted that
subsequently both parties submitted shared-parenting plans, but
found that neither one comported with their in-court settlement
agreement. Nonetheless, the court found that appellee’s plan
“most closely adheres to the agreed terms,” and thus ordered
appellee’s counsel to prepare a new draft of the second-amended-
shared-parenting plan with the following revisions:
1. * * * * 2. Save and excepting the specifically amended terms agreed upon by the parties, the language and terms of the plan shall be the same as (i.e. [sic] identical to) that contained in the prior Amended Plan for Shared Parenting. 3. The language submitted by Plaintiff for the new Time Sharing Schedule, which Plaintiff has submitted as Section VI.A., shall be amended as follows: a. It shall indicate that Father will send his Awarded Flight Schedule to Mother ‘no later than the 22nd of each month...’ b. It shall indicate that any compensatory time taken by Father ‘will be taken during the weekdays only, and within 90 days from the date of Father’s missed weekend parenting time.’ * * * * 9 ROSS, 22CA9
4. The Holiday Schedule, which Plaintiff has submitted as Section IV.B., shall be amended as follows: a. The Christmas schedule shall be amended to note that the first half shall last ‘until 12:00 p.m. on Christmas Day’ and the second half ‘commences 12:00 p.m. Christmas Day, December 25th until the day before school resumes at 6pm [sic].’ b. The provisions regarding Children’s Birthdays * * * and Father’s Day/Mother’s Day * * * were retained by agreement and must be included. c. The provision regarding parents’ birthdays was not retained and must be removed. d. The provision regarding alternating ‘spring break...and any other recognized national holiday’ shall be removed. The language regarding division of Halloween and trick-or-treat shall be retained.
{¶18} The trial court noted that the “Court’s Standard
Companionship Schedule” would govern the parents’ birthdays,
spring break, and other holidays not specifically included in
the parties’ in-court settlement agreement. The court ordered
appellee’s counsel to prepare a magistrate’s decision and agreed
judgment entry incorporating the agreed-upon second-amended-
shared-parenting plan. The court also instructed the parties
and their counsel to sign the second-amended-shared-parenting
plan, the magistrate’s decision, and the agreed judgment entry
before submitting the documents to the court.
{¶19} Once again, however, events did not unfold as the
trial court directed. Instead, on February 11, 2022 appellee’s
counsel filed a notice of filing for the second-amended-shared-
parenting plan. She asserted that she sent the draft to 10 ROSS, 22CA9
appellant’s counsel, but counsel did not respond. Appellee’s
counsel indicated that she happened to see appellant’s counsel
and when asked about the parenting plan, appellant’s counsel
said he did not agree with the document and intended to object.
Appellee’s counsel asked counsel to respond with a list of his
objections, but he apparently did not, nor did he file a
response to appellee’s February 11, 2022 filing.
{¶20} On March 1, 2022, the magistrate recommended that the
court adopt the second-amended-shared-parenting plan. On that
same date, the trial court adopted the magistrate’s decision and
the second-amended-shared-parenting plan. This appeal followed.
I
{¶21} In his first assignment of error, appellant asserts
that the trial court erred by failing to hold a hearing
regarding his motion to enforce the in-court settlement
agreement. Appellant asserts that the court should have held a
hearing to resolve the parties’ disagreements as documented in
their competing amended-shared-parenting plans, rather than
resolving the matter upon the parties’ written submissions. He
contends that if the trial court had concluded an evidentiary
hearing, the court would have adopted an amended-shared-
parenting agreement that allocated the federal-tax-dependency
exemption for both children to appellant. 11 ROSS, 22CA9
{¶22} If “parties dispute the meaning or existence of a
settlement agreement, a court may not force an agreement upon
the parties.” Rulli v. Fan Co., 79 Ohio St.3d 374, 377, 683
N.E.2d 337 (1997). Forcing an agreement upon the parties “would
be to deny the parties’ right to control the litigation, and to
implicitly adopt * * * the interpretation of one party, rather
than enter judgment based upon a mutual agreement.” Id.
Consequently, when “the meaning of terms of a settlement
agreement is disputed, or where there is a dispute that contests
the existence of a settlement agreement, a trial court must
conduct an evidentiary hearing prior to entering judgment.” Id.
at syllabus. However, “[i]n the absence of such a factual
dispute, a court is not required to conduct such an evidentiary
hearing.” Id. at 377. We hasten to add, however, that a party
may waive the right to an evidentiary hearing if the party fails
to request a hearing. In re K.K., 4th Dist. Highland No. 21CA1,
2021-Ohio-3338, ¶ 40-41; Aceste v. Stryker Corp., 6th Dist.
Lucas No. L-19-1166, 2020-Ohio-4938, ¶ 48, citing Wilson v.
Wilson, 2018-Ohio-3820, 111 N.E.3d 110, ¶ 21 (6th Dist.) (“If a
trial court does not hold the required hearing, an appellant
nonetheless waives this error for purposes of appellate review
where ‘[t]he record shows no indication that appellant requested
an evidentiary hearing or objected to the nature of the 12 ROSS, 22CA9
proceedings.’”); Brahm v. DHSC, LLC, 2019-Ohio-766, 132 N.E.3d
266, ¶ 58 (5th Dist.). Moreover, under the invited-error
doctrine, litigants may not “take advantage of an error which
[they themselves] invited or induced.” State v. Garrett, ___
Ohio St.3d ___, 2022-Ohio-4218, ___ N.E.3d ___, ¶ 20, quoting
Hal Artz Lincoln–Mercury, Inc. v. Ford Motor Co., Lincoln–
Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph
one of the syllabus. For example, a party invites error “‘when
a party has asked the court to take some action later claimed to
be erroneous, or affirmatively consented to a procedure the
trial judge proposed.’” Id., quoting State v. Campbell, 90 Ohio
St.3d 320, 324, 738 N.E.2d 1178 (2000).
{¶23} In the case sub judice, it appears that appellant did
not affirmatively request the trial court to conduct an
evidentiary hearing regarding the terms of the parties’
agreement. Instead, the motion to enforce the in-court
settlement agreement states that “memorandums of counsel [should
be] submitted as to the accuracy of their submissions.”
Moreover, when the court ordered the parties to submit their
copies of the written memorandums and proposed amended-shared-
parenting plans, it stated it would review the documents and
then “issue a decision as to the terms of the settlement.”
Appellant did not object to this procedure, but rather requested 13 ROSS, 22CA9
and complied with it. Under these circumstances, we believe
that appellant waived the right to argue on appeal that the
trial court should have held an evidentiary hearing.
{¶24} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II
{¶25} In his second assignment of error, appellant asserts
that the trial court erred by adopting the second-amended-
shared-parenting plan because the plan does not reflect the
terms of the parties’ in-court settlement.
A
{¶26} Before we consider appellant’s assignments of error,
we first observe that appellant did not object to the
magistrate’s decision that recommended the court adopt the
second-amended-shared-parenting plan. Civ.R. 53(D)(3)(b)(iv)
provides that
a party shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).
“In essence, the rule is based on the principle that a trial
court should have a chance to correct or avoid a mistake before 14 ROSS, 22CA9
its decision is subject to scrutiny by a reviewing court.”
Cunningham v. Cunningham, 4th Dist. Scioto No. 01CA2810, 2002-
Ohio-4094, ¶ 8. If a party fails to comply with Civ.R.
53(D)(3)(b)(iv), appellate review is limited to plain error.
Civ.R. 53(D)(3)(b)(iv); Barnett v. Barnett, 4th Dist. Highland
No. 04CA13, 2008-Ohio-3415, ¶ 17; see also State ex rel. Target
Auto Repair v. Morales, 168 Ohio St.3d 88, 2022-Ohio-2062, 195
N.E.3d 1027, ¶ 15; State ex rel. Booher v. Honda of Am. Mfg., 88
Ohio St.3d 52, 53–54, 723 N.E.2d 571 (2000).
{¶27} In the case sub judice, appellant did not object to
the magistrate’s decision. However, the magistrate’s decision
did not advise appellant that a party cannot assign as error the
court’s adoption of any factual finding or legal conclusion
unless the party timely and specifically objected to that
finding or conclusion. See Civ.R. 53(D)(3)(a)(iii). The rule
requires a magistrate’s decision to include conspicuous language
to inform parties of this process.1 Picciano v. Lowers, 4th
1 Civ.R. 53(D)(3)(a)(iii) states:
Form; Filing, and Service of Magistrate’s Decision. A magistrate’s decision shall be in writing, identified as a magistrate’s decision in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys no later than three days after the decision is filed. A magistrate’s decision shall indicate conspicuously that a party shall not 15 ROSS, 22CA9
Dist. Washington No. 08CA38, 2009-Ohio-3780, ¶ 17; Rockey v.
Rockey, 4th Dist. Highland No. 08CA4, 2008-Ohio-6525, ¶ 9. If a
magistrate’s decision does not comply with Civ.R.
53(D)(3)(a)(iii), then a party may assign as error the trial
court’s adoption of the magistrate’s findings of fact and
conclusions of law. Rockey at ¶ 12; see also D.A.N. Joint
Venture III, L.P. v. Armstrong, 11th Dist. Lake No.2006-L-89,
2007-Ohio-898, ¶ 22. Consequently, appellant’s failure to
object to the magistrate’s decision in the case at bar does not
preclude him from challenging the trial court’s decision
adopting the magistrate’s decision and the second-amended-
shared-parenting plan.2
{¶28} We question, however, whether appellant’s failure to
respond to or to object to appellee’s February 11, 2022 filing
assign as error on appeal the court’s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
2 We note that during the August 18, 2021 hearing, the parties discussed the 14-day rule for objecting to a magistrate’s decision. The transcript suggests that they may have intended to “waive the fourteen-day objection period” and to document this waiver in the magistrate’s decision. However, the magistrate’s decision does not, in fact, contain this waiver. 16 ROSS, 22CA9
that contained notice of the second-amended-shared-parenting
plan and the difficulty encountered when seeking appellant’s
counsel’s approval forfeited any error with the court’s
subsequent adoption of that plan. Appellant could have
responded to appellee’s filing by setting forth objections he
now raises on appeal so that the trial court first could have
considered these issues and corrected any arguable errors. But
he did not. Thus, a few weeks later the court adopted the
second-amended-shared-parenting plan that appellee submitted.
In light of these circumstances, we believe that appellant
forfeited the right to challenge on appeal the trial court’s
decision to adopt the second-amended-shared-parenting plan. We
thus limit our review of the court’s decision to adopt the
second-amended-shared-parenting plan for plain error.
{¶29} In order for the plain-error doctrine to apply, a
party who claims error must establish that (1) “‘an error, i.e.,
a deviation from a legal rule’” occurred, (2) the error was “‘an
“obvious” defect in the trial proceedings,’” and (3) this
obvious error affected substantial rights, i.e., the error
“‘must have affected the outcome of the trial.’” State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22,
quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240
(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436 17 ROSS, 22CA9
N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious and
prejudicial although neither objected to nor affirmatively
waived which, if permitted, would have a material adverse affect
on the character and public confidence in judicial
proceedings.”). For an error to be “plain” or “obvious,” the
error must be plain “under current law” “at the time of
appellate consideration.” Johnson v. United States, 520 U.S.
461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord
Barnes, 94 Ohio St.3d at 27; State v. G.C., 10th Dist. Franklin
No. 15AP-536, 2016-Ohio-717, ¶ 14. However, the plain-error
doctrine is not readily invoked in civil cases. Instead, an
appellate court “must proceed with the utmost caution” when
applying the plain-error doctrine in civil cases. Goldfuss v.
Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The
Ohio Supreme Court has set a “very high standard” for invoking
the plain-error doctrine in a civil case. Perez v. Falls
Financial, Inc., 87 Ohio St.3d 371, 721 N.E.2d 47 (2000). Thus,
“the doctrine is sharply limited to the extremely rare case
involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying
judicial process itself.” Goldfuss, 79 Ohio St.3d at 122; 18 ROSS, 22CA9
accord Jones v. Cleveland Clinic Found., 161 Ohio St.3d 337,
2020-Ohio-3780, 163 N.E.3d 501, ¶ 24; Gable v. Gates Mills, 103
Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 43.
Moreover, appellate courts “‘should be hesitant to decide
[forfeited errors] for the reason that justice is far better
served when it has the benefit of briefing, arguing, and lower
court consideration before making a final determination.’”
Risner at ¶ 28, quoting Sizemore v. Smith, 6 Ohio St.3d 330,
332, 453 N.E.2d 632 (1983), fn. 2; accord Mark v. Mellott Mfg.
Co., Inc., 106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th
Dist.1995) (“Litigants must not be permitted to hold their
arguments in reserve for appeal, thus evading the trial court
process.”). Additionally, “[t]he plain error doctrine should
never be applied to reverse a civil judgment * * * to allow
litigation of issues which could easily have been raised and
determined” in the trial court. Goldfuss, 79 Ohio St.3d at 122.
B
{¶30} Settlement agreements are highly favored as a means of
resolving disputes. Barstow v. O.U. Real Estate, III, Inc., 4th
Dist. Athens No. 01CA49, 2002-Ohio-4989, ¶ 37; State ex rel.
Wright v. Weyandt, 50 Ohio St.2d 194, 197, 4 O.O.3d 383, 363
N.E.2d 1387 (1977). The essential elements of a settlement
agreement, like any contract, “‘include an offer, acceptance, 19 ROSS, 22CA9
contractual capacity, consideration (the bargained for legal
benefit and/or detriment), a manifestation of mutual assent and
legality of object and of consideration.’” Kostelnik v. Helper,
96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting
Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414
(N.D. Ohio 1976). “‘To constitute a valid settlement agreement,
the terms of the agreement must be reasonably certain and
clear.’” Id. at ¶ 17, quoting Rulli, 79 Ohio St.3d at 376. A
trial court possesses full authority to enforce a valid
settlement agreement. Kostelnik at ¶ 16; Episcopal Retirement
Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio
St.3d 366, 369, 575 N.E.2d 134; Mack v. Polson Rubber Co., 14
Ohio St.3d 34, 36, 470 N.E.2d 902 (1984).
{¶31} Although settlement agreements may be either written
or oral, written agreements are “preferable.” Kostelnik at ¶
15; Huffman v. Huffman, 4th Dist. Washington No. 21CA13, 2022-
Ohio-2020, ¶ 11; Mathews v. E. Pike Loc. Sch. Dist. Bd. of Edn.,
4th Dist. Pike No. 12CA831, 2013-Ohio-4437, ¶ 22, citing
Pawlowski v. Pawlowski, 83 Ohio App.3d 794, 798-799, 615 N.E.2d
1071 (10th Dist. 1992). Oral settlement agreements nevertheless
are enforceable if the record demonstrates “sufficient
particularity to form a binding contract.” Kostelnik at ¶ 15,
citing Spercel v. Sterling Industries, Inc., 31 Ohio St.2d 36, 20 ROSS, 22CA9
39, 285 N.E.2d 324 (1972). “Terms of an oral contract may be
determined from ‘words, deeds, acts, and silence of the
parties.’” Id., quoting Rutledge v. Hoffman, 81 Ohio App. 85,
75 N.E.2d 608, paragraph one of the syllabus (1947).
{¶32} Parties also may enter into an in-court settlement
agreement. “An in-court agreement is one that occurs ‘during
the course of a hearing’ and in the ‘presence of the court.’”
Richmond v. Evans, 8th Dist. Cuyahoga No. 101269, 2015-Ohio-870,
¶ 13, citing Kolar v. Shapiro, 11th Dist. Lake No. 2007-L-148,
2008-Ohio-2504, quoting Booth v. Booth, 11th Dist. Lake No.2002-
P-0099, 2004-Ohio-524. When parties voluntarily enter into an
oral settlement agreement in the presence of the court, the
agreement constitutes an enforceable and binding contract.
Spercel at paragraphs one and two of the syllabus; Aristech
Chem. Corp. v. Carboline Co., 86 Ohio App.3d 251, 254-255, 620
N.E.2d 258 (4th Dist.1993), citing Bolen v. Young, 8 Ohio App.3d
36, 37, 455 N.E.2d 1316 (10th Dist. 1982). Reading the terms of
an in-court settlement agreement into the record allows a trial
court to “‘approve a journal entry which accurately reflects the
terms of the agreement, adopting the agreement as [the court’s]
judgment.’” Richmond at ¶ 33, quoting Bolen, 8 Ohio App.3d at
37, citing Holland v. Holland, 25 Ohio App.2d 98, 266 N.E.2d 580
(10th Dist.1970); see also Gulling v. Gulling, 70 Ohio App.3d 21 ROSS, 22CA9
410, 412, 591 N.E.2d 349 (9th Dist.1990) (“[a]n in-court
settlement agreement may be adopted by the court, incorporated
into judgment entry, and enforced even in the absence of written
approval by one party.”).
{¶33} Because a valid settlement agreement constitutes a
binding contract, a party cannot unilaterally repudiate the
agreement. Spercel, 31 Ohio St.2d at 39-40; Cochenour v.
Cochenour, 4th Dist. Ross No. 13CA3420, 2014-Ohio-3128, ¶ 28.
“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.”
Spercel, 31 Ohio St.2d at 40. Consequently, 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.’” Barstow v. O.U. Real Estate, III, Inc., 4th
Dist. Athens No. 01CA49, ¶ 38. Thus, “[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.” Spercel at paragraph two of the syllabus.
Otherwise, “a trial court may properly sign a journal entry
reflecting the settlement agreement.” Id.
{¶34} Furthermore, “[i]f the record clearly reflects that
the parties intended to include a term in their settlement 22 ROSS, 22CA9
agreement, the trial court does not have the discretion to adopt
a judgment entry that unilaterally excludes or adds terms in a
manner that would result in a settlement agreement that is
inconsistent with the parties’ agreement.” Santomauro v. Sumss
Property Mgt., LLC, 2019-Ohio-4335, 134 N.E.3d 1250, ¶ 55 (9th
Dist.), citing Cuyahoga Falls v. Wells, 9th Dist. Summit No.
19959, 2001 WL 81260, *3 (Jan. 31, 2001). “It is reversible
error for a trial court to adopt a judgment entry that fails to
accurately reflect the entire settlement agreement.” Id. at ¶
45, citing Schmid v. Rutter, 9th Dist. Wayne No. 2505, 1989 WL
157218, *2 (Dec. 27, 1989).
{¶35} In the case at bar, appellant asserts that four parts
of the second-amended-shared-parenting plan exclude or add terms
that are inconsistent with the parties’ in-court settlement
agreement.
{¶36} First, appellant claims that the trial court erred
when it found that the parties had not agreed to incorporate
into the new shared-parenting plan (1) the original Florida
shared-parenting plan, and (2) the Pike County amended-shared-
parenting plan. He asserts that counsel “specifically stated on
the record” that “the previous agreements were going to be
merged into the latest” shared-parenting plan. 23 ROSS, 22CA9
{¶37} To support this argument, appellant cites to pages 4
and 18 of the hearing transcript but does not identify which
statements purportedly contain this alleged agreement.
Nonetheless, we have found nothing on those two pages that
states the parties agreed to incorporate both the Florida and
the Pike County plans into the new shared-parenting plan. On
page four, appellant’s counsel stated he would “take the
original shared parenting plan from Judge Deering here [i.e.,
the Pike County plan] and I’m going to copy it as close as I
can.” On page 18, appellant’s counsel asked appellant if he
understood that “we have to put three things together” and then
listed those three things as “the old shared parenting plan,”
“some of the new, uh, compensatory visitation or the * * * local
schedule and the * * * amendments.” Counsel continued to
explain that “we [will] put all those together and that’s going
to be a whole new scorecard from here on in.” None of these
statements suggest that “the old shared parenting plan” meant
the Florida plan. Moreover, throughout the hearing the parties
referred to the Pike County amended-shared-parenting plan as the
“the old shared parenting plan.”
{¶38} Thus, we do not believe that the record supports
appellant’s argument that the parties agreed to merge both the
Florida shared-parenting plan and the Pike County amended- 24 ROSS, 22CA9
shared-parenting plan into the second-amended-shared-parenting
plan. Instead, counsel stated that he would use the Pike County
amended-shared-parenting plan to help draft the new plan, not
that he would use the Pike County and the Florida plan to draft
the new plan. Moreover, appellant does not point to anything in
the record to suggest that appellee intended to incorporate the
Florida plan into the new plan. We, therefore, find nothing in
the record to support appellant’s claim that the parties agreed
to merge the two prior shared-parenting plans into the second-
amended-shared-parenting plan. Thus, the trial court did not
err by excluding the Florida shared-parenting plan’s provisions
when it adopted the second-amended-shared-parenting plan.
{¶39} Next, appellant asserts that the trial court erred by
adopting the plan because it “contained provisions outside of
those contained in previous shared parenting plans and which
were not agreed to.” In particular, appellant contends that he
did not agree to (a) include a provision that he would give
appellee 24 hours’ notice if he is unable to pick up the
children at his designated time, (b) delete a provision that
allowed him to have the children on his birthday, and (c) omit a
provision to allow tracking devices on the children’s cell
phones. Appellant points out that he is a pilot, and sometimes 25 ROSS, 22CA9
his flight is delayed, so he would not always be able to provide
appellee 24 hours’ notice. He further asserts that the previous
plans stated that he would have the children every year on his
birthday, but under the new plan the court stated that the
parties would follow the local rule. Appellant also supposedly
requested that tracking devices be placed on the children’s cell
phones.
{¶40} With respect to the 24-hour-notice provision, the
agreement states that “[i]f [appellant] is unable to pick up the
children [on] time, he must notify [appellee] at least twenty-
four (24) hours prior.” The in-court agreement indicates that
appellant consented to notify appellee if he would be late, but
it is silent regarding the amount of notice that he agreed to
provide. Therefore, we agree with appellant that the parties did
not agree that appellant would provide appellee with 24 hours’
notice if he would be late picking up the children.
{¶41} However, we do not believe that the trial court
plainly erred by including this provision in the second-amended-
shared-parenting plan. Instead, the plan also includes a
provision that states, “[t]he parents shall attempt to
cooperatively resolve any disputes which may arise over the
terms of the parenting plan.” If they are unable to agree, the 26 ROSS, 22CA9
plan states that they shall attempt “mediation or other
resolution methods * * * prior to filing a court action.” In
view of this outlet to resolve disputes, we do not believe that
the trial court obviously erred by including the 24-hour-notice
provision in the second-amended-shared-parenting plan.
{¶42} Regarding the parents’ birthdays, the record of the
parties’ in-court agreement does not indicate that they
discussed parenting time on the parents’ birthdays. They did,
however, agree to follow the local companionship schedule except
for the Thanksgiving and Christmas holidays. The record thus
does not contain a specific agreement regarding the parents’
birthdays.
{¶43} Arguably, however, because the parties agreed to
retain the provisions from the Pike County amended-shared-
parenting plan that they did not specifically discuss during the
in-court settlement agreement, they agreed to retain the
provision regarding the parents’ birthdays. Nonetheless, we
again note that the parties have an outlet to resolve these
types of issues. Thus, we do not believe that the trial court
obviously erred by excluding the provision that granted the
parties parenting time on their birthdays.
c 27 ROSS, 22CA9
{¶44} With respect to tracking devices on the children’s
cell phones, the parties did not read anything into the record
regarding tracking devices. Therefore, although many positive
benefits arise from tracking devices for mobile phones of minor
children, we do not agree with appellant that the trial court
erred by excluding this type of provision from the second-
amended-shared-parenting plan.
{¶45} Next, appellant contends that the trial court erred by
deleting the spring-break provision and by making it subject to
the local rules, which states that “spring break commences 6:00
p.m. the Friday school is out to 7:00 p.m. the day before school
commences.” Appellant asserts that the children’s spring break
begins on a Thursday and therefore, spring-break-parenting time
should begin on Wednesday.
{¶46} Our review reveals that the parties did not recite
into the record any specific agreements regarding spring break.
Instead, they stated they would follow the local companionship
schedule, except as otherwise noted. Thus, the record does not
contain any evidence that the parties agreed upon a specific
spring-break schedule. Consequently, the trial court did not
err in this regard.
4 28 ROSS, 22CA9
{¶47} Appellant further argues that the trial court erred by
adopting a provision that did not give appellant “the final
decision” to schedule his “weekday compensatory parenting time
for missed weekends.” He states that he did not agree to the
provision that requires him to “discuss these makeup dates with
[appellee] as the dates must be mutually agreed on.”
{¶48} Our review of the record does not support appellant’s
argument that the parties agreed that appellant would have “the
final say when” he could exercise his compensatory time.
Instead, the only caveat that the parties recited into the
record is that appellant could not exercise his compensatory
time during a weekend when appellee had parenting time with the
children. Thus, we do not agree with appellant that the trial
court erred by adopting a plan that did not give him “the final
say.” However, we recognize that appellant’s work schedule can
be demanding, inflexible and subject to last-minute changes.
Thus, the parties should endeavor to establish some method to
accommodate each of their schedules when the situation demands
it or, as the plan provides, “attempt mediation or other
resolution methods” prior to any additional court action.
{¶49} In conclusion, we determined the trial court erred by
adding the 24-hour-notice provision and, arguably, by excluding 29 ROSS, 22CA9
a provision to grant each parent parenting time on their
birthdays. However, any error that the trial court may have
made does not constitute plain error that we must correct in
order to avoid a miscarriage of justice. The record fails to
support appellant’s remaining assertions that the plan that the
court adopted does not reflect the parties’ in-court agreement.
{¶50} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
III
{¶51} In his third assignment of error, appellant asserts
shared-parenting plan as a reflection of the parties’ in-court
settlement agreement. He argues that, because each party
submitted plans that differed from the terms of their in-court
agreement, they did not have a meeting of the minds sufficient
to form a valid agreement. Appellant reiterates his
disagreements with the second-amended-shared-parenting plan that
the court adopted: (1) he did not consent to “mutually” agree
upon his compensatory time; (2) he is unable to give appellee 24
hours’ notice if he will be late picking up the children; (3) he
did not agree to delete the spring-break provision; (4) he
should receive the federal-dependency-tax exemption for both
children; and (5) the plan should have allowed tracking devices 30 ROSS, 22CA9
to be placed on the children’s phones. Appellant thus argues
that we should reverse and remand the trial court’s judgment
with instructions to hold a hearing on the merits.
{¶52} “The existence of a contract is a question of law.”
Union Stock Yards v. Hillsboro, 191 Ohio App.3d 564, 2010-Ohio-
5975, 947 N.E.2d 183, ¶ 10 (4th Dist.). “[T]o declare the
existence of a contract, both parties to the contract must
consent to its terms; there must be a meeting of the minds of
both parties; and the contract must be definite and certain.”
(Citations omitted.) Episcopal Retirement Homes, Inc. v. Ohio
Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d
134 (1991). A contract does not exist unless the parties have a
meeting of the minds as to the essential terms of the contract.
Id.; see also Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-
2985, 770 N.E.2d 58, ¶ 16.
{¶53} We initially note that appellant did not argue during
the trial court proceedings that the parties had not reached a
meeting of the minds. Instead, he asked the court to enforce
the parties’ in-court settlement agreement, which the court did.
When appellee presented the second-amended-shared-parenting plan
to the court for approval, appellant did not object. Thus, like
the arguments raised in his second assignment of error,
appellant has forfeited all but plain error regarding a meeting 31 ROSS, 22CA9
of the minds. Moreover, we do not believe that the trial court
plainly erred by failing to determine, sua sponte, that the
parties did not have a meeting of the minds. First, appellant’s
“argument that there was no meeting of the minds is inconsistent
with his position,” on the day of the hearing, “that a
settlement had been reached.” In re K.Y., 8th Dist. Cuyahoga
No. 109111, 2020-Ohio-4140, ¶ 11. Furthermore, appellant cannot
unilaterally repudiate the terms to which the parties agreed or
seek to add new terms that were not part of the in-court
settlement agreement. Spercel v. Sterling Industries, Inc., 31
Ohio St.2d 36, 40, 285 N.E.2d 324 (1972) (“[t]o 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”). For these reasons, we do
not believe that the trial court obviously erred by failing to
determine, sua sponte, that the parties’ competing amended-
shared-parenting plans demonstrated that they had not reached a
meeting of the minds.
{¶54} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED. 32 ROSS, 22CA9
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal. 33 ROSS, 22CA9
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________ Peter B. Abele, 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.