[Cite as Wiseman v. Wiseman, 2014-Ohio-2002.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
JEBIDIAH O. WISEMAN C.A. No. 13CA0009-M
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE JAMIE E. WISEMAN COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellee CASE No. 08DR0406
DECISION AND JOURNAL ENTRY
Dated: May 12, 2014
CARR, Judge.
{¶1} Appellant Jebediah Wiseman appeals the judgment of the Medina County Court
of Common Pleas, Domestic Relations Division, that found him in contempt. This Court
affirms.
I.
{¶2} Jebediah Wiseman (“Husband”) and Jamie Wiseman (“Wife”) filed a joint
petition for dissolution of their almost three-year marriage. The parties executed a separation
agreement on July 30, 2008, that became incorporated into their decree of dissolution of
marriage. The separation agreement included a provision that purported to dispose of the
parties’ marital home, located in Chippewa Lake. Section 4 of the agreement addressed the real
property and imposed obligations on the parties. Wife subsequently filed a motion for Husband
to show cause as to why he should not be held in contempt for failing to comply with the terms 2
of the parties’ separation agreement as it related to the payment of expenses associated with the
marital home.
{¶3} The magistrate held a hearing on Wife’s motion. Husband, Wife, a prior attorney
for Husband, and the parties’ realtor testified. The magistrate issued a decision in which he
found Husband in contempt for failing to comply with the terms of the parties’ separation
agreement after expressly concluding that the terms of the agreement were not ambiguous. The
trial court issued a judgment entry the same day, adopting the magistrate’s decision, finding
Husband in contempt, imposing a sentence, and scheduling a purge hearing. Husband filed
timely objections to the magistrate’s decision.
{¶4} The trial court held a hearing on Husband’s objections. Although neither party
appeared, the court heard the arguments of counsel. The trial court issued a judgment entry
overruling Husband’s objections. Husband appealed and this Court dismissed his appeal for lack
of a final, appealable order because the trial court had failed to independently enter judgment.
The trial court attempted to independently enter judgment, and Husband appealed again. This
Court dismissed the second appeal because the trial court had again failed to independently enter
judgment. The trial court issued another judgment, overruling Husband’s objections and
independently entering judgment. The domestic relations court found Husband in contempt for
failing to comply with the terms of the parties’ separation agreement that the trial court expressly
concluded were not ambiguous. Husband has appealed and raises four assignments of error for
review. 3
II.
ASSIGNMENT OF ERROR I
THE LOWER COURT ERRED IN ITS CONSTRUCTION OF THE SETTLEMENT AGREEMENT OF THE PARTIES AND ITS JUDGMENT ENTRY OF OCTOBER 2, 2012.
{¶5} Husband argues that the trial court erred in its construction of the parties’
separation agreement regarding Husband’s possession of the marital home. This Court
disagrees.
{¶6} The trial court concluded that the parties’ separation agreement, specifically
section 4 which addressed “Real Property,” was not ambiguous. Thereafter, the lower court
concluded that Husband violated the terms of the agreement regarding his obligation to pay for
the expenses related to the marital home. The trial court, therefore, found Husband in contempt
and imposed a sentence.
{¶7} “Separation agreements are contracts, subject to the same rules of construction as
other contracts, to be interpreted so as to carry out the intent of the parties.” Musci v. Musci, 9th
Dist. Summit No. 23088, 2006-Ohio-5882, ¶ 42. While a trial court retains broad discretion to
clarify ambiguity in a contract, the determination whether a contract is ambiguous is a matter of
law. Hyder v. Pizer, 9th Dist. Summit No. 20791, 2002 WL 570256 (Apr. 17, 2002); see also In
re Dissolution of Marriage of Seders, 42 Ohio App.3d 155, 156 (9th Dist.1987). Accordingly,
this Court reviews the trial court’s determination whether the agreement was ambiguous de novo.
See Wintrow v. Baxter-Wintrow, 9th Dist. Summit No. 26439, 2013-Ohio-919, ¶ 11.
{¶8} Where no ambiguity exists, the trial court may not construe, clarify or interpret
the parties’ agreement to mean anything outside of that which it specifically states. Dzeba v.
Dzeba, 9th Dist. Summit No. 16225, 1993 WL 498181 (Dec. 1, 1993). Specifically, “the trial 4
court must defer to the express terms of the contract and interpret it according to its plain,
ordinary, and common meaning.” Hyder, citing Forstner v. Forstner, 68 Ohio App.3d 367, 372
(11th Dist.1990). Moreover, the parties’ agreement is not ambiguous where its terms are clear
and precise. Ryan v. Ryan, 9th Dist. Summit No. 19347, 1999 WL 980572 (Oct. 27, 1999),
citing Lawler v. Burt, 7 Ohio St. 340, 350 (1857). “In arriving at the meaning of any part of the
contract, the instrument must be read in its entirety in order to give effect to the intention of the
parties.” Rock of Ages Memorial, Inc. v. Braido, 7th Dist. Belmont No. 00 BA 50, 2002 WL
234666, *2 (Feb. 8, 2002). On the other hand, “[w]here there is confusion over the interpretation
of a particular clause in a separation agreement, the trial court has the power to hear the matter,
clarify the confusion, and resolve the dispute.” Musci at ¶ 42.
{¶9} Section 4 of the parties’ separation agreement addresses issues regarding real
property. That provision provides in toto:
The parties have an interest in the property known as 5571 Chippewa Road, Chippewa Lake, Ohio 44215. Title to the property is in both names. The financing is in Wife’[s] name only. Wife has vacated the property, or will do so upon execution of this agreement, and Husband shall retain exclusive possession of the property. So long as the property is in Husband’s possession, he shall be responsible for all payments and expenses relative to the property, including, but not limited to, payment of the mortgage loan, real estate taxes, insurance and maintenance. He shall indemnify and hold Wife harmless on real estate related obligations.
Husband will sell the property at a time of his choosing. Wife stipulates there is no marital equity in the property as of execution of this agreement. Upon notifying Wife of his intention to sell the real estate, Wife shall cooperate to facilitate the sale including, but not limited to, providing the escrow agent a quit claim deed conveying her interest in the property to Husband or to a purchaser. All net proceeds of sale shall be payable to Husband and shall be Husband’s separate property. In the event Wife fails to cooperate in this regard, Husband shall no longer be responsible for real estate related expenses.
{¶10} There is no dispute regarding the following facts. Wife vacated the marital home
in September 2008, and she gave Husband her keys. Except for one brief visit to see the 5
couple’s dogs shortly after the parties executed the agreement, Wife never returned to the marital
home. Husband lived in the home until he left in July 2010, for a job in West Virginia. At that
time, the parties executed an exclusive listing agreement with a realtor to sell the home.
Approximately five weeks later, the parties executed an amendment to the listing agreement,
reducing the listing price by $10,000. Husband gave his keys to the realtor.
{¶11} Husband continued to pay the expenses related to the home, including the
mortgage, taxes, insurance, and maintenance, through the end of November 2010. Without
Wife’s knowledge, Husband executed a quit claim deed to Wife on October 27, 2010.
Husband’s attorney for the land transfer signed a “statement of reason for exemption from real
property conveyance fee” as Wife’s representative, although Wife had no knowledge of the
transfer and did not authorize the attorney to act on her behalf. Husband did not inform Wife of
the transfer, and she did not learn of it until she received a packet from Husband’s attorney’s
office containing a copy of the quit claim deed and an application for homeowner’s insurance.
Husband did not immediately respond to Wife’s text messages inquiring what the packet meant.
Wife began paying all expenses related to the real estate in December 2010. She filed her
contempt motion against Husband, seeking reimbursement of the sums she paid due to
Husband’s alleged failure to comply with the terms of the parties’ separation agreement.
{¶12} At the hearing on Wife’s motion, it became clear that the parties did not agree
regarding the meaning and ramifications of the provisions addressing Husband’s “exclusive
possession” of the property and his financial obligations “[s]o long as” the property was in his
possession. For example, Husband argues that he was not bound to retain possession of the
marital home notwithstanding the absence of the sale of the property. In fact, he argues that he
was permitted to relinquish his possession of the property and that he could do so by merely 6
abandoning the property. Moreover, Husband argues that his execution of the quit claim deed to
Wife also constituted relinquishment of his possession. Nevertheless, this Court concludes that
the parties’ agreement is not ambiguous, that the trial court did not err in concluding the same,
and that Husband has misconstrued the plain meaning of the terms to serve his changed
circumstances.
{¶13} The parties’ agreement does not define the terms “possession” and, more
specifically, “exclusive possession.” It is well settled, however, that “common, undefined words
appearing in a written instrument ‘will be given their ordinary meaning unless manifest absurdity
results, or some other meaning is clearly evidenced from the face or overall contents of the
instrument.’” State ex rel. Petro v. R.J. Reynolds Tobacco Co., 104 Ohio St.3d 559, 2004-Ohio-
7102, ¶ 23, quoting Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph
two of the syllabus. Black’s Law Dictionary defines “possession” as “* * * having or holding
property in one’s power; the exercise of dominion over property. The right under which one
may exercise control over something to the exclusion of all others; the continuing exercise of a
claim to the exclusive use of a material object. The detention or use of a physical thing with the
intent to hold it as one’s own. Something that a person owns or controls.” Black’s Law
Dictionary 1201 (8th Ed.2004). “Exclusive possession” is defined as “[t]he exercise of exclusive
dominion over property, including the use and benefit of the property.” Id. at 1202.
{¶14} The parties’ agreement grants to Husband the exclusive possession of the marital
home. Moreover, the agreement directs that Husband shall retain such possession, and that he
will be responsible for all real estate related obligations and hold Wife harmless on those
expenses while the property remains in his possession. The provision allows Husband to sell the
property. Reading these provisions together, it is clear that the agreement provides that Husband 7
would retain exclusive possession of the property until he sold it. There is nothing in the real
property provision which allows Husband to unilaterally renounce his possession of the property
and reimpose possession upon Wife. Barring any sale of the property to Wife, there is no
provision which allows Husband to quitclaim his interest in the property to Wife. There is no
provision which allows Husband to avoid his obligation to assume full financial responsibility
for the real estate related expenses, except under two limited circumstances: (1) if Husband sells
the property, or (2) if Wife fails to cooperate to facilitate the sale of the property. Specifically,
we agree with the trial court’s conclusion that “[t]he separation agreement does not describe any
event that would cause [Husband] to lose his ‘exclusive possession’ of the marital residence until
he sells it.”
{¶15} This Court concludes that the parties’ separation agreement as it relates to the
meaning and ramifications of the term “possession” of the marital home is not ambiguous. By
the plain language of the agreement, and considering that Husband had not sold the property, he
remained in exclusive possession of the property, notwithstanding that he moved out of the home
and executed a quit claim deed to Wife. Accordingly, the trial court did not err by finding that
the parties’ agreement is not ambiguous and that Husband did not lose exclusive possession of
the marital property. Husband’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE LOWER COURT ERRED IN ITS JUDGMENT ENTRY OF OCTOBER 2, 2012 IN FAILING TO FIND THAT [WIFE] HAD FAILED TO COOPERATE IN THE SALE OF THE PROPERTY WHEN THE MANIFEST WEIGHT OF THE EVIDENCE SUPPORTED SUCH A CONCLUSION.
{¶16} Husband argues that the trial court’s finding that Wife cooperated in the sale of
the marital home was against the manifest weight of the evidence. This Court disagrees. 8
{¶17} In determining whether the trial court’s decision is or is not supported by the
manifest weight of the evidence, this Court applies the civil manifest weight of the evidence
standard set forth in C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279 (1978) syllabus,
which holds: “Judgments supported by some competent, credible evidence going to all the
essential elements of the case will not be reversed by a reviewing court as being against the
manifest weight of the evidence.” The Ohio Supreme Court has clarified that:
when reviewing a judgment under a manifest-weight-of-the-evidence standard, a court has an obligation to presume that the findings of the trier of fact are correct. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984). This presumption arises because the trial judge had the opportunity “to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Id. at 80. “A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not.” Id. at 81.
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24.
{¶18} This Court reiterates the relevant provision of the parties’ agreement:
Husband will sell the property at a time of his choosing. Wife stipulates there is no marital equity in the property as of execution of this agreement. Upon notifying Wife of his intention to sell the real estate, Wife shall cooperate to facilitate the sale including, but not limited to, providing the escrow agent a quit claim deed conveying her interest in the property to Husband or to a purchaser. All net proceeds of sale shall be payable to Husband and shall be Husband’s separate property. In the event Wife fails to cooperate in this regard, Husband shall no longer be responsible for real estate related expenses.
{¶19} As an initial matter, this Court concludes that the provision requiring Wife to
cooperate with regard to the sale of the home is not ambiguous. The parties do not dispute this.
To cooperate means “to act or work with another or others; to associate with another or others
for mutual benefit.” Merriam-Webster’s Collegiate Dictionary 275 (11th Ed.2003). 9
Accordingly, cooperation is a two-way street designed to arrive at a place that benefits both
parties, not merely one party at any cost to the other.
{¶20} Both Husband and Wife agreed that both executed the original listing agreement
to sell the house for $119,900.00 upon Husband’s decision to sell. There is no dispute that both
Husband and Wife executed an amendment to the listing agreement approximately five weeks
later, reducing the listing price to $109,000.00. Both parties further agreed that there were never
any offers on the house. The realtor testified that there were only three showings of the home at
the initial price, and none at the reduced price. The realtor testified that she presented options to
the parties when no buyers expressed any interest, including the option for a short sale. The
parties agreed that a short sale involved selling the home for less than what was owed to the
lender on the mortgage. Wife testified that she spoke with the lender to determine whether it was
possible to participate in a short sale without damaging her credit. Based on the lender’s
response, Wife continued to pay the mortgage to protect her credit.
{¶21} Wife testified that Husband never pursued a short sale of the property. Instead,
Wife and Husband merely discussed the option. The realtor confirmed that the option of a short
sale was only one of various options discussed. In addition, Wife testified that neither Husband
nor the realtor ever approached her with an offer that would have necessitated a short sale. Nor
was Wife ever presented with documentation for her execution which would authorize lowering
the listing price below the amount owed on the mortgage.
{¶22} Wife conceded that she refused to consider a short sale under the circumstances
because it would damage her credit. In arguing that she did not fail to cooperate to facilitate the
sale of the home, Wife relied on section 9 of the parties’ separation agreement which provides, in
relevant part: “Neither Husband nor Wife shall hereafter incur any debts or obligations upon the 10
credit of the other and each shall indemnify and save the other absolutely harmless of any debt or
obligation so charged or otherwise incurred.” Specific to Husband, section 9 further provides:
Husband agrees to assume and be solely responsible for the following debts and indemnify and hold Wife absolutely harmless thereon:
The debts which Husband has agreed to assume hereunder;
The debts which Husband has incurred in his name.
{¶23} While Wife conceded that Husband did not incur any new debt in her name, she
testified that acquiescing to a short sale that would have a negative impact on her credit, or
compel her to make up the difference between the sale price and the $103,000.00 balance owing
on the mortgage, would have the same effect as imposing additional financial obligations on her.
{¶24} The trial court found that Wife did not fail to cooperate with regard to the sale of
the property. The trial court based its finding on evidence that Wife had met with the realtor and
agreed to a price reduction in the listing price. In addition, the trial court noted that there have
never been any offers to buy the home. Therefore, Wife did not refuse to consent to a potential
sale.
{¶25} This Court concludes that the trial court’s finding that Wife did not fail to
cooperate with regard to the sale of the property was not against the manifest weight of the
evidence. Based on our review, there was competent, credible evidence to establish that Wife
cooperated to facilitate the sale of the home. Wife met with the realtor and executed the original
and amended listing agreements. Wife refused to pursue the option of reducing the asking price
to a point that would result in a short sale because it would negatively affect her credit. Husband
did not present any evidence that he would make up the difference between the sale price and the
amount owed on the mortgage so as to preserve Wife’s credit and hold her harmless on the
mortgage. Wife continued to pay all real estate related expenses, including the mortgage, taxes, 11
insurance, and maintenance, all of which helped to increase equity in the home and/or maintain
the curb appeal of the home. Certainly, the listing price does not prevent a potential buyer from
offering substantially less than that price. However, the parties agree that there have never been
any offers on the home at any price. Accordingly, there was no evidence that Wife rejected any
offers to purchase the home or otherwise failed to cooperate with regard to the sale of the marital
home. Therefore, the trial court’s finding was not against the manifest weight of the evidence.
Husband’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE LOWER COURT ERRED IN FINDING [HUSBAND] IN CONTEMPT IN ITS JUDGMENT ENTRY OF OCTOBER 2, 2012.
{¶26} Husband’s entire argument relating to this assignment of error is as follows:
“Based upon the errors set forth in Assignments of Error No. I and II above, the lower court
erred in finding Husband in contempt.” This Court disagrees.
{¶27} Based on this Court’s resolution of the first and second assignments of error, we
conclude that the trial court did not err by finding Husband in contempt. To the extent that
Husband is arguing that the trial court’s finding of contempt was against the manifest weight of
the evidence, we disagree. The manifest weight standard of review is enunciated above.
Moreover, we will not here reiterate our discussion relative to Wife’s cooperation in the sale of
the home.
{¶28} In addition, we conclude that the trial court’s finding that Husband retained
exclusive possession of the home and maintained an obligation to pay all real estate related
expenses was not against the manifest weight of the evidence. Husband admitted continuing to
pay all expenses for several months after he physically vacated the home. The trial court found
Husband’s statement that he continued paying such expenses merely as a show of good faith not 12
credible. As the trier of fact is in the best position to assess matters of credibility, this Court is
loath to disturb those determinations on appeal. Wilson, supra, at ¶ 24; State v. Higgins, 9th
Dist. Summit No. 23271, 2007-Ohio-1261, ¶ 22. Husband executed a quit claim deed of his
interest in the property to Wife without her knowledge. He stopped paying property-related
expenses at that time. We agree with the trial court that Husband attempted to circumvent the
plain language of the parties’ agreement and, further, attempted to unilaterally modify the terms
of the parties’ agreed property division. The weight of the evidence demonstrated that Husband
retained an obligation to pay all marital property-related expenses until he either sold the
property or Wife failed to cooperate in the sale of the home. Neither contingency had occurred
when Husband ceased paying the property expenses. Accordingly, the trial court did not err by
finding Husband in contempt. Husband’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE LOWER COURT IN ITS JUDGMENT ENTRY OF OCTOBER 2, 2012 ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR IN ORDERING [HUSBAND] TO PAY ALL OF THE MORTGAGE PAYMENTS AND EXPENSES OF THE PROPERTY WITHOUT ORDERING [WIFE] TO RETURN TITLE AND POSSESSION OF THE PREMISES TO [HUSBAND].
{¶29} Husband argues that the trial court committed plain error by failing to order Wife
to restore Husband’s titled interest in the property upon his compliance with the trial court’s
order that he reimburse Wife for the money she expended for the property-related expenses. He
argues that the absence of such an order would foreclose his receipt of any proceeds from the
eventual sale of the home.
{¶30} A plain error is one that is “obvious and prejudicial although neither objected to
nor affirmatively waived which, if permitted, would have a material adverse effect on the
character and public confidence in judicial proceedings.” Schade v. Carnegie Body Co., 70 Ohio 13
St.2d 207, 209 (1982). The Ohio Supreme Court discussed the civil plain error standard as
follows:
In appeals of civil cases, the plain error doctrine is not favored and may be applied only in 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 v. Davidson, 79 Ohio St.3d 116 (1997), syllabus; see also LeFort v. Century 21-
Maitland Realty Co., 32 Ohio St.3d 121, 124 (1987) (stating that the plain error doctrine should
be used with the utmost caution and only under exceptional circumstances to prevent a manifest
miscarriage of justice).
{¶31} The parties’ separation agreement does not contain any provision whereby
Husband might lose his interest in the proceeds of the sale of the marital home. The parties
agreed that Husband was entitled to any sale proceeds as his separate property as part of the
division of marital property. Accordingly, there was no need for the trial court to issue an order
that was already in effect, and the trial court did not err by failing to order Wife to restore
Husband to title in the property. In the absence of any error by the trial court, there can be no
plain error. Husband’s fourth assignment of error is overruled.
III.
{¶32} Husband’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal. 14
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
WHITMORE, J. CONCURS.
BELFANCE, P. J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
KENNETH L. GIBSON, Attorney at Law, for Appellant.
MICHAEL CRETELLA, Attorney at Law, for Appellee.