[Cite as Kest v. Kest, 2018-Ohio-489.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 105544




                                           LISA KEST
                                                         PLAINTIFF-APPELLEE

                                               vs.

                                         BENNETT S. KEST

                                                     DEFENDANT-APPELLANT




                               JUDGMENT:
                    AFFIRMED, MODIFIED, AND REMANDED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                   Domestic Relations Division
                                     Case No. DR-16-361230

        BEFORE: Jones, J., Keough, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: February 8, 2018
ATTORNEY FOR APPELLANT

Bridgette D. Pozzuto
55 Public Square, Suite 2001
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Steven L. August
3201 Enterprise Parkway, Suite 130
Beachwood, Ohio 44122
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Bennett Kest (“Bennett”), appeals the trial court’s

judgment entry of divorce from plaintiff-appellee, Lisa Kest (“Lisa”).

       {¶2} Lisa filed a complaint for divorce.      Trial in the matter commenced, but the

parties were able to reach a settlement agreement mid-trial.      At the conclusion of the

settlement negotiations, the parties recited the terms of their agreement on the record in

front of the trial court magistrate.

       {¶3} After the hearing, the court held an attorney’s conference, and the court

ordered the parties to submit prospective judgment entries of divorce via electronic format.

 The trial court journalized the judgment entry of divorce on February 7, 2017, seven days

after the parties submitted their prospective journal entries.

       {¶4} Bennett filed a timely notice of appeal and has raised five assignments of error

for our review.   The assignments of error will be combined and discussed out of order for

ease of review:

       I. The Trial Court erred and abused its discretion by failing to issue a
       magistrate’s decision where a hearing was had before the trial magistrate and
       the parties did not waive their rights under Civil Rule 53.

       II. The Trial Court erred and abused its discretion by adopting a judgment
       entry exactly as proposed and submitted by Wife’s attorney, which
       improperly contains several extensive notes and arguments authored and
       advanced by Wife’s attorney.

       III. The Trial Court erred and abused its discretion in making findings and
       adopting terms in its judgment entry that do not accurately reflect the nature
       and terms of the parties’ in[-]court agreement as set forth on the record.
       IV. The Trial Court erred and abused its discretion in making findings and
       adopting terms in its judgment entry that are not at all set forth in the record
       of the parties’ in[-]court agreement or any reasonable interpretation thereof,
       and which, in some cases, are protections blatantly biased in favor of one
       party and against another.

       V. The Trial Court erred and abused its discretion in making findings and

       adopting terms in its judgment entry without further evidentiary hearing

       where the record of the parties’ agreement, together with the parties’

       subsequent submissions for the court’s consideration, clearly indicate factual

       disputes as to the terms of the agreement, an incomplete agreement, mutual

       mistake and/or unilateral mistake.

                                   I.   Law and Analysis

       {¶5} A settlement agreement “‘may be either written or oral, and may be entered

into prior to or at the time of a divorce hearing.”’         Bottum v. Jankovic, 8th Dist.

Cuyahoga No. 99526, 2013-Ohio-4914, ¶ 11, quoting Haas v. Bauer, 156 Ohio App.3d 26,

2004-Ohio-437, 804 N.E.2d 80, ¶ 16 (9th Dist.). When the agreement is read into the

record in open court and agreed upon, the court may enter judgment adopting its terms.

Bottum at id., citing Grubic v. Grubic, 8th Dist. Cuyahoga No. 73793, 1999 Ohio App.

LEXIS 4200 (Sept. 9, 1999).

       {¶6} Absent fraud, duress, overreaching or undue influence, a settlement agreement

between parties in a divorce is enforceable.

       [S]ettlement agreements are favored in the law. Where the parties enter
       into a settlement agreement in the presence of the court, such an agreement
       constitutes a binding contract. Neither a change of heart nor poor legal
       advice is a ground to set aside a settlement agreement. A party may not
       unilaterally repudiate a binding settlement agreement.

Diguilio v. Diguilio, 8th Dist. Cuyahoga No. 81860, 2003-Ohio-2197, ¶ 33, citing Walther

v. Walther, 102 Ohio App.3d 378, 657 N.E.2d 332 (1st Dist.1995).

       {¶7} In the first assignment of error, Bennett contends that the trial court erred by

not issuing a magistrate’s decision prior to entering the judgment entry of divorce.

       {¶8} Civ.R. 53(D)(1)(a) provides that a court may “refer a particular case or matter

or a category of cases or matters to a magistrate by a specific or general order of reference

or by rule.”   In the event a magistrate makes a decision in a case referred to it under

Civ.R. 53(D)(1)(a), the magistrate “shall prepare a magistrate’s decision” that “may be

general unless findings of fact and conclusions of law are timely requested by a party or

otherwise required by law.”      Civ.R. 53(D)(3)(a)(i), (ii).

       {¶9} In this case, the parties proceeded to trial before a magistrate.     During the

trial, the parties entered into a settlement agreement and the terms of the agreement were

read in open court and on the record.       The magistrate never entered a decision or made

recommendations to the trial court without issuing a decision. Subsequent to reading the

terms of the settlement agreement into the record, the parties submitted proposed journal

entries to the court and the court issued a final decree of divorce.   Because the matter was

resolved via a settlement agreement, there was no matter for the magistrate to “decide” or

for the trial court to review.

       {¶10} Therefore, the trial court did not err by not issuing a magistrate’s decision

prior to entering the judgment entry of divorce and the first assignment of error is
overruled.

       {¶11} In the third and fourth assignments of error, Bennett contends that the trial

court erred and abused its discretion in making findings and adopting terms in its judgment

entry that did not accurately reflect the nature and terms of the parties’ in-court agreement

as set forth on the record.

       {¶12} Bennett first challenges the provision in the divorce decree that did not

reserve the court’s jurisdiction to modify spousal support. As it pertains to this case, R.C.

3105.18(E)(1) provides that a court that enters a decree of divorce or dissolution of

marriage does not have jurisdiction to modify the amount or terms of the alimony or

spousal support unless the “separation agreement of the parties to the divorce that is

incorporated into the decree contains a provision specifically authorizing the court to

modify the amount or terms of alimony or spousal support.” Thus, the court in this case

does not have continuing jurisdiction to modify spousal support unless the separation

agreement that is incorporated into the divorce decree contains a specific provision

reserving jurisdiction. In this case, there was no such provision.

       {¶13} Bennett contends that because the in-court record is silent as to whether the

court was to retain jurisdiction, the court meant to retain jurisdiction.   We disagree.   The

parties agreed on terms including the amount of spousal support Bennett was to pay Lisa,

that spousal support would terminate upon Lisa’s remarriage, and support would terminate

upon the death of either Lisa or Bennett.         Those terms were read into the record.

Bennett’s counsel had sufficient opportunity to advise and question Bennett, both before
placing the agreement on the record and during the recitation of the terms and testimony

that was placed on the record.

       {¶14} Again, R.C. 3105.18(E) mandates that the parties must incorporate into the

separation agreement a specific reservation of jurisdiction for the trial court to modify

either the amount or term of spousal support.        If Bennett failed to negotiate for that term,

it is not the fault of the court.

       {¶15} Bennett next contends that it was error for the trial court to preserve

jurisdiction over temporary support arrears or unpaid processing charges.         Bennett argues

that there was nothing stated during the in-court agreement with regard to the court

reserving jurisdiction and it was an abuse of discretion for the court to do so without first

holding an evidentiary hearing.      Bennett concedes, however, that he and Lisa did not

expressly waive the temporary order of support, or terminate the temporary order of

support.    We find that the lack of a specific agreement to waive or reduce the arrears of

the temporary order of support when arrears existed justifies the trial court’s preservation

of jurisdiction over the issue.

       {¶16} Bennett further argues that the trial court erred because the judgment entry of

divorce did not require Lisa to sell the marital residence.      The parties concede, however,

that the marital residence has been sold and Lisa executed a quit claim deed, which has

been recorded.     This issue, therefore, is moot.

       {¶17} In light of the above, the third and fourth assignments of error are overruled.

       {¶18} In the fifth assignment of error, Bennett argues that the trial court erred in
adopting the judgment entry of divorce drafted by Lisa without first holding an evidentiary

hearing.

       {¶19} “It is well-established   that a trial court may enter a judgment that reflects

an agreement that is read in open court into the record.” Grubic, 8th Dist. Cuyahoga No.

73793, 1999 Ohio App. LEXIS 4200, at 9, citing Zigmont v. Toto, 47 Ohio App.3d 181,

185, 547 N.E.2d 1208 (8th Dist.1988). When parties enter into a settlement agreement in

the presence of the trial court, such an agreement constitutes a binding contract. Spercel

v. Sterling Industries, Inc., 31 Ohio St.2d 36, 285 N.E.2d 324 (1972), paragraph one of the

syllabus.   A trial court has discretionary authority to enforce in-court settlement

agreements or to modify them out of equity.      Hileman v. Hileman, 5th Dist. Stark Nos.

1998CA00256 and 1998CA00257, 1999 Ohio App. LEXIS 3454, 7 (July 26, 1999). A

trial court may adopt an in-court settlement agreement into its judgment and enforce it

even if one party later will not give approval.      Torrence v. Torrence, 5th Dist. Stark

Nos. 1996CA00223 and 1996CA00276, 1997 Ohio App. LEXIS 3935, 6 (July 31, 1997),

citing Gulling v. Gulling, 70 Ohio App.3d 410, 591 N.E.2d 349 (9th Dist.1990).

       {¶20} When the in-court record does not reflect the agreement and/or the proposed

entry does not reflect the agreement, and there is a factual dispute present between the

parties, the trial court should conduct an evidentiary hearing to adjudicate the issues in

dispute. Bottum, 8th Dist. Cuyahoga No. 99526, 2013-Ohio-4914, at ¶ 12, citing Phillips

v. Phillips, 5th Dist. Stark Nos. 2004CA00105 and 2004CA00005, 2005-Ohio-231, ¶ 27.

       {¶21} Bennett cites Hileman to support his claim that the trial court erred in issuing
a judgment entry of divorce without first holding an evidentiary hearing to resolve factual

disputes. In Hileman, the trial court approved and filed a divorce decree that modified

the settlement agreement read into the record as it concerned the division of the parties’

marital property and debt.

       {¶22} Here, Bennett stated on the record that he was entering into a voluntarily

agreement, had an opportunity to consult with counsel, and thought the agreement was

fair, just, and equitable.   Bennett never requested an evidentiary hearing in the event that

the parties did not agree to the terms that would be incorporated into the judgment entry,

nor did Bennett move to vacate or set aside the settlement agreement.     If such a motion is

not filed, the trial court may properly enter a judgment reflecting the agreement. Spercel,

31 Ohio St.2d 36, 285 N.E.2d 324, at paragraph two of the syllabus. However, this is

only true where there are no allegations of fraud, duress, undue influence or of any factual

dispute concerning the existence or the terms of a settlement agreement. Grubic at 11,

citing Mack v. Polson Rubber Co., 14 Ohio St.3d 34, 37, 470 N.E.2d 902 (1984).

       {¶23} We have reviewed the transcript of the hearing in this case.        The record

supports the trial court’s findings concerning the terms of the parties’ settlement

agreement.    Accordingly, we overrule Bennett’s fifth assignment of error.

       {¶24} In the second assignment of error, Bennett argues that the trial court erred by

adopting a judgment entry that improperly contains several extensive notes and arguments

authored and advanced by Lisa’s attorney.

       {¶25} Ohio appellate courts have jurisdiction “to review and affirm, modify, or
reverse final orders.” Article IV, Section 3(B)(2), Ohio Constitution.

        {¶26} In the final judgment entry of divorce, the trial court inadvertently forgot to

remove the “notes” Lisa’s attorney provided to the court in its draft of the judgment entry

of divorce.      Each of the three “notes” is set off from the rest of the journal entry by

parentheses and the typeface is bold and italicized.          Each note begins as follows: “Note:

Magistrate [___]:”.1

        {¶27} The notes do not contain substantive terms of the agreement; rather, they

contain the opinion of Lisa’s attorney with regard to Bennett’s life insurance policy, debts,

cash reserves, and tax liabilities. We agree with Bennett’s contention in so far as it was

improper for the trial court to leave extraneous comments in the final journal entry of

divorce.

        {¶28} Therefore, we modify the final entry of divorce by removing each of the

three notes.     The case is remanded for the trial court to issue a new journal entry in

conformance with this opinion.

        {¶29} The second assignment of error is sustained in part.

        {¶30} Judgment affirmed as modified.               Case remanded for correction of the

journal entry.

        It is ordered that appellee recover of appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.



¹ The notes in the journal entry use the magistrate’s last name.   We decline to do so and have instead
inserted brackets to denote the magistrate’s last name.
      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas, Domestic Relations Division, to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


LARRY A. JONES, SR., JUDGE

KATHLEEN ANN KEOUGH, P.J., and
ANITA LASTER MAYS, J., CONCUR
