[Cite as Funkhouser v. Funkhouser, 2015-Ohio-73.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY


Mirna A. Funkhouser                                 Court of Appeals No. E-14-086

        Appellant                                   Trial Court No. 2009-DR-0084

v.

Mark J. Funkhouser                                  DECISION AND JUDGMENT

        Appellee                                    Decided: January 9, 2015

                                               *****

        Barry W. Vermeeren, for appellant.

        K. Ronald Bailey, for appellee.

                                               *****

        OSOWIK, J.

        {¶ 1} This is an accelerated appeal from a May 2, 2014 judgment of the Erie

County Court of Common Pleas, Domestic Relations Division, which issued a judgment

entry decree of divorce applicable to the parties in this case. For the reasons set forth

below, this court affirms the judgment of the trial court and modifies the child support
arrearages provision of the judgment entry decree of divorce to conform to the language

of the original oral agreement of the parties.

         {¶ 2} Appellant, Mirna Funkhouser, sets forth the following three assignments of

error:

               I. THE TRIAL COURT ERRED WHEN IT ACCEPTED THE

         DEFENDANT’S PURPORTED CONSENT JUDGMENT ENTRY,

         WHICH WAS NOT CONSENTED TO BY THE PLAINTIFF.

               II. THE TRIAL COURT ERRED WHEN THE MAGISTRATE

         AND JUDGE SIGNED THE DEFENDANT’S PURPORTED CONSENT

         JUDGMENT ENTRY AND FILED IT WITHOUT EITHER A HEARING

         ON THE FACTS AND LAW OR CONSENT BY THE PLAINTIFF.

               III. THE COURT ERRED IN ITS JUDGMENT THAT WAS 100%

         CONTRARY TO THE AGREEMENT READ INTO THE RECORD BY

         DEFENDANT’S COUNSEL ON JUNE 18, 2013.

         {¶ 3} The following undisputed facts are relevant to this appeal. On May 1, 2009,

appellant filed a complaint for divorce against appellee in this matter. The parties

possessed considerable assets and financial holdings. The ensuing proceedings between

the parties became exceptionally adversarial.

         {¶ 4} On February 15, 2011, pursuant to Civ.R. 37 and as a result of the ongoing

failure of appellant to cooperate in discovery and court orders compelling discovery, the

trial court held, “[P]ursuant to Civ.R. 37, and for good cause shown, it is hereby ordered,




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adjudged and decreed that plaintiff, Mirna Funkhouser, shall be and is hereby prohibited

from introducing any evidence supporting any of her claims in this matter or any

evidence supporting her defenses in this matter.” This order remained in effect for the

duration of the case.

       {¶ 5} On June 18, 2013, the matter was called for trial. At that time, the

February 15, 2011 order of the trial court sanctioning appellant due to her failure to abide

by orders of the court compelling discovery remained in full effect. As the matter

commenced, counsel for appellee objected to counsel for appellant’s questioning given

the restrictions placed upon appellant by the February 15, 2011 court order. Accordingly,

the trial court called a recess. The parties and their respective counsel thereafter entered

into discussions in a conference room in an effort to voluntarily resolve the matter.

       {¶ 6} The parties and their counsel subsequently went back on the record and

proceeded with a final hearing in the matter. The trial court stated, “It’s my

understanding after discussions with the parties off the record that the parties have in fact

reached a resolution as to all [of] the issues as to the divorce; is that correct, counsel?”

Counsel for both parties confirmed that a resolution had been reached. The agreement

was then read into the record at the June 18, 2013 trial court hearing.

       {¶ 7} On September 17, 2013, a consent entry decree of divorce, prepared by

counsel for appellee, was filed. It was executed by appellee, counsel for appellee, the

trial judge, the magistrate, but not executed by appellant or counsel for appellant. Given

the failure of all necessary parties to execute the proposed consent decree, the trial court




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subsequently prepared and issued the May 2, 2014 judgment entry decree of divorce from

which this appeal is taken.

       {¶ 8} With respect to the June 18, 2013 final hearing in this matter, the record

reflects that during the course of the hearing, the trial court engaged in a litany of

unambiguous questions posed to appellant which clearly established appellant’s consent

to the voluntary resolution of the divorce.

       {¶ 9} For example, the trial court stated to appellant, “Anybody forcing you or

coercing you in any way to enter into this agreement?” Appellant replied, “I agree I’m

entering the agreement but I’m not happy with it.” Accordingly, the trial court further

inquired, “Okay, but you are agreeable with it; is that correct?” Appellant affirmatively

replied, “Yes.” The court continued on to further establish appellant’s agreement in the

matter through numerous additional questions demonstrating appellant’s agreement.

       {¶ 10} Notably, the record reflects that when the trial court furnished appellant an

opportunity to inquire of the trial court regarding the agreement, appellant declined to do

so. On May 2, 2014, the judgment entry decree of divorce was filed by the trial court.

This appeal ensued.

       {¶ 11} Appellant’s first two assignments of error similarly allege that the trial

court erred in connection to the judgment entry decree of divorce. We do not concur.

       {¶ 12} App.R. 12(A)(2) establishes that this court may disregard an assignment of

error presented for review, “[I]f the party raising it fails to identify in the record the error




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on which the assignment of error is based or fails to argue the assignment separately in

the brief, as required under App.R. 16(A).”

       {¶ 13} We note that the law and argument portion of appellant’s brief on appeal is

less than a page in length, is not segmented separately into the separate assignments as

required by App.R. 12(A), and contains a series of short conclusory statements.

       {¶ 14} We have carefully reviewed and considered the record of evidence in this

matter. We find that the record reflects that as a result of discovery abuses appellant was

prohibited pursuant to Civ.R. 37 from presenting claims or evidence in support of

defenses in this case. It further reflects that at a final hearing conducted on June 18,

2013, the parties voluntarily entered into a divorce agreement which was read into the

record. A proposed consent entry decree of divorce was filed on September 17, 2013.

Appellant and counsel for appellant did not execute the consent entry. Accordingly, the

trial court proceeded in preparing a separate judgment entry decree of divorce. It was

filed on May 2, 2014.

       {¶ 15} The record also demonstrates that the trial court effectively established that

appellant was entering into the underlying agreement voluntarily and verified appellant’s

agreement and understanding. Lastly, we note that despite appellant’s contrary claims,

the trial court itself prepared the judgment entry decree of divorce.

       {¶ 16} Although the record in this matter reflects that this court could dispose of

appellant’s first two assignments of error pursuant to App.R. 12(A)(2), we decline to do




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so. We have in fact reviewed and considered appellant’s first two assignments of error

and find them not well-taken.

       {¶ 17} In appellant’s third assignment of error, it is alleged that the disputed

judgment entry decree of divorce is wholly contrary to the underlying oral agreement.

Appellant proceeds to enumerate points on which the written entry allegedly diverged

from the June 18, 2013 oral agreement. We again note the App.R. 12(A) issue with

respect to the third assignment of error.

       {¶ 18} Nevertheless, we have thoroughly reviewed the June 18, 2013 transcript of

proceedings in which the oral agreement was read into the record and compared it with

the corresponding May 2, 2014 written judgment entry decree of divorce.

       {¶ 19} While we do not concur with appellant’s overall characterization of the

consent entry, we do note that the May 2, 2014 judgment entry does diverge from the

June 18, 2013 agreement on one particular point necessitating modification of the

judgment entry with respect to that point.

       {¶ 20} The record reflects that the June 18, 2013 agreement between the parties

included a term that, “[A]ny past support will be waived.” (Emphasis added.) By

contrast, the May 2, 2014 written agreement stated and ordered at lines 55-56 that, “Any

and all child support arrearages are hereby canceled.” (Emphasis added.) Appellant

argues on appeal, “[T]he delay in filing a final entry for 10 months should not forgive 10

more months of accrued arrearages.” We concur.




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       {¶ 21} The oral agreement between the parties was to waive arrearages as of

June 18, 2013. Accordingly, we hereby modify lines 55-56 of the May 2, 2014 judgment

entry to reflect that, “Any and all child support arrearages as of June 18, 2013 are hereby

canceled.” This comports with the record’s reflection of the actual agreement between

the parties. The record does not reflect that the underlying oral agreement intended the

arrearage waiver to extend beyond June 18, 2013.

       {¶ 22} Wherefore, although we find appellant’s third assignment of error not well-

taken, we do hereby modify lines 55-56 of the judgment to state that, “Any and all child

support arrearages as of June 18, 2013 are hereby canceled.”

       {¶ 23} The judgment of the Erie County Court of Common Pleas, Domestic

Relations Division, is hereby affirmed and modified. Appellant and appellee are hereby

ordered to split equally the costs of this appeal pursuant to App.R. 24.


                                                          Judgment affirmed and modified.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                              Funkhouser v. Funkhouser
                                                              C.A. No. E-14-086




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Stephen A. Yarbrough, P.J.                                JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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