         [Cite as Federle v. Federle, 2019-Ohio-2565.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



AMY FEDERLE,                                       :     APPEAL NO. C-180171
                                                         TRIAL NO. DR1600420
        Plaintiff-Appellant,                       :

  vs.                                              :      O P I N I O N.

TODD FEDERLE,                                      :

    Defendant-Appellee.                            :




Appeal From: Hamilton County Court of Common Pleas, Domestic Relation
             Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 28, 2019



Brinkman & Associates and Karen R. Brinkman, for Plaintiff-Appellant,

George & Underwood LLC and Krystina S. Underwood, for Defendant-Appellee.
                         OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Presiding Judge.

        {¶1}     Plaintiff-appellant Amy Federle (“Amy”) appeals from the domestic

relations court’s February 26, 2018 decree of divorce which adopted an oral in-court

settlement agreement entered into by the parties in open court before the magistrate

on December 5, 2017.

        {¶2}     Amy and defendant-appellee Todd Federle (“Todd”) were married in

2005. They have three children. In March 2016, Amy filed a complaint for divorce.

On December 5, 2017, after a 19-month period of discovery, predecree motions,

substitution of counsel, and negotiations, the parties appeared, with their trial

counsel, before the magistrate and indicated that they had reached an agreement to

end the litigation.

        {¶3}     At the hearing, Todd’s trial counsel read the terms of the settlement

agreement between the parties into the record. The magistrate then asked each party

whether he or she was voluntarily agreeing to those terms and both answered in the

affirmative.     On February 26, 2018, the domestic relations court journalized a

divorce decree. Neither Amy nor her trial counsel signed the decree. Amy appealed.1

        {¶4}     In two interrelated assignments of error, Amy asserts that the trial

court erred in adopting the divorce decree. While she admits that she acknowledged

the terms of the agreement, which had been read into the record before the

magistrate, she now asserts that the decree ultimately adopted by the domestic

relations court omitted terms of the parties’ agreement and included different and

additional terms. She maintains that the parties continued to dispute and negotiate

over terms of the settlement agreement after the December hearing, and that the


1 Amy also filed timely a motion seeking both a new trial and relief from judgment in the trial court on
the same day that she filed her notice of appeal. Our record does not reflect that the domestic relations
court has ruled on the motion. Neither party has sought a remand from this court to resolve the new-
trial motion before appeal under App.R. 4(B)(2)(b).



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domestic relations court failed to hold a hearing on these matters before entering the

decree of divorce thus denying her an opportunity to be heard on the disputed terms.

She also argues that the magistrate’s failure to issue a decision under Civ.R. 53

denied her the opportunity to raise objections in the domestic relations court.

Finally, she maintains that because she failed to sign the decree, it is not an

enforceable decree. We disagree.

       {¶5}   The law highly favors settlement agreements as an efficient means to

prevent or to end litigation. See Infinite Sec. Solutions, L.L.C. v. Karam Properties,

II, Ltd., 143 Ohio St.3d 346, 2015-Ohio-1101, 37 N.E.3d 1211, ¶ 16. And courts have

ratified the use of settlement agreements to end divorce proceedings. See Walther v.

Walther, 102 Ohio App.3d 378, 383, 657 N.E.2d 332 (1st Dist.1995); see also

Holland v. Holland, 25 Ohio App.2d 98, 101, 266 N.E.2d 580 (10th Dist.1970);

Ferreri v. Ferreri, 11th Dist. Trumbull No. 2017-T-0055, 2018-Ohio-699, ¶ 28;

Eckstein v. Eckstein, 12th Dist. Warren No. CA2010-10-097, 2011-Ohio-1724, ¶ 13.

       {¶6}   Where a settlement agreement is arrived at by the parties in open

court and preserved by being read into the record, the domestic relations court may

enter a judgment which accurately reflects the terms of the agreement, adopting the

agreement as its judgment. See Spercel v. Sterling Industries, Inc., 31 Ohio St.2d 36,

285 N.E.2d 324 (1972), paragraph one of the syllabus; see also Walther at 383; Benz

v. Benz, 11th Dist. Geauga No. 2004-G-2589, 2005-Ohio-5870, ¶ 14. This rule also

obtains when the agreement was entered into before a magistrate. See Benz at ¶ 14.

The in-court agreement may be incorporated into the court’s final judgment, in the

absence of an agreement in writing or approval and signature of a party or her

attorney. See Holland at 101; Eckstein at ¶ 13.

       {¶7}   The domestic relations court’s authority to enforce in-court settlement

agreements is discretionary. See Walther at 383; see also Ferreri at ¶ 25. So long as

the court is satisfied that the settlement agreement reached by the parties was not



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procured by fraud, duress, overreaching, or undue influence, the court may adopt the

settlement agreement as its judgment. Walther at 383.

         {¶8}   Therefore, we review the domestic relations court’s decision adopting

the in-court settlement only for an abuse of that discretion. An abuse of discretion is

shown when a decision is unreasonable, arbitrary, or unconscionable; that is, when

the trial court issues a ruling that is not supported by a “sound reasoning process.”

See AAAA Ents., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990); see also Parker v. Parker, 1st Dist. Hamilton No. C-

130658, 2014-Ohio-5516, ¶ 7.

         {¶9}   Here, the record certified for our review contains a transcript of the

December 5, 2017 hearing held before the magistrate. Both parties were present

with their trial counsel. Our review of that transcript shows that the terms of the

settlement agreement between the parties was read into the record by Todd’s

counsel. The recitation of the terms filled seven pages of transcript. The agreement

resolved issues including custody over the parties’ minor children, parenting time

including holidays and summer vacation time, responsibility for healthcare for the

children, child support and property equalization, and the disposal of property.

         {¶10} When Todd’s counsel finished the recitation, the magistrate inquired
of both parties, then under oath, whether they were voluntarily agreeing to the stated

terms.

          THE MAGISTRATE: Ms. Federle, you’ve heard what has been read

          into the record. You have negotiated quite a bit with your counsel and

          with the other side to effectuate this settlement. Is everything that has

          been read in what you have agreed to today?

          AMY: Correct.




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       {¶11} Amy testified briefly and was then asked by Todd’s trial counsel, “You
have listened to what was read into the record, and you have said that is your

agreement?” She again replied, “Yes.”

       {¶12} Finally, the magistrate asked Amy:

         Okay. Obviously, you have had a chance to review this, and you

         disclosed all your assets and debts when you prepared this, and the

         other side has disclosed all theirs and everyone is in agreement?

       {¶13} Again, Amy replied, “Yes.”

       {¶14} Each of the parties voluntarily agreed to the terms read into the record
in open court. Amy’s refusal to sign the decree or to permit her counsel to sign did

not affect the enforceability of the decree. See Holland, 25 Ohio App.2d at 101, 266

N.E.2d 580. Thus the domestic relations court had the discretion to adopt the

settlement agreement as its judgment and decree of divorce as long as the decree

“accurately delineate[d] those terms.” See Benz, 11th Dist. Geauga No. 2004-G-

2589, 2005-Ohio-5870, at ¶ 14; see also Walther, 102 Ohio App.3d at 383, 657

N.E.2d 332 (“In the absence of fraud, duress, overreaching or undue influence, or of

a factual dispute over the existence of terms in the agreement, the court may adopt

the settlement as its judgment.”).

       {¶15} Amy asserts that some of the provisions in the divorce decree are
inconsistent with the terms that were read into the record during the hearing before

the magistrate.   However, in making this assertion, she has not identified any

substantial conflicts between the terms of the in-court agreement and the provisions

of the final divorce decree. Rather, she has advanced a number of hypothetical

situations where the terms of the decree, rather than diverging from the in-court

agreement, might not be definite enough, particularly with regard to summer

parenting time and child support and property equalization.




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      {¶16} We have compared the provisions of the final divorce decree with the
terms that were read into the record during the hearing and have found no

substantial differences between the two.       For example, the in-court settlement,

agreed to before the magistrate, provides that Amy “shall be residential parent and

legal custodian of the two daughters. [Todd] shall be residential parent and legal

custodian of their son.” The divorce decree includes the identical provision. With

regards to Todd’s parenting time, the in-court agreement provides that his

“parenting time with his daughters is going to be 5:30 to 8:30 every Tuesday and

every other weekend from Friday at 6:00 to Sunday at 6:00 unless the parties agree

otherwise.”   The decree contains the same provision but adds that Todd shall

transport the children to and from Amy’s house.

      {¶17} The children’s summer vacations were allocated as follows in the in-
court agreement

        The extended summer visitation is going to deviate from the standard

        order in that Mother is going to have six weeks with the daughters in

        Texas. It’s going to be allocated as follows: The week immediately

        preceding Mother’s first three-week block of time in Texas is going to

        be with Father. Father is going to have one week, Mother will then

        have three weeks, Father will have a week in between the next three-

        week block for Mother. So, it’s going to be one week Father, three

        weeks Mother in Texas or Florida or wherever she goes, one week

        Father and then three weeks Mother and then back to one week

        Father. Father will end up with three weeks out of that summer.

              They are either going to meet in the middle, or they are going to

        agree to do otherwise, however they feel about exchanging the

        children during the summer.



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       {¶18} The summer-visitation text of the divorce decree was almost identical,
providing that:

        Extended time in the summer shall be as follows: Father shall have

        the first full week after school ends, Mother will have the children the

        next three consecutive weeks; Father will then have the next week and

        Mother will have the next three consecutive weeks. Father will have

        the following week. Each parent will be responsible for any daycare

        expenses when they have the children during the summer. Additional

        parenting time may occur as the parties agree. The parties agree if

        pickup out of state is required, they will met at a midpoint to do the

        transfer or as parties may agree otherwise share the cost of any

        expenses incurred as parties may agree regarding such transfer. Both

        parties agree to reasonable telephone contact, facetime or skype while

        the children are with the other parent so as to maintain contact with

        the minor children.

       {¶19} The in-court agreement provided that child support would be
“calculated initially on a split parental rights worksheet. [But] whatever that number

is, Father is going to pay directly to Mother on top of that initial number to make up

to $1,700 a month capped. So if child support ends up being $1,000, he is going to

pay an additional $700.” On this equalization term, the decree provides that

        [a]s a result of the above distributions and divisions of assets and

        debts, [Todd] shall pay directly to [Amy] the sum of $1,700 [per

        month.] This amount will be reduced by whatever [Todd] pays in

        calculated child support, minus 2% processing fee. * * * If [Todd] is

        paying $1,000 per month in child support, his property equalization

        [will be] $700. * * * The parties acknowledge that this is for domestic


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         support and the parties specifically acknowledge this is not

         dischargeable in bankruptcy.

       {¶20} These comparisons are typical and demonstrate that each of the
essential terms of the in-court agreement was substantially included in the written

divorce decree. The only provision contained in the decree but not covered in the in-

court agreement was that the costs of the litigation were to be born equally, and that

each party should pay his or her own legal fees. The in-court agreement made no

provision for costs or fees.

       {¶21} The hypothetical problems envisioned by Amy regarding summer
visitation and other matters are resolvable under the express authority granted the

parties to “agree to do otherwise,” or by judicial resolution, as under any divorce decree.

See Schrock v. Schrock, 12th Dist. Madison No. CA2005-04-015, 2006-Ohio-748, ¶

14; see also Mr. Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167, 169, 464 N.E.2d 586

(8th Dist.1983).

       {¶22} When considered as a whole, the record before us simply does not
support Amy’s contention that the provisions of the divorce decree conflicted with the

terms of the parties’ in-court agreement. Thus the domestic relations court’s decision

to adopt the in-court settlement agreement as its judgment and decree of divorce was

supported by a sound reasoning process, and did not constitute an abuse of

discretion. See AAAA Ents., 50 Ohio St.3d at 161, 553 N.E.2d 597; see also Walther,

102 Ohio App.3d at 383, 657 N.E.2d 332.

       {¶23} Amy next argues that even after the December 5, 2017 hearing the
terms of the proposed agreement were disputed, and negotiations between the

parties continued as late as February 7, 2018, less than three weeks before the decree

of divorce. The only support for her contention is contained in photocopies of emails

between the parties attached to her appellate brief. But they are not part of the

record on appeal. See App.R. 9(A); see also State v. Tekulve, 188 Ohio App.3d 792,



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2010-Ohio-3604, 936 N.E.2d 1030 (1st Dist.). A reviewing court cannot add matter

to the record before it and then decide the appeal on that basis. See State v. Ishmail,

54 Ohio St.2d 402, 377 N.E.2d 500 (1978), syllabus; see also Cwik v. Cwik, 1st Dist.

Hamilton No. C-090843, 2011-Ohio-463, ¶ 52. Therefore, we do not consider these

documents in resolving this portion of her argument.

       {¶24} Moreover, Amy has forfeited any challenge to the magistrate’s or the
court’s failure to issue a decision or separate findings of fact and conclusions of law.

On the day after the settlement hearing, both parties and their trial counsels signed

an entry, journalized by the magistrate, entitled “Waiver and Consent For Merits

Hearing (Divorce).” The parties “request[ed] the Court to grant their divorce and * *

* accept and to adopt their respective agreements filed with this Court on all matters

of parenting, support, property and debts.” The parties also expressly waived their

rights to separate findings of fact and conclusions of law and to an objection period.

       {¶25} The first and second assignments of error are overruled.

       {¶26} Therefore, we affirm the domestic relations court’s decree of divorce.
                                                                     Judgment affirmed.



BERGERON and WINKLER, JJ., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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