[Cite as Mariotti v. Mariotti, 2019-Ohio-2284.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


APRIL T. MARIOTTI,                                :       OPINION

                 Plaintiff-Appellee,              :
                                                          CASE NO. 2018-A-0067
        - vs -                                    :

PAUL D. MARIOTTI, SR.,                            :

                 Defendant-Appellant.             :


Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017 DR 0011.

Judgment: Affirmed.


Virginia K. Miller, Smith & Miller, 36 West Jefferson Street, Jefferson, OH 44047 (For
Plaintiff-Appellee).

Gary L. Pasqualone, Curry and Pasqualone, 302 South Broadway, Geneva, OH
44041 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Paul D. Mariotti, Sr., appeals from the final judgment of divorce

entered by the Ashtabula County Court of Common Pleas. We affirm.

        {¶2}     On January 9, 2017, appellee, April T. Mariotti, filed a complaint for

divorce and appellant subsequently answered and filed a counterclaim. Ultimately, the

parties entered into settlement negotiations. At a final hearing before the magistrate,

the parties testified to the terms of the settlement into which they entered.            The

magistrate filed her decision on April 23, 2018, which indicated the grounds for the
divorce and attached two joint exhibits to the decision, which included various details of

the settlement. The magistrate additionally ordered appellee’s attorney to prepare a

proposed final agreed judgment entry.         On June 5, 2018, the trial court entered

judgment which ordered both parties to submit respective proposed agreed judgments.

Appellee submitted a judgment entry; on June 28, 2018, however, in lieu of drafting a

proposed entry, appellant filed an “objection” to appellee’s proposed judgment.

       {¶3}   In his “objection,” appellant generally asserted the joint exhibits were

merely “illustrative/representative and not definitive lists” of items subject to the

settlement agreement. Specifically, appellant complained appellee’s proposed judgment

referred to a “chainsaw” and a “generator” to which appellee was entitled. Appellant

argued there was no reference to these items in the joint exhibits or at the hearing. He

further asserted appellee’s claimed entitlement to “unredeemed gift certificates,

encumbrances, discounts or gifts,” was not an aspect of their agreement.

       {¶4}   On August 17, 2018, the trial court entered judgment on appellant’s

objection. The court initially noted that appellant failed to file objections directly to the

magistrate’s decision; the court appeared, however, to treat the objection as an

abbreviated proposed judgment entry, i.e., appellant accepted appellee’s judgment with

the exception of the challenges outlined in the pleading.          The court agreed with

appellant that there was no reference to a chainsaw or a generator at the hearing. As

such, the trial court struck the sentence in the proposed entry relating to these objects.

Notwithstanding this removal, the court determined that the reference to the generator

and chainsaw was redundant because the proposed entry provided “that each party

shall retain the personal property and household goods in their possession at their own




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place of residence except for the items listed in Exhibits 1 and 2.” And the reference to

each parties’ retention of such property was discussed before the magistrate at the final

hearing. The court subsequently adopted appellee’s proposed entry which was filed

and signed as the final decree of divorce. Appellant appeals the judgment assigning

two errors. His first assignment of error provides:

        {¶5}   “The trial court erred in adopting the proposed judgment entry final decree

of divorce submitted by appellee as it does not accurately reflect the terms of the

settlement agreement.”

        {¶6}   Appellant argues the proposed final judgment filed by appellee includes

the following six provisions that were not submitted to the court at the hearing nor

agreed upon by the parties:

        {¶7}   “1. Defendant shall pay Plaintiff the final two (2) months rent of $1,200

immediately, without deductions.

        {¶8}   “2. Defendant shall leave the total amounts of any unredeemed gift

certificates, encumbrances, promotion discounts or gifts in the metal Massage Andover

Bank account and documentation of the unredeemed certificated [sic] provided to

Plaintiff.

        {¶9}   “3. Defendant shall timely and by May 30, 2018 sign any and all forms,

approvals or otherwise arrange for all service contracts to be in Plaintiff’s control

commencing June 30, 2018.

        {¶10} “4. Defendant shall provide Plaintiff with all information including

passwords to all services and accounts, including naming Plaintiff as the Facebook

administrator effective June 30, 2018.




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       {¶11} “5. Defendant shall transfer to Plaintiff’s name and provide Plaintiff with

the BMV Specialty Plates before June 30, 2018.

       {¶12} “6. Defendant shall arrange for the Square account to be transferred to

Plaintiff before June 30, 2018.” (See appellant’s brief, p. 4).

       {¶13} Appellant argues the trial court erred when it permitted these provisions, in

alleged violation of the settlement agreement.

       {¶14} We initially point out that the dates in provisions three, four, five, and six

do not correspond with the dates in the divorce decree to which appellant takes issue.

In this respect, appellant’s contention fails to properly identify errors in these provisions

that specifically relate to the judgment entry at issue. Even were we to ignore this

problem, however, appellant was afforded the opportunity to file a proposed judgment

entry with the court. He did not do so. Instead, he elected to file an “objection” to

appellee’s proposed judgment entry. Appellant did not take issue with provisions one,

three, four, five, or six in his objection. Specifically, appellant did not object to the

requirement that he pay two-months rent arrearage; the requirement that he sign forms

and approvals as well as arrange for service contracts to be placed in appellee’s

control; the requirement that he provide passwords to all services and accounts as well

as name appellee the Facebook administrator; the requirement that he transfer

specialty license plates; and the requirement that he transfer the Square account to

appellee. Because he could have challenged these points before the trial court, and

elected not to do so, we conclude he has waived the challenges on appeal. See e.g.

Schriefer v. Schriefer, 11th Dist. Lake No. 2003-L-040, 2004-Ohio-2206, ¶5

(“Generally, failure to object to an issue at trial waives that issue on appeal.”)




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       {¶15} Despite appellant’s failure to object, we point out that each item, with the

exception of the rent arrearage, is referenced in Exhibits 1 and/or 2. And, regarding the

arrearage, the record includes a decision from January 10, 2017 in which the magistrate

ordered appellant to pay certain rent at a rate of $600 per month. According to appellee,

the $1,200 arrearage relates to this order. It does not appear appellant objected to the

order when it was entered or otherwise sought to modify the same. And, because he

did not challenge the alleged arrearage below, there is nothing in the record to support

a conclusion that its inclusion in the final decree was improper. Appellant’s challenge to

provisions one, three, four, five, and six are, therefore, not well taken.

       {¶16} Appellant, however, did ostensibly object to provision two. With respect to

provision two, the trial court found that there was no deviation between the proposed

judgment and the parties’ agreement. And the record of proceedings indicates the

Andover Bank account, which is associated with the business, which the parties agree

appellee would take over, would be signed over to appellee. And, the parties noted on

record that, as of June 30, 2018, appellant would be entitled to the money in that

account, minus $32,000 and “any gift receipts or gift cards outstanding as of that date.”

This statement directly indicates that appellee would be the account holder and she

would also receive any outstanding (or unredeemed) gift receipts or gift cards. Although

these general statements do not specifically capture each of the points set forth in

provision two, the trial court was not unreasonable to conclude the parties’ agreement

contemplated the specifics set forth in provision two.

       {¶17} Appellant’s first assignment of error lacks merit.

       {¶18} Appellant’s second assignment of error provides:




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         {¶19} “The trial court erred by failing to ensure specificity in the decree and the

exhibits attached to the decree.”

         {¶20} Appellant next contends the final judgment is voidable because it is

insufficiently specific.   Appellant maintains there are various provisions in the final

decree that were never presented to the court at the final hearing. As a result, he

claims it is “flawed,” “irregular,” and thus unenforceable. We do not agree.

         {¶21} First of all, appellant fails to set forth the provisions that he finds “flawed”

and “irregular.” Even if we were to assume he is referring to the outstanding provisions

set forth under his first assignment of error, we have already concluded he has waived

any challenges to those points on appeal. Furthermore, if these additional provisions

are the basis of appellant’s argument, their inclusion would not create a lack of

specificity. To the contrary, their inclusion would presumably enhance the specificity.

Regardless of the structural incongruity of his argument, appellant has failed to

specifically identify the alleged irregularities and his assignment of error therefore lacks

merit.

         {¶22} Appellant’s second assignment of error lacks merit.

         {¶23} A final point requires attention. Appellee, in her brief, requests this court

to issue an order finding appellant’s conduct, in filing the instant appeal, frivolous.

Appellee also requests this court to enter an order requiring appellant to pay her

reasonable attorney fees and costs.         We decline to address these requests in the

instant opinion as we have no evidence of appellee’s fees and thus cannot make a

determination as to their reasonableness. Appellee may file an independent motion on

the issue of frivolous conduct as well as evidence of her fees and their reasonableness.




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In turn, appellant may respond in defense of appellee’s allegations. Until such motion is

filed, however, we shall not consider the merit of the allegation of frivolous conduct.

       {¶24} For the reasons discussed in this opinion, the Ashtabula County Court of

Common Pleas is affirmed.



MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




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