[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.
