[Cite as Galbreath v. Galbreath, 2015-Ohio-373.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BRENDA K. GALBREATH nka                               JUDGES:
TROYER                                                Hon. William B. Hoffman, P. J.
                                                      Hon. W. Scott Gwin, J.
        Plaintiff-Appellee                            Hon. John W. Wise, J.

-vs-                                                  Case No. 2014 AP 04 0017

WILLIAM M. GALBREATH
                                                      OPINION
        Defendant-Appellant




CHARACTER OF PROCEEDING:                           Civil Appeal from the Court of Common
                                                   Pleas, Case No. 2013 TC 01 0039


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            January 29, 2015



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

SCOTT J. MASTIN                                    JOHN A. BURNWORTH
BOWERS, BOWERS & MASTIN                            KRUGLIAK, WILKINS, GRIFFITHS
108 East High Street                               & DOUGHERTY
Suite 3                                            4775 Munson Street, NW, PO Box 36963
New Philadelphia, Ohio 44663-2544                  Canton, Ohio 44735-6963
Tuscarawas County, Case No. 2014 AP 04 0017                                           2

Wise, J.

      {¶1}. Appellant William M. Galbreath appeals from the decision of the Court of

Common Pleas, Tuscarawas County, which granted a post-decree motion for relief from

judgment filed by Appellee Brenda K. Galbreath (nka Troyer), appellant's former

spouse. The relevant facts leading to this appeal are as follows.

      {¶2}. Appellant and appellee were married on October 20, 1990. Two children

were born of the marriage.

      {¶3}. On January 23, 2013, appellee filed a complaint for divorce. Appellant, on

February 8, 2013, filed an answer.

      {¶4}. The matter proceeded to a final hearing on August 16, 2013. On the same

day, the trial court issued an agreed judgment entry and decree of divorce, with a

separation agreement incorporated therein. Among other things, the separation

agreement referenced three real properties to be put up for sale. The one in question in

the present appeal is a 22.75-acre parcel on Evans Creek Road in Stonecreek, Ohio

(hereinafter the "Evans Creek" property or real estate). Said parcel (like the other two

real properties addressed in the separation agreement), was to be put up for sale, and

appellant and appellee were to each receive "one half of any and all equity." See

Separation Agreement at Section 3-A.

      {¶5}. The parties had also agreed that since appellant had received title to the

2005 Chevrolet dump truck, the 2002 Chevrolet Silverado pickup truck, the 1995

Peterbilt truck and 2006 trailer, the 1995 Pontiac Bonneville, and the 1968 Pontiac

GTO, he was to pay appellee the sum of $27,575.54, " *** off the top from the proceeds

of the sale of the real property as outlined herein." See Separation Agreement at
Tuscarawas County, Case No. 2014 AP 04 0017                                            3


Section 3-B. Similarly, the parties had also agreed that since appellant had received

possession of a gun collection, he was to pay appellee the sum of $5,700.00 " *** off the

top of the proceeds of the sale of the real estate as outlined above." See Separation

Agreement at Section 3-E. The equalization payment concerning the vehicles and guns

thus totaled $33,275.54.

      {¶6}. Subsequent to the divorce decree, the aforesaid 22.75-acre Evans Creek

property was sold for the sum of $210,000.00. The title agency informed the parties that

it was prepared to disburse the proceeds of the sale of the property by paying appellee

the aforesaid sum of $33,275.54 off the top of the $210,000.00, then dividing the

remainder between appellant and appellee.

      {¶7}. On November 19, 2013, appellee filed a motion under Civ.R. 60 pertaining

to the distribution of the sale proceeds of the Evans Creek property, essentially seeking

an order that the $33,275.54 property settlement be paid from appellant's proceeds after

dividing the funds from the sale of said real estate. Appellee supplemented her motion

on December 5, 2013. Appellant filed a response in opposition on December 11, 2013.

On December 13, 2013, appellee filed a reply memorandum.

      {¶8}. On January 29, 2014, a hearing before a magistrate was held on

appellee's motion.

      {¶9}. Via a decision issued February 11, 2014, the magistrate concluded, inter

alia, that the parties' separation agreement, which had been drafted by appellee's

counsel, "states very clearly that any sums due to [appellee] were to be taken first from

the proceeds of the sale of the real estate then the balance was to be divided equally

between the parties." The magistrate concluded that "[f]rom the proceeds from the sale
Tuscarawas County, Case No. 2014 AP 04 0017                                              4


of the real estate, [Appellee] Brenda Galbreath should received [sic] the first

$33,275.54" and "[t]he remaining proceeds should be divided equally between the

parties." Magistrate's Decision at 4.

       {¶10}. On February 25, 2014, appellee filed an objection to the magistrate's

decision. On March 17, 2014, appellee filed both a supplemental memorandum and a

corrected supplemental memorandum in support of her objection. On March 21, 2014,

appellant filed a memorandum in opposition. On March 26, 2014, appellee filed a reply,

followed on March 28, 2014 by a supplemental memorandum.

       {¶11}. On March 31, 2014, the trial court conducted a hearing on appellee's

objection. No additional evidence was taken at the objection hearing; however, the trial

court did permit additional argument of counsel. On April 7, 2014, the trial court issued a

judgment entry sustaining appellee's objection. In essence, the trial court determined

that the language in the separation agreement regarding the proceeds from the sale

meant the equalization payment for the cars and guns should come from the appellant's

one-half. See Judgment Entry, April 7, 2014, at 7-9.

       {¶12}. On April 28, 2014, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

       {¶13}. "I. THE TRIAL COURT ERRED IN FAILING TO APPLY THE PLAIN

MEANING TO A TERM CONTAINED IN THE PARTIES’ SEPARATION AGREEMENT,

WHICH ADDRESSES HOW PROCEEDS FROM THE SALE FOR CERTAIN REAL

ESTATE WILL BE DISTRIBUTED TO THE PARTIES."
Tuscarawas County, Case No. 2014 AP 04 0017                                                5


                                             I.

       {¶14}. In his sole Assignment of Error, appellant contends the trial court erred in

interpreting the parties' separation agreement concerning the sale of the real property in

question and thereby granting appellee's motion for relief from judgment. We disagree.

       {¶15}. As an initial matter, we are compelled to set the parameters of our

analysis in this appeal. In the judgment entry at issue, the trial court questioned the

procedural nature of appellee's "Rule 60" motion of November 19, 2013. The trial court

concluded that appellee was essentially asking the court to "exercise its judicial

obligation to interpret" its prior judgment entry of divorce, which had incorporated the

parties' separation agreement. Judgment Entry, April 7, 2014, at 5. The court thus

suggested that a request for relief under Civ.R. 60(A) or 60(B) was not the correct

procedural vehicle under the circumstances (id.), even though appellee had requested

in her objection to the magistrate's decision that an omission or inadvertent mistake in

the separation agreement language should be corrected.

       {¶16}. We have recognized that while a trial court does not have continuing

jurisdiction to modify a marital property division incident to a divorce or dissolution

decree, it has the power to clarify and construe its original property division so as to

effectuate its judgment. Flint v. Flint, 5th Dist. Delaware No. 11–CAF–11–102, 2012–

Ohio–3379, ¶ 10, citing Gordon v. Gordon (2001), 144 Ohio App.3d 21, 24, 759 N.E.2d

431. See, also, R.C. 3105.171(I). Appellant herein does not appear to challenge the trial

court's treatment of the case as a basic matter of interpretation of the divorce decree.

As such, we will review this case as an issue of the trial court "clarification" of its prior

orders, as it is well-established that "[i]f there is good faith confusion over the
Tuscarawas County, Case No. 2014 AP 04 0017                                                  6


interpretation to be given to a particular clause of a divorce decree, the trial court in

enforcing that decree has the power to hear the matter, clarify the confusion, and

resolve the dispute.” Quisenberry v. Quisenberry (1993), 91 Ohio App.3d 341, 348, 632

N.E.2d 916 (citations omitted). An appellate court reviews such an interpretive decision

by the trial court under a standard of review of abuse of discretion. Id. Furthermore,

while a magistrate is the “initial fact finder and issue resolver,” the trial court remains the

“ultimate fact finder and issue resolver.” See Dayton v. Whiting (1996), 110 Ohio App.3d

115, 118, 673 N.E.2d 671 (interpreting former Civ.R. 53 referee function). However, the

basic determination of whether an ambiguity exists in a separation agreement is a

question of law to which we apply a de novo standard of review. See McMillen v.

McMillen, 5th Dist. Ashland No. 2009-COA-033, 2010-Ohio-2399, ¶ 21, citing Barnes v.

Barnes, 5th Dist. Stark No. 2003CA00383, 2005-Ohio-544, ¶ 18.

       {¶17}. In the case sub judice, if the $33,275.54 is taken "off the top" of the entire

proceeds from the sale of the Evans Creek real estate, appellee will receive said

$33,275.54 sum, plus an additional $88,362.23 (calculated as ($210,000.00 -

$33,275.54) ÷ 2), for a grand total of $121,637.77. However, if the $33,275.54 is taken

off of appellant's proceeds only, appellee will receive the significantly greater total of

$138,275.54 (calculated as $33,275.54 + ($210,000.00 ÷ 2)).

       {¶18}. Upon review, we initially find, on a de novo basis, the isolated phrasing

"off the top from [or of] the proceeds" to be ambiguous, in that it is not clear whether the

agreement is speaking of the entire proceeds or just the one-half of the proceeds going

to appellant. However, "[i]t is axiomatic that [a] contract must be interpreted as a whole,

with all provisions and parts construed together as one contract." Brause v. Royal
Tuscarawas County, Case No. 2014 AP 04 0017                                                7

Maccabees Life Ins. Co., 88 Ohio App.3d 149, 153, 623 N.E.2d 638 (3rd Dist. 1993).

The "off the top" language in this instance must be read in pari materia with the sections

of the separation agreement pertaining to each party receiving "one half of any and all

equity" in the real estate and appellant's obligation to reimburse appellee for his award

of the vehicles and firearms in the property division. Mathematically speaking, the trial

court's reading of the separation agreement is the only way that appellee will obtain her

full and just property distribution as envisioned by the parties, and we are therefore

unpersuaded that the trial court abused its discretion in interpreting its prior orders.

       {¶19}. Appellant's sole Assignment of Error is overruled.

       {¶20}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Tuscarawas County, Ohio, is affirmed.


By: Wise, J.

Hoffman, P. J., and

Gwin, J. concur.



JWW/d 0108
Tuscarawas County, Case No. 2014 AP 04 0017   8
