[Cite as Phinizee v. Phinizee, 2014-Ohio-1360.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


DOUG PHINIZEE,                                    :     OPINION

                 Plaintiff-Appellant,             :
                                                        CASE NO. 2013-L-081
        - vs -                                    :

STEPHANIE PHINIZEE,                               :

                 Defendant-Appellee.              :


Appeal from the Lake County Court of Common Pleas, Domestic Relations Division,
Case No. 07 DR 765.

Judgment: Reversed and remanded.


Louis J. Carlozzi, 1382 West Ninth Street, #215, Cleveland, OH 44113 (For Plaintiff-
Appellant).

John S. Salem, Denman & Lerner Co., L.P.A., 8039 Broadmoor Road, #21, Mentor,
OH 44060 (For Defendant-Appellee).

John W. Shryock, John Shryock Co., L.P.A., 30601 Euclid Avenue, Wickliffe, OH
44092 (Guardian ad litem).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Douglas Phinizee, appeals from the judgment of the Lake

County Court of Common Pleas, Domestic Relations Division, adopting a purported

settlement agreement relating to their mutual motions to modify a prior shared parenting

order. We reverse the judgment and remand the matter for further proceedings.
      {¶2}    The parties were divorced by a final judgment entered on September 15,

2008 and were granted shared parenting of their minor child. On October 15, 2012,

appellant filed a motion to show cause, motion for attorney fees, and motion to

terminate the shared parenting plan. On October 30, 2012, appellee filed a motion to

terminate or modify the shared parenting plan.

      {¶3}    A hearing was held before the magistrate on April 17, 2013.          At the

hearing, counsel for the parties indicated the matter would be settled, thereby resolving

all matters, by an agreed judgment entry. The magistrate’s order stated the anticipated

judgment must be prepared, signed, and filed on or before April 29, 2013. The

magistrate’s order further provided that the failure to meet this deadline may result in a

dismissal of the matter. The deadline passed and no agreement was submitted. The

case, however, remained active.

      {¶4}    Eventually, on May 31 and June 26, 2013, “Late Paperwork” hearings

were set.    No testimony was taken during these hearings.        On July 2, 2013, the

magistrate ordered the parties to “proffer their Judgment Entry resolving all pending

matters to the court on or before July 11, 2013.” The magistrate order again indicated

that failure to adhere to the deadline may result in dismissal.      The deadline again

passed with no action.

      {¶5}    On July 30, 2013, however, appellee submitted a proposed judgment

entry, which represented the parties had resolved and settled all matters as set forth in

the body of the judgment.      The proposed judgment was signed by appellee, her

counsel, and the guardian ad litem.      The document provided space for appellant’s

signature as well as his counsel’s signature. These spaces were blank. The court

nevertheless adopted the order. Appellant now appeals.


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      {¶6}       Appellant assigns the following error:

      {¶7}   “The trial court abused its discretion when it entered a Judgment which

purported to have been based on an alleged settlement agreement when no agreement

ever existed.”

      {¶8}       A settlement agreement is a type of contract. Novak v. Novak, 11th Dist.

Lake Nos. 2013-L-047 and 2013-L-063, 2014-Ohio-10, ¶26. “‘A contract is generally

defined as a promise, or a set of promises, actionable upon breach. Essential elements

of a contract include an offer, acceptance, contractual capacity, consideration (the

bargained for legal benefit and/or detriment), a manifestation of mutual assent and

legality of object and of consideration.’” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-

2985, ¶16, quoting Perlmuter Printing Co. v. Strome, Inc.., 436 F.Supp. 409, 414

(N.D.Ohio 1976).

      {¶9}   Appellee submitted the purported “agreed judgment” in this case to the

trial court in an apparent effort to resolve the issues both she and appellant had raised

via their mutual motions to terminate shared parenting. Neither the document itself nor

the circumstances surrounding the court’s adoption of the submission, however,

indicate appellant had accepted the document’s substantive proposals.          There was

consequently no agreed-upon resolution, i.e., the document lacked evidence of

appellant’s acceptance and, by implication, failed to indicate any manifestation of

appellant’s assent to the proposal. In short, the document was not a binding contract.

      {¶10} Had the parties arrived at an agreement in front of the court, and the

record reflected the same, the outcome of the underlying matter may have been

different. “‘Where the settlement agreement is arrived at by the parties in open court

and preserved by being read into the record or being reduced to writing and filed, then


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the trial judge may * * * approve a journal entry which accurately reflects the terms of

the agreement, adopting the agreement as his judgment.’” Kolar v. Shapiro, 11th Dist.

Lake No. 2007-L-148, 2008-Ohio-2504, ¶23, quoting Bolen v. Young, 8 Ohio App.3d 36,

37 (10th Dist.1982). Nothing in the record, however, indicates the parties settled their

dispute in open court, let alone agreed to the terms of the document submitted by

appellee.

       {¶11} In this case, there is no record evidence the parties entered any

agreement. And, even if they did, the document submitted by appellee was legally

insufficient because a written settlement is not binding unless the document is signed by

the parties to the agreement. Haley v. Raker, 6th Dist. Lucas No. L-90-324, 1991 Ohio

App. LEXIS 5261, *10 (Nov. 1, 1991), citing Local Telephone Company v. Cranberry

Mutual Telephone Company, 102 Ohio St. 524, 530 (1921). We therefore hold the trial

court erred by adopting appellee’s proposed judgment entry purporting to resolve the

parties’ disputed issues.

       {¶12} Appellant’s assignment of error has merit.

       {¶13} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas, Domestic Relations Division, is reversed and

remanded for further proceedings.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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