[Cite as Wells v. Wells, 2017-Ohio-7694.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

MICHELLE L. WELLS                                    C.A. No.       28555

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
KACY C. WELLS                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   2013-08-2269

                                 DECISION AND JOURNAL ENTRY

Dated: September 20, 2017



        HENSAL, Presiding Judge.

        {¶1}     Kacy Wells appeals an order of the Summit County Court of Common Pleas,

Domestic Relations Division, that amended a separation agreement he entered into with Michelle

Wells that the court incorporated into its decree of divorce. For the following reasons, this Court

reverses.

                                                I.

        {¶2}     The parties divorced in 2014. They have two children and are also the legal

guardian of another. Following the trial court’s entry of a decree of divorce, which incorporated

the parties’ separation agreement, the parties realized that the decree did not address college

savings accounts they had created for each of the children. Unable to reach an agreement about

the accounts, Ms. Wells moved for an order vacating or modifying the decree. The trial court

granted her motion and indicated that, if the matter required further hearing, the parties should

contact the assigned magistrate.
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       {¶3}    Following the court’s entry, Ms. Wells prepared a proposed order and sent it to

Mr. Wells for review. According to Ms. Wells, Mr. Wells did not respond so she submitted the

proposed order to the trial court, which approved it. Mr. Wells has appealed, assigning as error

that the trial court incorrectly modified the parties’ separation agreement.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN MODIFYING THE PARTIES[’]
       SEPARATION AGREEMENT WITHOUT A HEARING PURSUANT TO AN
       ORDER SUBMITTED BY WIFE WITHOUT THE APPROVAL OF
       HUSBAND.

       {¶4}    Mr. Wells argues that the trial court erred when it approved Ms. Wells’s proposed

order because there was nothing in the record that suggested they both agreed to it. He notes that

this is not a situation where the trial court made a decision based on the evidence before it and

then ordered one of the parties to prepare a proposed judgment entry. He also notes that, because

the new property being divided was overlooked at the time of the original decree, there is no

evidence in the record that supports the court’s division of the property.

       {¶5}    Rule 28 of the Summit County Court of Common Pleas, Domestic Relations

Division, provides that the court “may order either party to prepare the judgment entry.” It also

provides that, if the party that was not ordered to prepare the entry fails to take any action within

seven days after receiving it, the party that prepared the entry may “present the entry for

journalization by certifying that the judgment entry was submitted to the opposing party and that

no response was made.” That rule does not apply here, however, because the order that granted

Ms. Wells’s motion for relief from judgment did not direct her to prepare a judgment entry.

       {¶6}    “[T]he traditional notions of due process accorded by the United States

Constitution [are] ‘notice and opportunity for hearing appropriate to the nature of the case.’”
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Martin v. Dietrich, 9th Dist. Summit No. 19212, 1999 WL 1059677, *2 (Nov. 17, 1999), quoting

State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d 182, 183 (1990). Although the record suggests

that Ms. Wells sent Mr. Wells a copy of the proposed order, there is no evidence that she notified

Mr. Wells that she intended to submit the order to the court if he did not approve it or did not

respond. There is also nothing in the record to indicate that Mr. Wells was informed Ms. Wells

had submitted a proposed order to the court or that he was provided an opportunity to object or

otherwise respond to her submission. We, therefore, conclude that the trial court violated Mr.

Wells’s due process rights when it approved the proposed order without providing notice to Mr.

Wells and an opportunity to respond. Mr. Wells’s assignment of error is sustained.

                                                III.

       {¶7}    Mr. Wells’s assignment of error is sustained.       The judgment of the Summit

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

remanded for proceedings consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, 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
                                                4


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 Appellee.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



TEODOSIO, J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

RANDAL A. LOWRY, Attorney at Law, for Appellant.

KENNETH L. GIBSON, Attorney at Law, for Appellant.

DAVID H. FERGUSON, Attorney at Law, for Appellee.
