[Cite as Dodge v. Dodge, 2017-Ohio-7087.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT

Jennifer Dodge,                                   :

                Plaintiff-Appellee,               :
                                                                   No. 16AP-166
v.                                                :              (C.P.C. No. 13DR-3137)

Stephen Dodge,                                    :           (REGULAR CALENDAR)

                Defendant-Appellant.              :



                                            D E C I S I O N

                                    Rendered on August 3, 2017


                On brief: Grossman Law Offices, Anthony R. Auten and
                John H. Cousins, IV, for appellee. Argued: John H.
                Cousins, IV.

                On brief: The Law Office of Nicholas W. Yaeger, LLC, and
                Nicholas W. Yaeger, for appellant. Argued: Nicholas W.
                Yaeger.

                  APPEAL from the Franklin County Court of Common Pleas,
                              Division of Domestic Relations

HORTON, J.
        {¶ 1} Defendant-appellant, Stephen Dodge, appeals from a judgment entry decree
of divorce entered by the Franklin County Court of Common Pleas, Division of Domestic
Relations, terminating appellant's marriage to plaintiff-appellee, Jennifer Dodge. Because
we are unable to review appellant's assigned errors, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Appellant and appellee were married on December 28, 2007; they have two
minor children. Appellee filed a complaint for divorce on August 23, 2013. Appellant filed
No. 16AP-166                                                                                2

an answer and a counterclaim for divorce on September 16, 2013. The trial court issued
temporary orders regarding spousal support, child support, and parenting time.
       {¶ 3} The parties filed a joint motion for arbitration on August 14, 2015. The
motion stated that, upon "permission being granted by the Court, the parties agree to
proceed with arbitration, pursuant to the terms of the arbitration agreement which is
attached." (Aug. 14, 2015 Joint Mot. at 1.) The arbitration agreement stated that the
parties had selected Gerald J. Babbit to serve as arbitrator. The court sustained the joint
motion for arbitration on August 19, 2015. (See Jgmt. Entry Decree of Divorce, Ex. D.)
       {¶ 4} The parties subsequently discovered that Babbit was unable to serve as the
arbitrator due to a conflict of interest. As such, the court granted the parties' motion to
vacate the court's August 19, 2015 entry.
       {¶ 5} On January 21, 2016, the parties filed another joint motion for arbitration,
and attached their new arbitration agreement to the joint motion. The new arbitration
agreement was identical to the agreement the parties filed with the August 14, 2015
motion, except that the new agreement identified Craig Treneff as the arbitrator.
       {¶ 6} In the arbitration agreement, the parties stated that they "believe[d] that
their domestic dispute should be submitted to arbitration; and in furtherance thereof they
have entered into this agreement for binding arbitration to fully, resolve the arbitrable
issues to be submitted to the Arbitrator for resolution." (Arbitration Agreement at 1.) The
parties identified the arbitrable issues as spousal support, division of property, application
of R.C. 3105.73, all child-related financial issues, and any other issues agreed upon by
both counsel at the commencement of the arbitration. Paragraph six of the arbitration
agreement, titled "AWARD," provided that:
              The Arbitrator shall issue his decision in writing. His decision
              shall include Findings of Fact and Conclusions of Law. The
              decision shall be delivered to each counsel simultaneously.
              The decision shall be rendered within 14 days following the
              conclusion of the hearing. Except as otherwise set forth
              in R.C. Sec. 2711.10, .11, and .13, upon completion of
              the      arbitration      hearing,        the     Arbitrators'
              determination shall be final, binding and conclusive
              on both parties.

              ***
No. 16AP-166                                                                           3

              The transcript of testimony, evidence produced, and the
              Arbitrator's Decision shall be considered the record of this
              divorce as it relates to any future proceedings including but
              not limited to modification of child support and spousal
              support, and full rights of appeal by either party from the
              Decree of Divorce.

(Emphasis sic.) (Arbitration Agreement at ¶ 6.)
       {¶ 7} On January 21, 2016 the court issued an entry sustaining the joint motion
for arbitration.
       {¶ 8} On February 11, 2016, the arbitrator's January 8, 2016 decision and award
was filed in the trial court. The award stated that the arbitration hearing was held on
December 7 and 14, 2015, and that the hearing was "conducted pursuant to Ohio Revised
Code § 2711.01 et seq." (Arbitration Decision & Award at 1.) The award contained findings
of fact and conclusions of law regarding every issue presented to the arbitrator for
resolution.
       {¶ 9} On February 25, 2016, the trial court issued the judgment entry decree of
divorce, which adopted the arbitrator's decision and award and made the award the final
order of the court. The court noted in the decree that the parties had entered into an
agreement allocating parental rights and responsibilities, and that the guardian ad litem
had approved their agreement. The court adopted the parties' agreement and made it an
order of the court relating to all matters concerning the minor children. On March 4,
2016, appellant filed a notice of appeal from the judgment entry decree of divorce.
II. ASSIGNMENTS OF ERROR
       {¶ 10} Appellant appeals, assigning the following errors for our review:
              [I.] The Trial Court Abused Its Discretion And Erred As A
              Matter Of Law In Failing To Find A De Facto Termination Of
              The Marriage Prior To The Date Of The Final Hearing And By
              Failing To Value Assets And Liabilities As Of The Proposed De
              Factor Date Of August 29, 2013.

              [II.] The Arbitrator Abused his Discretion By Valuing And
              Dividing As An Asset Property That Is Neither Owned By the
              Appellee Or Appellant Thereby Rendering An Inequitable
              Property Division Per R.C. §3105.171.

              [III.] The Arbitrator Erred As A Matter Of Law And Abused
              His Discretion By Failing To Divide A Marital Deferred Tax
No. 16AP-166                                                                                  4

               Liability, And, As A Result, The Property Division Is
               Incomplete.

               [IV.] The Arbitrator Erred As A Matter Of Law And Abused
               His Discretion In Its Child Support Calculation By Imputing
               $25,200 In Child Care Expenses When None Exist, By Only
               Imputing Income of $25,000 To The Appellee And By Failing
               To Appropriately Analyze The Factors Of This Case Pursuant
               R.C. 3119.04(B).

               [V.] The Trial Court Abused Its Discretion And Erred As A
               Matter Of Law By Allocating Marital Debts/Loans Made By
               The Parties' Family Members As The Sole Debt Of The
               Appellant. Subsequently The Property Division Is Unequal
               And Inequitable.

               [VI.] The Arbitrator Erred As A Matter Of Law And Abused
               His Discretion By Dividing The Appellant's FA Capital
               Accumulation Awards Equally Between The Parties When The
               Parties And Their Experts Agreed Only 85.7% Of These
               Awards Were Marital.

III. ANALYSIS
         {¶ 11} Appellant's assignments of error all pertain to findings made by the
arbitrator, which were adopted by the trial court and incorporated into the judgment
entry decree of divorce. Because appellant failed to properly challenge the arbitrator's
award in the trial court, we are unable to reach the merits of appellant's assignments of
error.
         {¶ 12} "Arbitration occurs when disputing parties contractually agree to resolve
their conflict by submitting it to a neutral third party for resolution. It provides the parties
with a relatively speedy and inexpensive method of conflict resolution and has the
additional advantage of unburdening crowded court dockets." Mahoning Cty. Bd. of
Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d
80, 83 (1986). Sup.R. 15(B) permits a judge in a domestic relations case to "refer a case or
a designated issue to arbitration" at the request of all parties. See also Kelm v. Kelm, 68
Ohio St.3d 26 (1993), paragraph one of the syllabus.
         {¶ 13} "Ohio has a strong and well-established public policy favoring arbitration."
State v. Ohio Civ. Serv. Emps. Assn., Local 11 AFSCME AFL-CIO, 10th Dist. No. 14AP-
906, 2016-Ohio-5899, ¶ 12, citing Schaefer v. Allstate Ins. Co., 63 Ohio St.3d 708, 711
No. 16AP-166                                                                               5

(1992). Arbitration awards are presumed valid, and a reviewing court may not merely
substitute its judgment for that of the arbitrator. Id. See Mahoning Cty. at 83-84
(observing that "[t]he whole purpose of arbitration would be undermined if courts had
broad authority to vacate an arbitrator's award").
       {¶ 14} "Once an arbitration is completed, a court has no jurisdiction except to
confirm and enter judgment (R.C. 2711.09 and 2711.12), vacate (R.C. 2711.10 and 2711.13),
modify (R.C. 2711.11 and 2711.13), correct (R.C. 2711.11 and 2711.13), or enforce the
judgment (R.C. 2711.14)." State ex rel. R.W. Sidley, Inc. v. Crawford, 100 Ohio St.3d 113,
2003-Ohio-5101, ¶ 22. "A trial court may not evaluate the actual merits of an award and
must limit its review to determining whether the appealing party has established that the
award is defective within the confines of R.C. Chapter 2711." Telle v. Estate of William
Soroka, 10th Dist. No. 08AP-272, 2008-Ohio-4902, ¶ 9. Because an arbitration award
may be challenged only through R.C. Chapter 2711, " '[t]he jurisdiction of the courts to
review arbitration awards is thus statutorily restricted; it is narrow and it is limited.' "
Miller v. Gunckle, 96 Ohio St.3d 359, 2002-Ohio-4932, ¶ 10, quoting Warren Edn. Assn.
v. Warren City Bd. of Edn., 18 Ohio St.3d 170, 173 (1985).
       {¶ 15} R.C. 2711.10 provides that a court may vacate an award "upon the
application of any party," for any of the following reasons: (1) the award was procured by
corruption, fraud, or undue means; (2) there was evident partiality or corruption on the
part of the arbitrators; (3) the arbitrators are guilty of misconduct in refusing to postpone
the hearing, or refusing to hear pertinent and material evidence; or (4) the arbitrators
exceeded their powers, or so imperfectly executed them that a mutual, final, and definite
award upon the subject matter submitted was not made. R.C. 2711.10 thus "limits judicial
review of arbitration to claims of fraud, corruption, misconduct, an imperfect award, or
that the arbitrator exceeded his authority." Goodyear Tire & Rubber Co. v. Local Union
No. 220, 42 Ohio St.2d 516 (1975), paragraph two of the syllabus.
       {¶ 16} R.C. 2711.11 states that, "upon the application of any party," a court may
modify or correct an arbitration award for any of the following reasons: (1) there was an
evident material miscalculation of figures or an evident material mistake in the
description of any person, thing, or property; (2) the arbitrators have awarded upon a
matter not submitted to them; or (3) the award is imperfect in matter of form not
No. 16AP-166                                                                              6

affecting the merits of the controversy. See Robert W. Setterlin & Sons v. N. Mkt. Dev.
Auth., 10th Dist. No. 99AP-141 (Dec. 30, 1999) (noting that the types "of errors in an
arbitration award that warrant correction by a trial court are those that appear on the face
of the award"). R.C. 2711.13 provides the procedure a party must follow to file a motion to
vacate, modify, or correct an arbitration award.
       {¶ 17} R.C. 2711.09 provides that when a party applies to the court for an order
confirming an arbitration award, the court "shall grant such an order and enter judgment
thereon, unless the award is vacated, modified, or corrected as prescribed in sections
2711.10 and 2711.11 of the Revised Code." "The language of R.C. 2711.09 is mandatory. If
no motion to vacate or modify an award is filed, the court must confirm an arbitration
award given a timely motion under R.C. 2711.09." MBNA Am. Bank, N.A. v. Jones, 10th
Dist. No. 05AP-665, 2005-Ohio-6760, ¶ 14.
       {¶ 18} "An appeal may be taken from an order confirming, modifying, correcting
or vacating an award made in an arbitration proceeding or from a judgment entered upon
an award." R.C. 2711.15. However, because "[a] trial court is precluded from evaluating
the actual merits of an award and must confine itself to determining whether the
appealing party has established that the award is defective in a manner recognized by R.C.
Chapter 2711," on appeal, "the standard of review is further restricted." MBNA Am. Bank,
NA at ¶ 10-11.
       {¶ 19} "[W]hen a court of appeals reviews a trial court's judgment concerning an
arbitration award, the appellate court must confine its review to evaluating the order
issued by the trial court pursuant to R.C. Chapter 2711." State at ¶ 13. Thus, when "an
appeal is taken from an order confirming, modifying, correcting, or vacating an
arbitration award, the review is confined to the order and the original arbitration
proceedings are not reviewable." Robert W. Setterlin & Sons, citing Lockhart v. Am.
Reserve Ins. Co., 2 Ohio App.3d 99, 101 (8th Dist.1981). See also Warren Edn. Assn. at
173-74, quoting Lockhart at 101. Our limited "review of the trial court's decision
confirming arbitration is conducted under an abuse of discretion standard." MBNA Am.
Bank, NA at ¶ 11.
       {¶ 20} Thus, "[t]o preserve the speedy and effective enforcement of arbitration
awards, courts have required parties to adhere to the procedures set forth in R.C. Chapter
No. 16AP-166                                                                              7

2711." GWF Corp. v. Hardman, 10th Dist. No. 92AP-842 (Feb. 2, 1993). As such, if a party
fails "to challenge the award by virtue of the statutorily prescribed methods for doing so,"
the party "waive[s] his arguments concerning" the arbitrator's award. Id.
       {¶ 21} Appellant did not file a motion to vacate, modify or correct the arbitration
award. Accordingly, by failing to challenge the arbitration award pursuant to the
statutorily prescribed method for doing so, appellant has waived the arguments he now
assigns as error.
       {¶ 22} Appellant argues that the parties "expressly and specifically agreed either
party could directly appeal the arbitrator's decision to the Tenth District Court of Appeals
bypassing the appellate restrictions in R.C. 2711, et. seq." (Reply Brief at 1.) Appellant
contends that, "[a]s a result of the parties' agreement modifying the arbitration
agreement, and based on the Trial Court's approval of the parties' agreement, the
Appellant was not required to 'challenge' the arbitration agreement as * * * required by
R.C. § 2711.10 or R.C. § 2711.11." (Reply Brief at 2.) Appellant asserts that the parties'
agreement to modify their arbitration agreement and permit the parties to bypass the
requirements of R.C. Chapter 2711 is contained in paragraph two of the court's
January 21, 2016 entry sustaining the joint motion for arbitration.
       {¶ 23} In the entry, the court ordered that "all remaining Orders on the above
entitled case shall be submitted to binding arbitration pursuant to the Arbitration
Agreement which is attached to the Joint Motion." (Jan. 21, 2016 Entry at ¶ 1.) The court
also "acknowledge[d] that the final disposition of the arbitration shall be adopted by the
court and be the terms of the final Decree of Divorce and that each party reserves their
right to appeal the decision to the Tenth District Court of Appeals." (Entry at ¶ 2.)
       {¶ 24} A written contract may be modified or amended by the express agreement
of the parties to it either in writing, or by acts of the parties which evince a meeting of
their minds in agreement to modify its terms upon any particular point. Bank One Trust
Co. v. Wigner, 10th Dist. No. 87AP-329 (June 9, 1988), citing Hotchner v. Neon Prods.,
Inc., 163 F.2d 672 (6th Cir.1947). "A contract cannot be unilaterally modified, and parties
to a contract must mutually consent to a modification." Hanna v. Groom, 10th Dist. No.
07AP-502, 2008-Ohio-765, ¶ 27. Courts presume that the intent of the parties to a
contract resides in the language they chose to employ in the agreement. Kelly v. Med. Life
No. 16AP-166                                                                                 8

Ins. Co., 31 Ohio St.3d 130 (1987), paragraph one of the syllabus. When the terms in a
contract are unambiguous, courts will not in effect create a new contract by finding intent
not expressed in the clear language employed by the parties. Alexander v. Buckeye Pipe
Line Co., 53 Ohio St.2d 241, 246 (1978).
       {¶ 25} In their arbitration agreement, the parties expressed a clear intention to
proceed to binding arbitration pursuant to R.C. Chapter 2711. The arbitration agreement
states that it is "derived from ORC Chapter 2711," that the parties' rights would be "as
prescribed in Ohio Revised Code § 2711," and that "[e]xcept as otherwise set forth in
R.C. Sec. 2711.10, .11, and .13, upon completion of the arbitration hearing, the
Arbitrators' determination shall be final, binding and conclusive on both
parties." (Emphasis sic.) (Arbitration Agreement at ¶ 1, 6 & 7(a).) The parties further
stated that the proceedings before the arbitrator would "be considered the record of this
divorce as it relates to any future proceedings including * * * full rights of appeal by either
party from the Decree of Divorce." (Arbitration Agreement at ¶ 6.) As the parties agreed to
proceed to final, binding, and conclusive arbitration pursuant to R.C. Chapter 2711, the
parties' acknowledgment of their full rights of appeal from the decree of divorce was an
acknowledgment of the appeal rights contained in R.C. 2711.15.
       {¶ 26} Accordingly, we are unable to find that the court's statement in the
January 21, 2016 entry, acknowledging that each party reserved their right to appeal the
decree of divorce, evidenced a meeting of the minds to modify the arbitration agreement.
R.C. 2711.15 provided each party with a statutory right to appeal from the court's
judgment entered on the arbitration award. Accordingly, the court's acknowledgment in
paragraph two of the entry that each party had reserved their right to appeal was an
acknowledgement of the parties' right to appeal the judgment pursuant to R.C. 2711.15.
       {¶ 27} Furthermore, the court ordered in paragraph one of the entry that the case
would be "submitted to binding arbitration pursuant to the Arbitration Agreement."
(Jan. 21, 2016 Entry.) Thus, rather than stating that the parties had modified their
arbitration agreement, or that the case would be submitted to non-binding arbitration
and proceed outside of R.C. Chapter 2711, the court reiterated that the case would be
submitted to binding arbitration pursuant to the parties' arbitration agreement.
No. 16AP-166                                                                              9

         {¶ 28} " 'Ohio law recognizes that when parties agree to submit their disputes to
binding arbitration, they have bargained for the arbitrator's determination concerning the
issues submitted and agreed to accept the result regardless of its legal or factual
accuracy.' " Robert W. Setterlin & Sons, quoting Marra Constructors, Inc. v. Cleveland
Metroparks Sys., 82 Ohio App.3d 557, 562 (8th Dist.1993). Although " '[t]hat result may
seem inequitable, * * * any different result would destroy the integrity of binding
arbitration. * * * If the parties could challenge an arbitration decision on the ground that
the arbitrators erroneously decided legal or factual issues, no arbitration would be
binding.' " State ex rel. Internatl. Union of Operating Engs., Local No. 18 v. Simmons, 58
Ohio St.3d 247, 248 (1991), quoting Huffman v. Valleto, 15 Ohio App.3d 61, 63 (8th
Dist.1984).
         {¶ 29} Accordingly, we find no evidence of a meeting of the minds to modify the
parties' arbitration agreement. Because appellant failed to properly challenge the
arbitration award in the trial court, we are unable to review appellant's assignments of
error.
         {¶ 30} Based on the foregoing, we overrule appellant's six assignments of error.
Having overruled appellant's six assignments of error, we affirm the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations.
                                                                       Judgment affirmed.

                              BRUNNER, J., concurs.
                     LUPER SCHUSTER, J., concurs in judgment only.
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