 [Cite as In re Estate of Lodwick , 2019-Ohio-4559.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                              LAWRENCE COUNTY

 IN THE MATTER OF:              :    Case No. 19CA8
 THE ESTATE OF:                 :
 LISA FAYE LODWICK              :    DECISION AND JUDGMENT
                                :    ENTRY
                                :
                                :    Released: 10/30/19
_______________________________________________________________
                         APPEARANCES:

 Warren N. Morford, Jr., Ironton, Ohio, for Appellant.

 Brenda K. Neville, Meyers & Neville, LLC, Chesapeake, Ohio, for
 Appellee.
 _____________________________________________________________

 McFarland, J.

         {¶1} This is an appeal from the judgment entry of the Lawrence

 County Court of Common Pleas, Probate Division, that granted Appellee’s,

 the Estate of Lisa Faye Lodwick, motion to enforce the terms of a separation

 agreement between Appellant, Michael Lodwick, and his now deceased

 spouse, Lisa Lodwick, in a will contest action filed by Appellant. The

 Probate Court found that Appellant’s challenge to the separation agreement

 was not timely filed so it was presumed valid.

         {¶2} Appellant asserts that “the trial court wrongfully held that R.C.

 2106.22 applied to a written Separation Agreement, which was entered into

 by the decedent [Lodwick] and her surviving spouse, [Appellant], in the
Lawrence App. No. 19CA8                                                          2

course of a divorce proceeding, but never incorporated into a court order.”

After reviewing the record and the applicable law, we overrule Appellant’s

assignment of error and affirm the trial court’s judgment.

                         PROCEDURAL HISTORY

      {¶3} On March 10, 2016, Appellant and Lisa Lodwick entered into a

marital separation agreement. They filed the agreement in the Lawrence

County Court of Common Pleas, case no. 16DR149, a divorce action. The

separation agreement in pertinent part provided: “It is agreed and understood

that this agreement finally settled all rights of the parties and the property

jointly or individually owned by the parties, and that this Agreement, and the

enforceability thereof, is not contingent upon either party or both parties

being granted the divorce on any grounds.” It further stated: “The parties

shall refrain from release and relinquish any and all claims that he or she

may have had, [including an] election to take against or under the other

party’s Last Will and Testament.” At the time of her death on March 28,

2018, Lisa Lodwick was married to Appellant, and the court had not issued

an entry approving or disapproving their separation agreement.

      {¶4} Appellee, Ashlee Stapleton, was appointed executor of Lisa

Lodwick’s estate, pursuant to Ms. Lodwick’s will, on May 14, 2018. On
Lawrence App. No. 19CA8                                                       3

July 17, 2018, Appellant received the Summary of General Rights of

Surviving Spouse, which provided that:

       a surviving spouse shall exercise all rights under Chapter

       2106 of the Revised Code within five months of the initial

       appointment of an executor or administrator of the estate. It

       is conclusively presumed that a surviving spouse has waived

       any right not exercised with that five-month period or within

       any longer time for exercising a right under Chapter 2106 of

       the Revised Code and for good cause shown, the court may

       allow further time for exercising the right that is subject of

       the motion.

      {¶5} On August 7, 2018, Appellant filed a notice to take against Lisa

Lodwick’s will. The court scheduled a hearing for September 17, 2018 to

consider the matter. At that hearing, Appellant affirmed his intent to

proceed with his action to take against Ms. Lodwick’s will. On September

17, 2018, Appellant flied an Election of Surviving Spouse to Take Against

Will, which the court accepted pursuant to an entry filed on the same date.

      {¶6} On December 28, 2018, Appellee filed a Motion for Authority to

Enforce the Terms of Separation Agreement. The court issued a Notice of

Hearing on All Pending motions for February 7, 2019. At the hearing, the
Lawrence App. No. 19CA8                                                           4

court acknowledged Appellant’s notice to take against Lisa Lodwick’s will

and numerous accompanying motions, but it indicated that Appellee’s

Motion for Authority to Enforce the Terms of the Separation Agreement

required “initial consideration” because “[i]f it is granted, then I think that

resolves at least two if not three, the three remaining matters.” After that

hearing, the court issued an entry on March 5, 2019 that stated:

             R.C. 2106.22 requires a surviving spouse who entered

        into a separation agreement to file to set aside the separation

        agreement or otherwise attack the validity of the agreement

        within four months after the appointment of the executor or

        administrator the estate. [Appellant] herein did nothing to

        challenge the enforceability of the separation agreement until

        the February 7, 2019 oral argument on the executor’s motion.

        O.R.C. 2106.22 declares, under the circumstances of this

        case, the separation agreement to be valid.

      {¶7} The court then issued a judgment entry granting the executor’s

motion to enforce the terms of the March 10, 2016 separation agreement in

which Appellant and Ms. Lodwick agreed to not take against each other’s

will issuing. The court also designated the entry as a Final Appealable
Lawrence App. No. 19CA8                                                      5

Order. It is from this judgment that Appellant appeals, asserting a single

assignment of error.

                        ASSIGNMENT OF ERROR

“THE TRIAL COURT WRONGFULLY HELD THAT 2106.22 APPLIED
TO A WRITTEN SEPARATION AGREEMENT, WHICH WAS
ENTERED INTO BY THE DECEDENT AND HER SURVIVING
SPOUSE, APPELLANT MICHAEL B. LODWICK, IN THE COURSE OF
A DIVORCE PROCEEDING BUT NEVER INCORPORATED INTO A
COURT ORDER.”

      {¶8} Appellant argues that the separation agreement is not enforceable

by contempt because it is not a court order. He also argues that the

separation agreement is not enforceable with other remedies to enforce a

judgment, such as an action for specific performance or garnishment.

Therefore, he argues the Probate Court’s judgment should be reversed.

      {¶9} In response, Appellee argues that under R.C. 2106.22 a

separation agreement is presumed valid unless it is challenged within four

months after the appointment of the executor of the estate. Thus, Appellee

argues, because it is undisputed that Appellant did not challenge the

agreement within four months of the appointment of the executor herein, the

agreement must be presumed to be valid and the Probate Court’s judgment

should be affirmed.

      {¶10} “R.C. Chapter 2106 outlines the rights of surviving spouses.”

Reid v. Daniel, 2nd Dist. Montgomery No. 264942015-Ohio-2423, ¶ 12.
Lawrence App. No. 19CA8                                                         6

“One of the rights granted to surviving spouses under R.C. Chapter 2106 is

the right to challenge the validity of antenuptial or separation agreements.”

Id. Under R.C. 2106.22:

       Any antenuptial or separation agreement to which a

       decedent was a party is valid unless an action to set it aside

       is commenced within four months after the appointment of

       the executor or administrator of the estate of the decedent, or

       unless, within the four-month period, the validity of the

       agreement otherwise is attacked. (Emphasis added.)

      {¶11} “The fact that the [separation] agreement may have been

voidable, upon proper proof, does not allow [the surviving spouse] to avoid

the bar of the limitations period and to challenge the agreement's validity.”

Reid v. Daniel, 2nd Dist. Montgomery No. 26494, 2015-Ohio-2423, ¶ 38

(addressed a prenuptial agreement, but R.C. 2106.22 applies equally to

separation agreements), see also Mays v. Carl L. Mays Tr., 6th Dist. Huron

No. H-11-004, 2012-Ohio-618, ¶ 9 (same).

      {¶12} Appellant appears to attempt to circumvent the time limitation

imposed in R.C. 2106.22 by arguing that the separation agreement cannot

operate to prevent Appellant from taking against Ms. Lodwick’s will

because the separation agreement is not subject to enforcement in contempt
Lawrence App. No. 19CA8                                                        7

because it is not a court order, and it cannot be enforced with other remedies,

such as an order for garnishment.

      {¶13} A contempt action is the correct method to enforce a separation

agreement that has been merged into a divorce decree because contempt is

the means courts use to enforce their orders. (Emphasis added.) Hans v.

Stedman, 10th Dist. Franklin Nos. 04AP-376 and 04AP-377, 2005-Ohio-

4819, ¶ 15. And “[g]arnishment is a procedure whereby a creditor can

obtain property of his debtor which is in the possession of a third party.”

Wilson v. Dixon, 73 Ohio App.3d 706, 708, 598 N.E.2d 158, 159 (1991).

“ ‘Garnishments are purely statutory proceedings, and a court can grant

garnishment relief only in accordance with the terms and upon the grounds

set forth in the garnishment statutes.’ ” Wiegand v. Fabrizi Trucking &

Paving Co. Inc., 2019-Ohio-2615, ¶ 12, quoting Doss v. Thomas, 183 Ohio

App.3d 795, 2009-Ohio-2275, ¶ 11 (10th Dist.). None of those issues are

before the court.

      {¶14} Rather, it is R.C. Chapter 2106 that sets out the rights of

surviving spouses. Reid, 2nd Dist. Montgomery No. 26494, 2015-Ohio-

2423, ¶ 38. In that Chapter, the General Assembly has provided that if a

spouse dies, the surviving spouse must be informed of their rights, including

the right to take under or against the will of the deceased spouse. See R.C.
Lawrence App. No. 19CA8                                                          8

2106.01-2106.08. Particular to this case, the surviving spouse also has a

right to challenge an antenuptial or separation agreement, but that challenge

must be filed within four months of the date that the executor or

administrator is appointed to the deceased spouse’s estate. R.C. 2106.22.

Therefore, we find Appellant’s argument that particular requirements

pertaining to other actions such as enforcement of a divorce decree, or

garnishment, is necessary to enforce a separation agreement is without merit

because the areas of the law cited by Appellant have no application in

determining a surviving spouse’s rights, at least not in context of a probate

action.

      {¶15} R.C. 2106.22 provides a “right” to a surviving spouse to

challenge a separation agreement that includes a four-month statute of

limitations. Specifically, it provides that a separation agreement is “valid” if

the surviving spouse fails to challenge it within four months of the date that

the administrator is appointed to the deceased spouse’s estate. There is no

dispute the administrator was appointed on May 14, 2018 and Appellant did

not challenge the separation agreement until the February 7, 2019 hearing,

approximately five months past the deadline. Because Appellant failed to

timely challenge the separation agreement, it is presumed to be valid.
Lawrence App. No. 19CA8                                                      9

      {¶16} As such, the Probate Court did not err in issuing the judgment

that granted the Appellee’s motion to enforce the terms of the March 10,

2016 separation agreement. Accordingly, we affirm the judgment of the

Probate Court.

                                               JUDGMENT AFFIRMED.
Lawrence App. No. 19CA8                                                         10

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Lawrence County Court of Common Pleas, Probate Division, to carry
this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge



                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
