[Cite as Bennett v. Bennett, 2019-Ohio-4363.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 JULIA BENNETT                                        :
                                                      :
         Plaintiff-Appellant                          :   Appellate Case No. 28380
                                                      :
 v.                                                   :   Trial Court Case No. 2017-DR-456
                                                      :
 BRIAN BENNETT                                        :   (Appeal from Common Pleas Court -
                                                      :   Domestic Relations Division)
         Defendant-Appellee                           :
                                                      :

                                                 ...........

                                                OPINION

                           Rendered on the 25th day of October, 2019.

                                                 ...........

MARY ANN THINNES, Atty. Reg. No. 0012653, 241 West Riverview Avenue, Dayton,
Ohio 45405
      Attorney for Plaintiff-Appellant

ERIC M. BROWN, Atty. Reg. No. 0082160, 250 Civic Center Drive, Suite 220, Columbus,
Ohio 43215
      Attorney for Defendant-Appellee

                                                .............

HALL, J.
                                                                                           -2-


         {¶ 1} Julia Bennett appeals from the trial court’s April 3, 2019 judgment entry and

decree of divorce that, inter alia, terminated her marriage to appellee Brian Bennett,

designated Brian the residential parent and legal custodian of the parties’ children,

imposed a child-support obligation on Julia, and divided the parties’ assets and liabilities.1

         {¶ 2} In three related assignments of error, Julia contends the trial court committed

plain error, abused its discretion, and ruled against the weight of the evidence by

approving parts of the parties’ own agreement that are “untrue, exaggeration, hyperbole,

not consistent with the facts of the case, internally inconsistent, not equitable and/or

contrary to public policy.”

         {¶ 3} The record reflects that the parties married in December 2011. Julia filed her

complaint for divorce in May 2017. The case proceeded to a January 11, 2019 hearing

before the trial court. At the outset of the hearing, the trial court noted that Brian was

present with counsel. The trial court noted that Julia was not present but that her attorney

was present and was acting on her behalf. Julia’s attorney, Mary Ann Thinnes, confirmed

that fact. (Tr. at 3.) The trial court also expressed its understanding that the parties had

reached an agreement resolving all issues except for disposition of the marital residence.

(Id. at 3-4.) Both attorneys agreed. (Id. at 3.) Thinnes identified the agreement as Joint

Exhibit 1. She informed the trial court that it included some handwritten changes to which

the parties had agreed. (Id. at 4.) Thinnes also told the trial court that the agreement could

be submitted as an exhibit and did not need to be read into the record. (Id. at 3-4.) The

trial court proceeded to take testimony from Brian regarding his consent to the agreement.

(Id. at 5-6.) Thinnes also represented to the court that Julia was “in agreement with all the


1   For purposes of clarity, we will refer to the parties by their first names.
                                                                                               -3-

terms” of Joint Exhibit 1. (Id. at 7.) Brian and his father then testified about the marital

home, which was owned by a foundation that assists veterans. (Id. at 8.)

       {¶ 4} Following the hearing, the trial court filed a February 11, 2019 decision in

which it found that the real estate was not marital property because the parties had no

ownership interest in it. (Doc. # 115 at 3.) In that same decision, the trial court found the

parties entitled to a divorce on the grounds of incompatibility. (Id. at 2.) It also stated:

                This matter was before the court for a final contested divorce hearing

       on January 11, 2019. Present were plaintiff, Julia Bennett, hereafter referred

       to as Julia, represented by Attorney Mary Ann Thinnes and defendant, Brian

       Bennett, hereinafter referred to as Brian, represented by Attorney Eric M.

       Brown.

       ***

                The parties read an agreement into the record prior to the

       commencement of the hearing. The court orders that the terms of this

       agreement be incorporated into a Final Judgment and Decree of Divorce

       consistent with the rulings herein.

(Id. at 1-2.)

       {¶ 5} At the conclusion of its decision, the trial court provided the following

instructions:

                Counsel for plaintiff, Mary Ann Thinnes, shall prepare a Final

       Judgment and Decree of Divorce consistent with the matters agreed by the

       parties and this Decision so that decree may be filed no later than 21 days

       from the filing of this Decision.
                                                                                          -4-


               If needed, Attorney Mary Ann Thinnes shall contact Jean Walther,

        Judicial Assistant * * * for instructions on how to obtain a CD-ROM of the

        agreement read into the record prior to the commencement of the hearing

        so that those terms may be incorporated into the Final Judgment and

        Decree of Divorce consistent with the rulings herein.

(Id. at 4.)

        {¶ 6} The next docket entry by the trial court is a March 8, 2019 notice of potential

dismissal of the case based on Thinnes’ failure to file a proposed final judgment and

decree of divorce. (Doc. # 118.) Thereafter, on March 26, 2019, Thinnes requested a

telephone conference “to address certain misunderstandings re certain inaccurate and

we believe unnecessary language included in ‘agreement’ submitted at the final hearing

on January 11, 2019.” In her request, Thinnes advised that “[t]his is not an attempt to

change the substantive agreements discussed and reached prior to the final hearing.”

(Doc. # 120.) The trial court promptly granted the request for a telephone conference and

scheduled it for the following day. (Doc. # 121.) The record contains no account or

recording of what occurred during the telephone conference. The next docket entry is an

April 1, 2019 “Notice of Plaintiff’s Partial Withdrawal of Consent to Joint Exhibit 1.” (Doc.

# 122.) This filing consists solely of the following sworn statement by Thinnes:

               Now comes Plaintiff, by and through counsel, and respectfully

        withdraws Plaintiff’s consent to those parts of Joint Exhibit 1 which are on

        its face untrue, exaggeration, hyperbole, not consistent with the facts of this

        case, internally inconsistent, not equitable, contrary to public policy, and

        which distort the substantive agreements discussed and reached during
                                                                                          -5-


        negotiations on January 11, 2019. The undersigned attorney for Plaintiff

        reasonably believed under the circumstances, perhaps mistakenly, but in

        good faith, that opposing counsel would not intend such distortions to be

        incorporated into a final decree herein.

(Id.)

        {¶ 7} The next docket entry is the trial court’s April 3, 2019 judgment entry and

decree of divorce from which Julia has appealed. (Doc. # 123.) That filing began with the

following introductory language:

                This cause came on before the Court on the 11th day of January,

        2019, Plaintiff and Defendant both appearing. Plaintiff, Julia F. Bennett, was

        not present but appeared through her attorney, Mary Ann Thinnes, and

        Defendant, Brian Bennett, appeared with his attorney, Eric M. Brown.

        Attorney Thinnes requested a continuance so that her client could be

        present, but the Court denied the request under the circumstances herein.

        * * * The case proceeded to a contested hearing on the issue of real estate

        only. Otherwise, the parties reached an agreement regarding all other

        matters and said agreement was read into the record. * * *

                Attorney Thinnes represented that she had Plaintiff’s limited authority

        to agree or acquiesce to most issues before the Court, and pursuant to such

        limited authority the final hearing proceeded on Defendant’s counterclaim.

(Id. at 1-2.)

        {¶ 8} In the remainder of its judgment entry and decree of divorce, the trial court

granted the parties a divorce on the grounds of incompatibility. It resolved other issues
                                                                                            -6-


between them consistent with the language of Joint Exhibit 1. In fact, the bulk of the

language of Joint Exhibit 1 was incorporated verbatim into the final judgment and decree

of divorce.

       {¶ 9} In her three assignments of error, which she briefs together, Julia contends

the trial court committed plain error, abused its discretion, and ruled against the weight of

the evidence by approving and adopting parts of Joint Exhibit 1 that are “untrue,

exaggeration, hyperbole, not consistent with the facts of the case, internally inconsistent,

not equitable and/or contrary to public policy.”

       {¶ 10} Julia begins her brief with assertions about her inability to assist her attorney

in preparing for the January 11, 2019 hearing. She also suggests that her attorney lacked

the ability to prepare adequately for the hearing. Julia further asserts that opposing

counsel first presented her attorney with a proposed settlement agreement on the

morning of the hearing and that her attorney lacked time to review it thoroughly or to

consult her. Julia claims that her attorney proceeded into the courtroom and accepted

Joint Exhibit 1 despite the fact “that it still contained considerable language that did not

reflect the actual circumstances—including that both parties appeared, and that both

parties had testified, and that the agreement was read into the record, signed by the

parties, and substantial hyperbole claiming that Julia had reviewed and understood and

waived many things which were unnecessary to the decree, and simply not true.”

(Appellant’s brief at 3.)

       {¶ 11} Julia further asserts that her attorney spent several weeks attempting to

prepare a proposed final judgment and decree of divorce in accordance with the trial

court’s February 11, 2019 instructions. She references undocumented, off-the-record
                                                                                            -7-


exchanges of draft decrees with opposing counsel and contends that opposing counsel

insisted on retaining “boilerplate” language from Joint Exhibit 1. (Id. at 4.) She also argues

that opposing counsel insisted on changing Joint Exhibit 1 when preparing the proposed

final judgment and decree of divorce.2 Specifically, Julia notes that Joint Exhibit 1 stated:

“The Defendant, Brian R. Bennett, appeared with a corroborating witness and his

attorney, Eric M. Brown. Plaintiff, Julia F. Bennett, did not appear, but her counsel, Mary

Ann Thinnes was present.” Julia contends Brian’s attorney changed the proposed final

judgment and decree of divorce to read: “This cause came before the Court on the 11th

day of January 2019, Plaintiff and Defendant both appearing.” (Emphasis added.) Julia

contends this change made it seem as if she was present for the hearing.

       {¶ 12} Julia also claims Joint Exhibit 1 inaccurately contained language stating:

“Upon consideration thereof, and upon the sworn testimony of the parties, this Court

FINDS * * *.” Julia notes that this language was included in the trial court’s final judgment

and decree of divorce even though she did not appear for the hearing and presented no

sworn testimony. Julia also asserts that Joint Exhibit 1 misstated the birthday of one of

the parties’ children by two days. She claims this was not corrected in the final judgment

and decree of divorce.

       {¶ 13} Julia next contends Joint Exhibit 1 makes repeated references to the parties

making full disclosures, being advised of certain things, waiving things, and agreeing to

or acknowledging things. Julia reasons that none of these assertions, which were

included in the final judgment and decree of divorce, can be true because she was not


2  Although not part of the record, it appears from the allegations in the parties’ briefs that
counsel for Brian ultimately drafted the final judgment entry and decree of divorce that the
trial court filed.
                                                                                               -8-


present for the January 11, 2019 hearing.

       {¶ 14} Finally, Julia contends the wrong child-support computation worksheet was

attached to Joint Exhibit 1 and that the parties had agreed to the use of a different one.

She acknowledges, however, that the trial court actually used the correct worksheet in its

final judgment and decree of divorce. She apparently complains only that the wrong

worksheet remains part of the record.3

       {¶ 15} Having reviewed each of Julia’s arguments in light of Joint Exhibit 1 and the

trial court’s April 3, 2019 judgment entry and decree of divorce, we find her assignments

of error to be without merit. With regard to Julia’s assertions that her attorney lacked time

to prepare for the hearing or to consult with her and that opposing counsel foisted Joint

Exhibit 1 on attorney Thinnes on the morning of the hearing, the record contains no

evidence to support these claims. What the record does reflect is that Thinnes appeared

for the hearing and acted on Julia’s behalf with Julia’s consent and proceeded to tell the

trial court that Julia was “in agreement with all the terms” of Joint Exhibit 1. (Tr. at 7.)

       {¶ 16} Although Julia suggests that Joint Exhibit 1 contains things that are “untrue,

exaggeration, hyperbole, not consistent with the facts of the case, internally inconsistent,

not equitable and/or contrary to public policy,” she admits that she “authorized [her

attorney] to represent her at the final hearing” and that her attorney “agreed to the

submission of the draft decree as Joint Exhibit 1.” (Appellant’s brief at 2-3.) By the time


3 According to Julia, the various “irregularities” about which she complains on appeal
were addressed with Brian’s counsel in several e-mail exchanges that are not part of the
record. Julia’s counsel then requested and obtained the telephone conference referenced
above. Julia asserts that during the telephone conference the trial court requested
separate proposed final decrees from both attorneys, but no such discussion or request
is in the record. In any event, on April 3, 2019 the trial court filed the final judgment and
decree of divorce from which Julia has appealed.
                                                                                              -9-


Julia filed her belated April 1, 2019 “Notice of Plaintiff’s Partial Withdrawal of Consent to

Joint Exhibit 1,” the trial court already had filed its post-hearing February 11, 2019

decision accepting Joint Exhibit 1 as the agreement of the parties and ordering it

incorporated into a final judgment and decree of divorce. (See Doc. # 115 at 2, 4.) Once

the trial court made that order, we question whether Julia unilaterally could “withdraw” her

consent to portions of Joint Exhibit 1.

          {¶ 17} But even if Julia could withdraw her consent, her notice was ineffectual. The

motion purported to withdraw consent to unspecified portions of Joint Exhibit 1 that were

“untrue, exaggeration, hyperbole, not consistent with the facts of the case, internally

inconsistent, not equitable and/or contrary to public policy.” The motion did not identify

anything in particular, leaving it to the trial court to ferret out which portions of the 20-page

document Julia found objectionable. The trial court had no obligation to undertake such

a task.

          {¶ 18} In any event, based on our own review of Joint Exhibit 1, we see very little

that is plainly erroneous and nothing that is facially inequitable or contrary to public policy.

The only possibly erroneous or false information was (1) the statement that the parties

had appeared before the trial court and presented “sworn testimony,” (2) a reference to

Joint Exhibit 1 having been read into the record, and (3) a misstated birthday for one of

the parties’ children. Although Brian testified, Julia did not appear personally. Her attorney

appeared on her behalf and spoke for her. Strictly speaking, however, Julia presented no

“sworn testimony.” But the fact that Julia did not appear for the hearing, and therefore did

not testify, was made clear in the first paragraph of the first page of Joint Exhibit 1. As for

reading the parties’ agreement into the record, it is unclear whether this occurred. At the
                                                                                            -10-


outset of the January 11, 2019 hearing, attorney Thinnes told the court that it was

unnecessary to read the agreement into the record of that hearing. In its subsequent

Feburary 11, 2019 decision, however, the trial court noted that the parties had read the

agreement into the record prior to the hearing. But regardless of whether the agreement

in fact was read into the record, Joint Exhibit 1 is part of the record, and there is no dispute

about what it says. We fail to see how Julia could have been prejudiced by the trial court

saying the agreement had been read into the record even if it was not. As for a child’s

birthday being misstated by two days, we fail to see how Julia was prejudiced. And

contrary to her argument on appeal, the incorrect birthday was corrected in the April 3,

2019 final judgment and decree of divorce. (See Joint Exhibit 1 at 1 and Doc. # 123 at 2.)

       {¶ 19} As for Julia’s other complaints, we see nothing objectionable about the trial

court’s April 3, 2019 final judgment and decree of divorce stating: “This cause came

before the Court on the 11th day of January 2019, Plaintiff and Defendant both

appearing.” Although Julia contends this language implied that she was present for the

hearing, once again the record makes clear that she was not present and that her counsel

appeared on her behalf. Indeed, the next sentence states: “Plaintiff, Julia F. Bennett, was

not present but appeared through her attorney * * *.” (Doc. # 123 at 1.)

       {¶ 20} We also find no merit in Julia’s argument that Joint Exhibit 1 makes

repeated references to the parties making full disclosures, being advised of or waiving

certain things, and agreeing to or acknowledging other things. She maintains that these

assertions, which were included verbatim in the final judgment and decree of divorce,

cannot be true because she did not attend the January 11, 2019 hearing. But Joint Exhibit

1 does not say that the parties made disclosures, were advised, agreed, acknowledged,
                                                                                           -11-

or waived anything in person at the hearing. At the outset of the hearing, attorney Thinnes

presented the trial court with a copy of Joint Exhibit 1 and confirmed that it represented

the parties’ agreement on all issues except the real estate. (Tr. at 3-4.) Minutes later,

Thinnes assured the trial court that Julia was “in agreement with all the terms” of Joint

Exhibit 1. (Id. at 7.) Because Joint Exhibit 1 explicitly stated that Julia was not present for

the hearing, and because Thinnes presented it to the trial court at the outset of the

hearing, we reasonably can infer that Julia agreed to everything in Joint Exhibit 1 while

reviewing the case with her attorney sometime before the hearing and/or Thinnes

approved it on Julia’s behalf and with Julia’s permission.

       {¶ 21} We are equally unpersuaded by Julia’s argument about the “wrong” child-

support computation worksheet being attached to Joint Exhibit 1. As a threshold matter,

there is no child-support worksheet attached to or accompanying the copy of Joint Exhibit

1 that is in the record. (See Tr. at Joint Exhibit 1.) Regardless, Julia acknowledges that

the trial court actually used the correct worksheet in its final judgment and decree of

divorce. She also makes no substantive argument about the trial court’s child-support

order being incorrect or otherwise objectionable. In fact, throughout her appellate brief,

Julia makes no substantive argument challenging any aspect of the final judgment and

decree of divorce with respect to its actual division of marital assets and liabilities, its

allocation of parental rights and responsibilities, child support, or anything else. Therefore,

even if we set aside the fact that Julia explicitly agreed to everything in Joint Exhibit 1

through her attorney, we fail to see how she was prejudiced by that document being

incorporated into the trial court’s April 3, 2019 final judgment and decree of divorce.

       {¶ 22} For the foregoing reasons, we overrule Julia’s assignments of error and
                                                                                -12-


affirm the judgment of the Montgomery County Common Pleas Court, Domestic Relations

Division.

                                  .............



WELBAUM, P.J. and FROELICH, J., concur.


Copies sent to:

Mary Ann Thinnes
Eric M. Brown
Brian Kruse
Hon. Timothy D. Wood
