[Cite as Waites v. Waites, 2011-Ohio-1504.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



DEBRA M. WAITES                               :      JUDGES:
                                              :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :      Hon. John W. Wise, J.
                                              :      Hon. Julie A. Edwards, J.
-vs-                                          :
                                              :
ROBERT L. WAITES                              :      Case No. 10-CA-46
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Court of Common Pleas,
                                                  Domestic Relations Division, Case No.
                                                  08DR360


JUDGMENT:                                         Affirmed




DATE OF JUDGMENT ENTRY:                           March 23, 2011




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

THOMAS C. LIPP                                    PHILIP L. PROCTOR
123 South Broad Street                            P.O. Box 4803
Suite 309                                         Newark, OH 43058
Lancaster, OH 43130
Fairfield County, Case No. 10-CA-46                                                      2

Farmer, P.J.

      {¶1}     On April 12, 1986, appellant, Robert Waites, and appellee, Debra Waites

were married. Appellee filed a complaint for divorce on July 2, 2008. Three children

were born of the marriage, with two children being emancipated at the time of the filing.

      {¶2}     On November 17, 2009, a divorce hearing was held wherein the parties

submitted a settlement agreement. Appellee's counsel agreed to submit a proposed

judgment entry based upon the terms of the settlement agreement.

      {¶3}     Appellee's counsel prepared the judgment entry, but appellant objected to

the terms, citing three key areas: spousal support, life insurance, and retirement assets.

      {¶4}     On May 3, 2010, appellant filed a motion to dismiss or to set aside

settlement memorandum. A non-oral hearing was set before a magistrate, and the

magistrate determined the matter would be decided upon the affidavits, memoranda,

and documents submitted by the parties. By judgment entry filed June 18, 2010, the

magistrate and the trial court ordered each party to submit a proposed judgment entry.

The trial court adopted appellee's proposed judgment entry decree of divorce on June

21, 2010.

      {¶5}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶6}     "THE TRIAL COURT ABUSED ITS DISCRETION BY SUMMARILY

ADOPTING APPELLEE'S VERSION OF THE SETTLEMENT AGREEMENT AS THE

DIVORCE DECREE BECAUSE IT DOES NOT REPRESENT THE ACTUAL

SETTLEMENT OF THE PARTIES AND THE SETTLEMENT MEMORANDUM IS TOO
Fairfield County, Case No. 10-CA-46                                                     3


AMBIGUOUS TO DETERMINE ANY CLEAR MEANING OR INTENT OF THE

PARTIES."

                                            II

      {¶7}   "THE     TRIAL    COURT      ABUSED       ITS   DISCRETION        BY    NOT

CONDUCTING A STATUTORY FACTOR ANALYSIS FOR SPOUSAL SUPPORT AND

BY USING FIN PLAN AS A SUBSTITUTE FOR A FACTOR ANALYSIS."

                                            I

      {¶8}   Appellant claims the trial court erred in adopting appellee's version of the

settlement agreement without conducting a hearing to review or clear up the

ambiguities. We disagree.

      {¶9}   "Absent fraud, duress, overreaching, or undue influence, a settlement

agreement entered into by parties in a divorce is enforceable." Haas v. Bauer, 156 Ohio

App.3d 26, 2004-Ohio-437, ¶16. As explained by our brethren from the First District in

Mulholland v. Mulholland, Hamilton App. No. C-030931, 2005-Ohio-1196, ¶15-17:

      {¶10} "R.C. 3105.10(B)(2) specifically provides a trial court with the authority to

enforce separation agreements as follows:

      {¶11} " 'A separation agreement that was voluntarily entered into by the parties

may be enforceable by the court of common pleas upon the motion of either party to the

agreement, if the court determines that it would be in the interests of justice and equity

to require enforcement of the separation agreement.'

      {¶12} "The decision to enforce a separation agreement is a discretionary one

and will not be reversed on appeal absent an abuse of discretion.           Schneider v.

Schneider (1996), 110 Ohio App.3d 487, 491, 674 N.E.2d 769. An abuse of discretion
Fairfield County, Case No. 10-CA-46                                                    4


is more than an error of law or judgment; it implies that the trial court acted

unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140."

      {¶13} Appellee and her counsel and appellant's counsel were present at the

November 17, 2009 hearing wherein the settlement agreement was memorialized for

the record.    The only clarification offered during the hearing pertained to the

modification of the spousal support agreement:

      {¶14} "MR. McCOY: I'm sorry, there's a preliminary matter, there's one thing I

want to point out; and that is that in the memorandum entry we've agreed for spousal

support for a period of ten years starting I think it was July of '08. And we are making

that modifiable by the Court.

      {¶15} "***

      {¶16} "MR. LIPP: The amount is modifiable.

      {¶17} "JUDGE MOWRY: The amount but not the duration.

      {¶18} "MR. LIPP: Not the duration is not modifiable.

      {¶19} "JUDGE MOWRY: Okay.

      {¶20} "MR. McCOY: Duration is modifiable. In other words, it can be shortened

if there would be remarriage or cohabitation and that type of thing.

      {¶21} "JUDGE MOWRY: Well, that's a termination. That's not a mod- - - so it

can terminate on certain events.

      {¶22} "MR. LIPP: Well, there's certain events that will terminate it; and we're - -

that cannot be modified, those certain events.

      {¶23} "JUDGE MOWRY: Okay.
Fairfield County, Case No. 10-CA-46                                                   5


         {¶24} "MR. LIPP: The amount can be modified.

         {¶25} "JUDGE MOWRY: So we can crunch numbers, but the only way the

duration would change is if we reach an event that terminates it. So it could terminate

earlier, but the maximum length is ten years.

         {¶26} "MR. MCCOY: That's correct.

         {¶27} "MR. LIPP: That's correct." T. at 3-5.

         {¶28} Appellee was specifically questioned on direct examination about the

settlement agreement:

         {¶29} "Q. Did you read and understand a memorandum entry and attachments

to the memorandum entry?

         {¶30} "A. Yes, I did.

         {¶31} "Q. Do they represent what you want the Court to approve and incorporate

into a final decree of divorce?

         {¶32} "A. Yes, it does.

         {¶33} "Q. Do they represent a fair and equitable distribution of your marital

property and debt?

         {¶34} "A. Yes, it does.

         {¶35} "Q. Does it represent proper support?

         {¶36} "A. Yes, it does.

         {¶37} "Q. Does it represent what is in the best interest of the remaining minor

child?

         {¶38} "A. Yes, it does." T. at 7-8.
Fairfield County, Case No. 10-CA-46                                                    6


       {¶39} Appellant was not questioned as he was not present for the hearing, but

"was present for the signing of the documents." T. at 2. Appellant's counsel was

present to represent his interests. Id.

       {¶40} The trial court adopted the settlement "agreement that you've entered into,

ma'am, and that you, Mr. McCoy, and your client have signed as well." T. at 11. The

trial court then asked counsel about the judgment entry decree of divorce:

       {¶41} "JUDGE MOWRY: ***Who is going to do the entry?

       {¶42} "MR. LIPP: I guess I can do it, if you want, Carl.

       {¶43} "MR. McCOY: You're the only one that can read it."          Id.   See, also,

Memorandum Entry filed November 17, 2009.

       {¶44} Apparently, appellee's counsel submitted a proposed judgment entry in

April of 2010. On May 3, 2010, appellant filed a motion to dismiss or to set aside

settlement memorandum. A non-oral hearing was set before a magistrate, and the

magistrate determined the matter would be decided upon the affidavits, memoranda,

and documents submitted by the parties. See, Notice of Non-Oral Hearing filed May 5,

2010 and Magistrate's Orders filed June 1 and 9, 2010. Counsel for both parties agreed

to this procedure as evidenced by their signature and/or approval on the magistrate's

orders. Thereafter, the magistrate and the trial court ordered the following via judgment

entry filed June 18, 2010:

       {¶45} "In this case, as has been this Court's practice since its inception, the

remedy for such a disagreement is for the parties to file their own version of a final

decree for the Court's consideration. The Court may adopt one version or merge the

submitted versions into its own decree based on the Memo Entry and testimony.
Fairfield County, Case No. 10-CA-46                                                        7


       {¶46} "Wherefore, the Court Orders that each party shall submit a final Decree

of Divorce for the Court's consideration within 30 days."

       {¶47} The trial court adopted appellee's proposed final judgment entry decree of

divorce on July 21, 2010.

       {¶48} Appellant now objects to this procedure, and argues an evidentiary

hearing should have been held. As noted supra, the parties agreed via the June 1 and

9, 2010 magistrate's orders to proceed without testimony.

       {¶49} Civ.R. 53 governs magistrates.          Subsection (D)(2)(b) provides the

following:

       {¶50} "Motion to set aside magistrate's order. Any party may file a motion with

the court to set aside a magistrate's order. The motion shall state the moving party's

reasons with particularity and shall be filed not later than ten days after the magistrate's

order is filed. The pendency of a motion to set aside does not stay the effectiveness of

the magistrate's order, though the magistrate or the court may by order stay the

effectiveness of a magistrate's order."

       {¶51} No motions to set aside the magistrate's orders were filed. We conclude

appellant's argument regarding the necessity of an evidentiary hearing is without merit.

       {¶52} Appellant also argues the trial court's interpretation of the settlement

agreement was in error.

       {¶53} Appellant argues the spousal support award of $350.00 then $300.00

following the minor child's emancipation was a per month agreement, not a per week

agreement. This court, as well as the trial court, is blessed with having the original

settlement agreement to review: Memorandum Entry filed November 17, 2009.                 In
Fairfield County, Case No. 10-CA-46                                                       8


reviewing this document, approved by appellant, it is clear that the spousal support

award was to be per week. The word "month" is clearly crossed out and the parties

initialed the change.

       {¶54} Appellant argues the pension distribution (ING Account and Buckeye

Ready Mix Profit-Sharing Plan) was in error. The settlement agreement clearly included

the following: "she gets ING acct.***split the profit sharing."

       {¶55} Appellant also argues the following life insurance decision was not

included in the settlement agreement:

       {¶56} "XV. LIFE INSURANCE: The Defendant shall pay for and maintain all life

insurance on his life which is available through his present or future employers,

including any optional life insurance available on his life, and shall name the Plaintiff as

sole and exclusive beneficiary on any and all said life insurance on his life which is

available through his place of employment and Defendant shall be required to comply

with this life insurance provision until Plaintiff's death."      Judgment Entry Decree of

Divorce filed July 21, 2010.

       {¶57} However, the settlement agreement clearly sets forth the following:

       {¶58} "He carry her as sole beneficiary on life insurance available through work

– she can also purchase extra life insurance on his life and he will cooperate."

       {¶59} We find the trial court's interpretation of the settlement agreement was

correct.

       {¶60} Assignment of Error I is denied.
Fairfield County, Case No. 10-CA-46                                                     9


                                            II

       {¶61} Appellant claims the trial court erred in failing to do an independent

analysis on spousal support. We disagree.

       {¶62} On the issue of spousal support, the trial court stated the following in its

July 21, 2010 judgment entry decree of divorce:

       {¶63} "7. The division of property is fair, just and equitable and further, the

division of marital property has been made in compliance with O.R.C. §3105.717. Each

party, by his/her signature on the Memorandum Entry, hereby waives any right to

findings of fact and conclusions of law regarding property and debt division matters,

spousal support matters and other matters required by the Ohio Revised Code and

therefore, this Court is not required to make such findings of fact and conclusions of law

as required by the Ohio Revised Code. This Court finds that the division of property

and debts as set forth herein is equitable within the meaning of the Ohio Revised Code

based upon the testimony at the final trial and the signatures of both parties on the

Memorandum Entry.

       {¶64} "IV. SPOUSAL SUPPORT: ***The spousal support obligation of the

Defendant set forth herein shall be modifiable and subject to the continuing jurisdiction

of this Court.***Please see attached Fin Plan which sets forth how this Court arrived at

spousal support amount of $300.00 per week, plus processing charge as set forth

herein."

       {¶65} We find the analysis called upon by the trial court was to interpret the

parties' settlement agreement. The "Fin Plan" analysis was mere "window dressing" to

a spousal support order that the trial court found to be enforceable and consistent with
Fairfield County, Case No. 10-CA-46                                               10


the settlement agreement submitted to the trial court during the November 17, 2009

hearing.

      {¶66} Assignment of Error II is denied.

      {¶67} The judgment of the Court of Common Pleas of Fairfield County, Ohio,

Domestic Relations Division is hereby affirmed.

By Farmer, P.J.

Wise, J. and

Edwards, J. concur.




                                            s/ Sheila G. Farmer__________________




                                           _s/ John W. Wise___________________




                                           _s/ Julie A. Edwards________________

                                                          JUDGES

SGF/sg 314
Fairfield County, Case No. 10-CA-46                                                11


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



DEBRA M. WAITES                             :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :           JUDGMENT ENTRY
                                            :
ROBERT L. WAITES                            :
                                            :
       Defendant-Appellant                  :           CASE NO. 10-CA-46




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio, Domestic Relations

Division is affirmed. Costs to appellant.




                                                s/ Sheila G. Farmer__________________




                                            _s/ John W. Wise___________________




                                            _s/ Julie A. Edwards________________

                                                              JUDGES
