COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59669, 60469 JO-ANNE MARSHALL : : : PLAINTIFF-APPELLEE/ : JOURNAL ENTRY CROSS-APPELLANT : v. : AND : JOHN D. MARSHALL : OPINION : : DEFENDANT-APPELLANT/ : CROSS-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 192044 JUDGMENT: AFFIRMED, IN PART; REVERSED, IN PART. (Motion No. 09597) DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee/Cross- Appellant, Joanne D. Marshall: JOSEPH G. STAFFORD 602 The Park Building 140 Public Square Cleveland, Ohio 44113 For Defendant-Appellant/Cross- Appellee, John D. Marshall: JOYCE E. BARRETT JAMES P. REDDY, JR. 800 Standard Building Cleveland, Ohio 44114 JOHN D. MARSHALL 19 North Court, Apt. 132 Pittsburgh, PA 15237 -2- SPELLACY, J.: On May 19, 1979, plaintiff-appellee/cross-appellant Jo-Anne M. Marshall ("appellee") and defendant-appellant/cross-appellee John D. Marshall ("appellant") were married in Ridgewood, N.J. Three children were born as issue of said marriage, to-wit: Adria, d.o.b. April 1, 1980; Ashley, d.o.b. May 1, 1983; and David, d.o.b. July 30, 1985. On February 1, 1989, appellee filed a complaint for divorce. The trial court scheduled a full trial for January 5, 1990 in order to dispose of all issues raised in appellee's complaint and appellant's answer. However, on January 5, 1990, the parties entered into negotiations and then prepared a handwritten in- court agreement. The in-court agreement was signed by both parties and their respective attorneys. On January 8, 1990, the trial court commenced a trial. However, after appellee's counsel's opening statement, appellant informed the court that he did not want to proceed to trial. The trial court then conducted a hearing regarding the in-court agreement. At the hearing, appellant testified that he and appellee did enter into the in-court agreement. He stated that he understood the terms of the in-court agreement and that it resolved all issues involved. Appellee testified that she was in agreement with the terms of the in-court agreement./1\ /1\ Both parties indicated that they had no concerns, whatsoever, about the exclusion of her having custody of the children and a clause regarding the termination of alimony. -3- On January 19, 1990, the trial court issued its judgment entry granting appellee a divorce from appellant. In the divorce judgment entry, the trial court explicitly found that the in- court agreement, in which the parties entered, was fair, just and equitable. Thus, the trial court incorporated the in-court agreement into the divorce decree. On the same day that the trial court issued its judgment entry of divorce, appellant, through new counsel, filed a motion to set aside the in-court agreement and to set the matter for trial. Appellant argued that the in-court agreement was signed under conditions of duress and later confirmed without his having adequate time to review and understand the terms thereof. Appellant also claimed that the in-court agreement did not contain all the terms necessary to constitute a full agreement between the parties. On February 15, 1990, appellant filed a motion to consider his motion to set aside the in-court agreement as a motion for new trial pursuant to Civ. R. 59. Appellant asserted that at the time his motion to set aside the in-court agreement was filed, his new counsel was unaware that the final divorce decree had just been previously issued. In support of his motion, appellant attached a copy of the trial court's notice for a hearing concerning a new trial. On February 20, 1990, appellant filed a timely Notice of Appeal from the final judgment entry of divorce, which was -4- entered on January 19, 1990. Appellant's appeal was assigned Case No. 59669. On February 22, 1990, the trial court issued a judgment entry in which it held that appellant's motion to set aside the in-court agreement was to be considered as a motion for a new trial, pursuant to Civ. R. 59. Commencing on March 26, 1990, the trial court conducted a hearing regarding appellant's motion for a new trial and several other motions filed by both parties. Appellant was the first witness to testify at the hearing. Appellant testified that on January 5, 1990, he sat in the courtroom hallway from 9:00 A.M. until 6:30 P.M., while negotiations between his attorney and appellee's attorney took place. At around 5:00 P.M., appellant was approached by opposing counsel who yelled at him and threatened him that he would get him fired if the case went to trial. Appellant admitted that he signed the in-court agreement on January 5, 1990, but he claimed that he never read it completely. Appellant stated that at the January 8, 1990 hearing, neither the in-court agreement was read into the record nor was there any inquiry into whether it was fair, just and equitable. According to appellant, the in-court agreement was not fair, just and equitable. Appellant provided further testimony regarding his annual income, his expenses, and the marital assets. Appellant -5- presented said evidence in order to demonstrate that the final divorce decree did not comport with the in-court agreement. Appellant then called appellee to testify as if on cross- examination. During cross-examination of appellee, appellant's counsel inquired into the value of the marital home, the household goods and furnishings and other marital assets. The first witness appellee called to testify was Linda Garrett Beebe, appellant's attorney who represented him during the negotiations and the signing of the in-court agreement. Linda Beebe testified that she and appellee's counsel participated in negotiations on January 5, 1990. For the entire day, the parties' attorneys made proposals and counterproposals and then presented them to their respective clients. By 4:00 P.M., the trial court judge informed the attorneys that if a settlement of the case was not reached, they should be prepared to go to trial. Linda Beebe stated that she and appellee's counsel eventually prepared a written agreement. The first four pages were written by appellee's counsel while the last four pages were written by her. According to Linda Beebe, appellant either signed or initialled every page of the in-court agreement. She recalled appellant having difficulty with reading the handwriting in the in-court agreement, but she did not recall appellant not understanding the contents. Linda Beebe did not recall appellee's counsel threatening appellant or coercing him into signing the in-court agreement. -6- Linda Beebe further testified that on January 8, 1990, the trial court judge indicated that he was going to set aside the in-court agreement and proceed to trial. The trial court judge had a problem with not being present when the parties signed the document. After the trial commenced with appellee's counsel's opening statement, appellant informed Linda Beebe that he did not want to proceed to trial. According to Linda Beebe, the trial court judge asked the parties whether there was an agreement, whether they understood the terms of the agreement, and whether they wanted a divorce. She stated that the matter became an uncontested adjudication of the issues. Appellee testified on her own behalf that on January 5, 1990, negotiations took place for the entire day. Appellee recalled that at approximately 5:00 P.M., she and appellant were given an opportunity to read and review the in-court agreement and then sign it if they approved. According to appellee, there were no threats made on January 5, 1990. Appellee further testified that on January 8, 1990, just prior to trial, she observed appellant reviewing the in-court agreement for about an hour. Appellee then provided testimony concerning the marital assets and the contents of the in-court agreement. Appellee next called appellant as if on cross-examination. Appellant claimed that there were at least twenty inconsistencies between the in-court agreement and the final divorce journal -7- entry. The inconsistencies ranged from how payments for child support were to be made to the amount of alimony awarded. Appellant pointed to several examples of how the language in the in-court agreement differed from that set forth in the divorce decree. On April 9, 1990, the trial court denied appellant's motion to set aside the in-court agreement. In the same judgment entry, the trial court also denied appellant's motion for a new trial. After the trial court's ruling on April 9, 1990, several additional post-decree motions were filed by both parties. On July 6, 1990, appellant filed a motion for child support exemptions pursuant to R.C. 3113.21(B)(10). Appellant claimed that he was entitled to dependency exemptions for income tax purposes for the three minor children. On August 13, 1990, the trial court granted appellant's motion for child support exemptions. Thus, appellant was entitled to claim all of the minor children as dependents for income tax purposes. Appellee filed a timely notice of appeal from the trial court's August 13, 1990 order. Appellee's appeal was assigned Case No. 60469. On October 30, 1990, this court, sua sponte, consolidated Case Nos. 59669 and 60469 for hearing and disposition. Appellant raises the following assignments of error: I. THE TRIAL COURT ERRED IN JOURNALIZING THE JUDGMENT ENTRY SUBMITTED BY APPELLEE'S -8- COUNSEL WHICH DID NOT COMPORT WITH THE TERMS OF THE ALLEGED IN-COURT AGREEMENT. II. THE TRIAL COURT ERRED IN REDUCING TO JUDGMENT A PURPORTED AGREEMENT OF THE PARTIES IN THE ABSENCE OF ANY EVIDENCE THAT THE PARTY IS ENTERING SAID AGREEMENT OF HIS FREE WILL, FREE OF ANY DURESS OR COERCION, THE ABSENCE OF ANY EVIDENCE WITH RESPECT TO PRESENT INTENTION TO CONFIRM THE AGREEMENT, AND IN THE ABSENCE OF AGREEMENT ON THE TERMS OF CUSTODY. III. THE TRIAL COURT ERRED IN ORDERING APPELLANT- HUSBAND TO PAY ALIMONY AND CHILD SUPPORT WHICH, IN THE AGGREGATE, EXCEED THE MAXIMUM LIMITATIONS PROVIDED UNDER FEDERAL LAW WITH RESPECT TO GARNISHMENT. IV. IT WAS ERROR AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE FOR THE TRIAL COURT TO DENY APPELLANT'S MOTION TO SET ASIDE IN-COURT AGREEMENT AND FOR NEW TRIAL. Appellee raises the following assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW IN AWARDING THE APPELLANT THE INCOME TAX DEPENDENCY EXEMP- TIONS FOR THE PARTIES' MINOR CHILDREN. Before we consider the substantive merits of the issues raised in the parties' assignments of error, we will address appellee's motion to dismiss which was filed in this court on October 29, 1990. In her motion to dismiss, appellee argues that appellant's appeal was untimely and that his assignments of error do not address the trial court's judgment from which he is appealing. In the instant case, the trial court issued its judgment entry of divorce on January 19, 1990. On the same day, appellant filed a motion to set aside the in-court agreement and to set the -9- matter for trial. Although appellant's motion was not captioned as a motion for a new trial, the trial court subsequently considered it as such. We are in agreement with the trial court that appellant's motion filed on January 19, 1990 was, in essence, a motion for new trial pursuant to Civ. R. 59. On February 20, 1990, appellant filed a timely notice of appeal from the trial court's judgment entry of divorce issued on January 19, 1990. After appellant's notice of appeal was filed, the trial court conducted a hearing on several post-decree motions, including appellant's motion for a new trial. On April 9, 1990, the trial court denied appellant's motion for a new trial. It is a general rule that when an appeal is pending, the trial court is divested of jurisdiction except to take action in aid of the appeal. Powell v. Turner (1984), 16 Ohio App. 3d 404, paragraph one of the syllabus. A trial court is without power to grant relief under Civ. R. 59 while an appeal is pending. Id., See, also Majnaric v. Majnaric (1975), 46 Ohio App. 2d 157, paragraph one of the syllabus. We find that the trial court did not have jurisdiction to rule upon appellant's motion for new trial after appellant filed his notice of appeal from the final divorce decree. Accordingly, we conclude that the trial court's denial of appellant's motion for a new trial, issued on April 9, 1990, is a nullity. A review of appellant's assignments of error indicates that only his fourth assignment pertains to the trial court's denial -10- of his motion for a new trial. Appellant's first, second and third assignments of error challenge the propriety of the trial court's judgment entry of divorce, which incorporated the in- court agreement. Therefore, we grant appellee's motion to dismiss as it relates to appellant's fourth assignment of error. Appellant's fourth assignment of error is hereby dismissed. We will now address the assignments of error presented by both parties. Appellant's first two assignments of error will be addressed together since they both pertain to the trial court's journaliza- tion of the final divorce entry. Appellant initially argues that the judgment entry journalized by the trial court contained in excess of twenty examples of where it differed from the in-court agreement. Appellant claims that the trial court erroneously substituted its judgment for that of the parties' intentions. An in-court agreement of the parties concerning issues raised in divorce proceedings, and adopted by the trial court as its judgment, is enforceable by the trial court and may be incorporated into the judgment entry. Holland v. Holland (1970), 25 Ohio App. 2d 98, paragraph one of the syllabus. An in-court settlement agreement is enforceable by the trial court even where one party intended to include additional provisions or limita- tions which were not part of the in-court agrement. Id. at paragraph two of the syllabus. -11- In the instant case, appellant directs up to approximately twenty-four discrepancies between the terms of the in-court agreement and the terms of the judgment entry of divorce. Upon a careful review of both the in-court agreement and the judgment entry incorporating said agreement, we find that the judgment entry of divorce properly reflected the agreement of the parties regarding the division of property, alimony and child support. The discrepancies to which appellant points do not materially alter the in-court settlement agreement. Clearly, the judgment entry of divorce merely clarified the terms of the in- court agreement and provided language that is commonly utilized in divorce proceedings. We cannot say that the trial court included additional, unrecorded provisions which were not agreed to by the parties. We find no significant terms that went beyond the scope of the in-court agreement. Therefore, we must hold that the trial court did not err in journalizing what had been agreed to by the parties. Appellant next argues that the trial court erred in journal- izing the judgment entry of divorce in the absence of any evi- dence that he entered into the in-court agreement of his own free will. Generally, an in-court agreement will not be vacated unless the party challenging said agreement demonstrates that it was unjust, unfair or inequitable. See, Bauer v. Bauer (Apr. 2, 1981), Cuyahoga App. No. 42805, unreported. The trial court will -12- not vacate the in-court agreement when it was voluntarily entered into with full knowledge of the terms of the agreement. Thomas v. Thomas (1982), 5 Ohio App. 3d 94. In the instant case, appellant explicitly testified that he and appellee arrived at an agreement as to all the issues sur- rounding the division of property, alimony, child support and child custody. Appellant further testified that he understood the terms of the agreement and that he had no questions regarding it. Although appellant contends that he reluctantly entered into the in-court agreement, we find that it was voluntary on his part and was with full knowledge of the terms of the agreement. Cf. Thomas, supra; See, also Buza v. Buza (Feb. 25, 1981), Summit App. No. 9866. Moreover, appellant was adequately represented throughout the proceedings, and there is nothing in the record to indicate that appellant's counsel failed to properly represent him. For the foregoing reasons, we find that the judgment entry of divorce does reflect what the parties were agreeing to. Thus, we conclude that the trial court did not err in journalizing its judgment entry of divorce and incorporating the in-court agreement. Appellant's first and second assignments of error are without merit and are overruled. Appellant contends in his third assignment of error that the trial court erred in ordering him to pay alimony and child -13- support which exceed the maximum limitations. Appellant claims that his alimony and child support obligations exceeded the sixty percent maximum limitation pursuant to 15 U.S.C. 1673(b)(2)(A)./2\ At the hearing regarding appellant's motion for new trial, appellant admitted that his monthly net income was approximately $7,607./3\ A review of the judgment entry of divorce reveals that appellant's monthly obligation for child support and alimony was $3,195. Based upon these figures, we find that appellant's monthly obligations do not exceed the maximum limitations mandated by 15 U.S.C. 1673(b)(2)(A). Appellant's third assignment of error is not well taken and is overruled. For the foregoing reasons, we affirm the trial court's judgment entry of divorce. Appellee filed a timely notice of appeal from the trial court's order awarding appellant income tax dependency exemptions for the minor children. Appellee's appeal was assigned Case No. 60469, and she subsequently raised one assignment of error. In her sole assignment of error, appellee challenges the trial court's order awarding appellant income tax dependency exemptions for the minor children. Appellee asserts that the /2\ Ohio has specifically adopted 15 U.S.C. 1673(b) in R.C. 3113.21. /3\ In his appellate brief, appellant claims that his monthly net income was $5,038.00. However, considering the numbers pro- vided in his appellate brief, we find that appellant miscalcu- lated his monthly net income. Based upon appellant's figures, we conclude that his monthly net income was about $7,607.00. -14- trial court failed to make a finding that there was a substantial change of circumstances or that the dependency exemptions were in the best interests of the minor children. A trial court has the authority to allocate a child dependency deduction to the non-custodial parent. Hughes v. Hughes (1988), 35 Ohio St. 3d 165. An award of the dependency exemption is based primarily upon the consideration of the best interest of the children and should be awarded in order to maximize the assets available for child support. Bobo v. Jewell (1988), 38 Ohio St. 3d 330. If a trial court exercises the authority to allocate a child dependency deduction, the record must show that the interests of the children have been furthered. Id. at 332. In the instant case, appellant filed a post-divorce decree motion for child support exemptions pursuant to R.C. 3113.21(B)- (10). R.C. 3113.21(B)(10) provides the trial court with the authority to determine which parent may claim the dependency exemption when it modifies, reviews or reconsiders a child support order. A trial court may modify the dependency exemption only after finding a substantial change in circumstances and showing that it is in the best interest of the children. Hoban v. Hoban (July 11, 1990) Wayne App. No. 2551, unreported; See, also Bobo, supra. The trial court in this case made no finding that there had been a change in circumstances or that the dependency exemptions were in the best interests of the children. We find that the -15- trial court erred in awarding appellant the dependency exemptions without such a showing. Appellee's assignment of error is well taken and is sustained. Trial court's judgment entry of divorce is affirmed. Trial court's order awarding appellant the dependency exemptions is reversed. -16- It is ordered that appellee recover of appellant her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, P.J., ANN MCMANAMON, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .