COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60155 MARGUERITE M. STEIN, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION PETER O. STEIN, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 19, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Domestic Relations : Court : Case No. D-175,752 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Marguerite M. Stein, Pro Se 23548 Westchester Drive North Olmsted, Ohio 44070 For defendant-appellant: Randall M. Perla 19443 Lorain Road Fairview Park, Ohio 44126 -2- NAHRA, P.J.: Peter O. Stein appeals from the trial court's judgment which ordered him to pay 25% of the proceeds of a lease into his son's trust. For the reasons set forth below, we affirm the judgment of the trial court. Peter O. Stein and Marguerite M. Stein had one son, Charles Stein. They were divorced by journal entry filed on July 29, 1987. The journal entry incorporated the terms of the Steins' separation agreement. The entry also provided as follows: The court further finds that the parties have agreed that the child, Charles John Stein, owns 25% of the assets of the Bradley Supply Co. subject to the limitations as set forth in the separation agreement. That Peter Stein is a majority or sole shareholder of the Bradley Supply Co., hereby acknowledges that the 25% interest of Charles John Stein shall constitute a lien upon the real estate located at 30808 Center Ridge Road, Westlake, Ohio, and described as follows: (description omitted) (emphasis added). * * * IT IS FURTHER ORDERED ADJUDGED AND DECREED that the child, Charles John Stein, is entitled to 25% of the proceeds of the sale of the assets of the Bradley Supply Co. subject to the provision of the separation agreement. Therefore a lien on 25% of the real estate owned by the Bradley Supply Co. located at 30808 Center Ridge Road, Westlake, Ohio, and described as follows: (description omitted) is herewith established in favor of Charles John Stein and that this decree shall operate as a lien thereon and the clerk is directed to certify so much as is necessary of this decree to effectuate said lien to be recorded by the Cuyahoga County Recorder. Paragraph 7 of the separation agreement provided as follows: Minor son's interest in the assets of Bradley Supply Co. -3- A - It is agreed that the minor child of the parties, Charles J. Stein, age 14, DOB 10-27-72 shall be the owner of 25% of all assets of Bradley Supply Co. 1 - In the event that all of the assets of Bradley Supply Co. are sold as a going business then in that event, Marge Stein, mother, shall be designated as Trustee, Guardian, and 25% of the net sale price of land and business shall be placed in the trust fund. 2 - In the event that only the land is sold and the business is liquidated, then, in that event, 25% of the net proceeds from the sale of the land shall go to the trust fund and the husband shall retain as his own, the net proceeds from the inventory and equipment liquidation with no claim of the Wife or Trustee. All business debts, accounts payable, taxes, etc, except any sums owned on original debts to the Cass and Stein family shall be paid out of the liquidation before any sum is payable to Husband. (Emphasis added.) Paragraph 7A of the separation agreement provided as follows: 7A Lien for Public Record: The interest of the minor child in the assets of the Bradley Supply Co. shall be spelled out in the final judgment entry - or separation agreement and filed with the County Recorder to perfect the lien of the minor child subject to the liens of the Cass family and Charles R. Stein and subject to the provisions as set forth in paragraph 7 above. On March 18, 1988, Peter Stein entered into purchase and lease agreements. The purchase agreement provided for the sale of the assets of Bradley Supply Co. It also provided for the sale of the real estate five years later. The lease agreement was for a five year lease. The lease provides for rent payments to be made to the Bradley Supply Co. There is no provision requiring the funds to be paid into escrow. Appellant refers to a mortgage on the lease proceeds which was also apparently filed on March 18, 1988. The mortgage document is not in the record. Instead, there is a letter from -4- the attorney for appellant's mother, stating that the mortgage existed, with appellant as mortgagor and his mother as mortgagee. The letter states that appellant agreed to pay lease proceeds into an escrow account bearing his name; with his sisters as escrow agents; with the proceeds to be held until all obligations due from appellant to his mother have been satisfied; and "the only monies to be paid out of the Escrow Account prior to Mortgagee being paid in full are to be for expenses incurred by Mortgagor; i.e., taxes, professional fees for services rendered on behalf of Mortgagor, etc.". Marguerite Stein filed a motion to show cause due to Peter Stein's failure to pay 25% of the lease proceeds to his son's trust account as provided by the separation agreement. A referee held a hearing and issued a report recommending that the motion be granted. The referee found that the separation agreement "is clear on its face that the child owns 25% of the assets of the Bradley Supply Company". The referee also found that "the two conditions subsequent to the child's ownership which would divest the child [sic] ownership did not occur, and therefore there is no reason why he should not benefit from his ownership of 25% of the company's rental income". Peter Stein filed objections to the report. The court overruled the objections, and approved the report. Peter Stein brought this timely appeal of that decision. His sole assignment of error reads as follows: -5- THE TRIAL COURT ERRED IN ORDERING THE DEFENDANT- APPELLANT TO PAY TO THE MINOR CHILD'S TRUST FUND 25% OF "RENTAL PROFITS RECEIVED" FROM THE RENTS COLLECTED ON THE REAL ESTATE OF THE BRADLEY SUPPLY COMPANY IN THAT SAID ORDER IS IN CONFLICT WITH THE PARTIES SEPARATION AGREEMENT AS INCORPORATED INTO THE DIVORCE DECREE AND CREATES AN IMPOSSIBILITY OF PERFORMANCE BY THE DEFENDANT-APPELLANT. Appellant claims that he does not owe 25% of the lease proceeds to his son's account because the real estate was not sold. He claims that the 25% payment was premised on a sale only, and that he owes nothing for a lease. The separation agreement, incorporated into the court's journal entry granting a divorce, states that appellant's son owns 25% of the assets of Bradley Supply Company. It also makes separate provisions for two contingencies, both premised upon the sale of the real estate of the company. In this case, the property has been leased for a five-year term. Accordingly, the lease proceeds constitute an asset of the Bradley Supply Company. Since Charles Stein is owner of 25% of those assets, he is entitled to 25% of the lease proceeds. Appellant also argues that he should not have to pay the lease proceeds into the trust fund because of impossibility. Appellant claims that the lease proceeds are being paid into an escrow account which precludes payment to the trust, and that the funds are subject to a mortgage. Appellant cites no legal authority in support of his argument. -6- In London & Lancashire Indemnity Co. v. Bd. of Comm'rs. of Columbiana Cty. (1923), 107 Ohio St. 51, the Ohio Supreme Court held in paragraph three of the syllabus as follows: An express contract to do an act which is possible in the nature of things and not contrary to law will not be discharged by subsequent events or rules of law which do not render performance physically impossible, but merely make performance more burdensome, expensive or difficult, nor where such subsequent events or rules of law might reasonably have been contemplated. In this case, the journal entry of divorce incorporated the separation agreement, which explicitly set forth that appellant's child owned 25% of the assets of Bradley Supply Company, and was entitled to a lien on the property. Appellant entered into the lease after the divorce. The mortgage, with appellant's mother as mortgagee, was also filed after that divorce. The escrow account, with appellant's sisters as agents, was also apparently created after the divorce. It apparently provides that the escrow monies can be paid out for appellant's "expenses". The actual terms of the mortgage and the escrow agreement do not appear in the record. Appellant has failed to show that his payment of 25% of the lease proceeds to the trust fund is impossible or that he did not contemplate these subsequent events. Neither the mortgage nor lease existed at the time of the judgment entry which required appellant to pay into his son's trust. Also, the terms of those instruments are not in the record and do not appear to preclude payment. -7- Appellant's assignment of error is overruled. Affirmed. Appellant's assignment of error is overruled. Affirmed. 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. CORRIGAN, JOHN F., J., and *ECONOMUS, J., CONCUR. (*SITTING BY ASSIGNMENT: Judge Peter C. Economus of the Mahoning County Common Pleas Court.) JOSEPH J. NAHRA PRESIDING 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. .