COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 66439 & 66440 FREDERICK C. DUBINSKY : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION BARBARA F. DUBINSKY : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 9, 1995 CHARACTER OF PROCEEDING: Civil appeal from C.P. Div. Domestic Relations Case No. D-208797 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARSHALL J. WOLF Wendy S. Howbaker Wolf and Akers 1515 East Ohio Building 1717 East Ninth Street Cleveland, Ohio 44114 For Defendant-Appellant: MARGARET KAZDIN STANARD DEANNE L. ROBISON Reid, Berry & Stanard 1300 Illuminating Building 55 Public Square Cleveland, Ohio 44113 - 2 - HARPER, J.: In this divorce action, defendant-appellant Barbara F. Dubinsky ("Barbara") timely appeals from three judgment entries of the Cuyahoga County Common Pleas Court, Domestic Relations Division as follows: (1) an October 8, 1993 statement of findings of fact and conclusions of law in which the trial court overruled Barbara's motion for rescission of the "Outline of Settlement" agreement entered into by Barbara and plaintiff-appellee Frederick C. Dubinsky ("Frederick") during the course of litigation; (2) an October 8, 1993 statement of findings of fact in which the trial court determined it was under no obligation to determine the fairness, justness or equitability of the "Outline of Settlement" agreement; and (3) an October 15, 1993 divorce decree which incorporated by reference the "Outline of Settlement" agreement. The circumstances surrounding this case are not in dispute. Barbara and Frederick were married on September 2, 1979. Prior to their marriage, however, Barbara and Frederick, on August 23, 1979, jointly executed an antenuptial agreement. The relevant terms of the antenuptial agreement stated as follows: (1) Except as hereinafter provided each party is hereby barred from, and hereby releases and relinquishes to the other party... all rights, interests and claims whatsoever which may in any manner arise or accrue to either under the law of the State of Ohio or that of any other state or foreign country by virtue of said marriage in and to the estate of his or her spouse and in and to all property of such spouse, of whatsoever kind and nature and wheresoever situated and whether now owned or hereafter acquired by such spouse.... - 3 - (2) Each party hereto shall have, hold and maintain full ownership and control of, and shall have the full and absolute right to control and dispose of, any and all of his or her property, of whatsoever kind and nature and whether now owned or hereafter acquired, in the same manner as if said marriage had not been entered into.... (11) This Agreement shall be effective upon the performance of a valid marriage ceremony between the parties hereto, and shall be binding upon, and shall inure to the benefit of, each of the parties hereto and their respective devisees, legatees, executors, administrators, heirs, and successors and assigns. The antenuptial agreement contained two attached exhibits, viz., (1) Exhibit A which was a statement of Frederick's assets prior to the marriage; and (2) Exhibit B which was a statement of Barbara's assets prior to the marriage. Pursuant to Exhibit A, Frederick possessed assets worth in excess of one million dollars while, pursuant to Exhibit B, Barbara possessed assets of less than twenty thousand dollars. On March 5, 1991, Frederick filed a complaint for divorce against Barbara thus commencing the instant case. In June, 1993, in an attempt to reach a settlement, counsel for both parties negotiated and wrote the "Outline of Settlement" agreement which is the subject of the case at bar. At this time, Barbara was undergoing psychological counseling with Marcia Christian, Ph.D. and, for this reason, counsel for Barbara, viz., Attorney John Bosco, arranged for Barbara and himself to meet with Dr. Christian on June 7, 1993 to discuss the terms of the "Outline of Settlement" agreement. One day later, on June 8, 1993, Barbara and her counsel met in the trial court with Frederick and his - 4 - counsel. At this meeting, John Bosco orally presented the terms of the proposed "Outline for Settlement" agreement to Barbara. Thereafter, on June 11, 1993, Barbara met again with Dr. Christian. On June 14, 1993, after the foregoing two meetings with Dr. Christian, Barbara appeared at a hearing in the Domestic Relations Division with counsel present. Frederick and his counsel were also present. At that time, both parties mutually agreed to modify certain terms of the "Outline of Settlement" agreement. The modifications were handwritten and, thereafter, each page of the agreement was initialed by both Barbara and Frederick. Barbara and Frederick then both signed and executed the "Outline of Settlement" agreement and a copy of the agreement was submitted to the trial judge. In addition, John Bosco, counsel for Barbara, questioned Barbara during the hearing with respect to her execution of the "Outline of Settlement" agreement. The following relevant colloquy occurred: Q. Barbara, state your full name and address? A. Barbara Finlay Dubinsky, F-i-n-l-a-y. 436 Walters Street, Chagrin Falls, Ohio 44023. Q. You entered into an agreement today of a settlement? A. Yes. Q. Is your signature on page 3? A. Yes. Q. Do you believe the agreement is fair, just and equitable? A. Yes. - 5 - Q. And you have had a continued opportunity to discuss it with myself and Ms. Zito? A. Yes. Q. Do you agree to be bound by the terms of that agreement? A. Yes. Thereafter, the Domestic Relations Division adopted the "Outline of Settlement" agreement and indicated that the agreement would be incorporated into the final divorce decree. The terms of the "Outline of Settlement" agreement provided, inter alia, as follows: (1) Frederick agreed to obtain a loan for the sum of eighty-five thousand dollars ($85,000.00) and pay this amount to Barbara; (2) Frederick agreed to pay the sum of twenty- five thousand dollars ($25,000.00) from his IRA and 401K accounts to Barbara; (3) Frederick agreed to pay Barbara the sum of one thousand dollars ($1,000.00) per month for forty- eight months; and (4) Barbara was permitted to identify and remove all her personal items from Frederick's home. Thereafter, on June 30, 1993, Barbara, after discharging her counsel, obtained new counsel and filed a motion to rescind the "Outline of Settlement" agreement. In her motion, Barbara claimed (1) she failed to fully comprehend the terms of the agreement since, prior to signing the agreement on June 14, 1993, she was not provided with a written copy of the agreement and her former counsel failed to explain the terms of the agreement; (2) she did not voluntarily execute the "Outline of Settlement" agreement due to experiencing extreme financial and emotional - 6 - distress and, in addition, she was unduly influenced by her former counsel who threatened to resign from the instant case unless Barbara executed the agreement; and (3) the terms of the "Outline of Settlement" agreement were so grossly inequitable as to be unconscionable and contrary to law. Barbara also filed a brief in support of her motion to rescind arguing, inter alia, that Dr. Christian believed Barbara lacked the emotional and intellectual capacity to enter into the "Outline of Settlement" agreement on June 14, 1993. In Dr. Christian's affidavit, which was attached to Barbara's support brief, Dr. Christian stated in relevant part as follows: 9. It is further my opinion that Barbara Dubinsky was extremely dependent upon her counsel at the time she signed the "Outline of Settlement" on June 14, 1993, and was incapable of exercising independent judgment with regard to the terms thereof, and was incapable of evaluating the proposal logically and without regard to her feelings of powerlessness and terror; 10. That as a result of Barbara Dubinsky's psycho- logical condition, with regard to the "Outline of Settlement", she acted pursuant to and in complete reliance upon the instructions of her attorney.... On September 20, 1993, the Domestic Relations Division conducted a hearing with respect to Barbara's motion to rescind the "Outline of Settlement" agreement. Dr. Christian testified on behalf of Barbara attesting that on June 7, 1993, Barbara was concerned, clear, nervous but not confused. However, Dr. Christian further testified that on June 11, 1993, Barbara was panicky following the outcome of the proceedings held on June 8, 1993. Dr. Christian also testified that on June 17, 1993, - 7 - Barbara was upset and angry about the June 14, 1993 proceedings in which she and Frederick executed the "Outline of Settlement" agreement. Barbara then testified she was under the care of a physician, Dr. Lawrence White, who had been treating her for depression utilizing medication. She denied having been hospitalized for any psychiatric condition. Most significantly, Barbara testified that at the June 8, 1993 trial proceeding, John Bosco orally presented to Barbara the proposed terms of the "Outline of Settlement" agreement, viz., (1) the cash settlement; (2) the spousal support; and (3) the right to remove her personal items from Frederick's home. Barbara also testified that on June 8, 1993, John Bosco told her that if she refused to sign the "Outline of Settlement" agreement, he would resign as her attorney. Barbara also testified that she initialed every page of the agreement after the handwritten modifications had been made and that she signed the final page intending to execute the agreement. However, she stated that she would not have signed the agreement had her former counsel, John Bosco, not threatened to resign as her counsel. On October 8, 1993, the trial court issued a statement of findings of fact and conclusions of law effectively overruling Barbara's motion to rescind the "Outline of Settlement" agreement. The October 8, 1993 statement of findings of fact and conclusions of law stated in relevant part as follows: - 8 - Mrs. Dubinsky was clearly not mentally incompetent. There were no allegations of fraud....[citation omitted]. Defendant's allegations center around "undue influence" or "duress" around the time of the signing of the agreement and would appear to predicate that allegation upon statements of her counsel. It, however, would appear to the Court that counsel for the Defendant attempted valiantly to avoid undue influence and pressure. He arranged to raise the issue of settlement with Defendant and her psychologist. A number of days transpired in attempting to construct a settlement offer.... The court therefore holds that...Defendant has failed to sustain her prima facie burden of proof that the settlement agreement complained of was entered into while she was mentally incompetent, or was the result of fraud, undue influence or duress.... In addition, on October 8, 1993, the trial court journalized, upon Barbara's motion, a statement of findings of fact in which the court determined that it was not obligated to make an independent inquiry into the fairness, justness or equitability of the "Outline of Settlement" agreement. The court based this conclusion upon its belief that represented adults are free to contract without court interference. Barbara thereafter timely appealed from the October 8, 1993 judgment entries in Cuy. App. No. 66440. On October 15, 1993, the trial court entered the final divorce decree which incorporated the "Outline of Settlement" agreement by reference. The trial court noted in the divorce decree that it did make an independent inquiry into the equitability of the "Outline of Settlement" agreement stating in relevant part on page 2 as follows: - 9 - The court further finds that, during trial, the parties entered into an agreement, sworn to and acknowledged by each of them in open court, which agreement disposes of all other issues before this court. The court finds said agreement [the "Outline of Settlement" agreement]... just and equitable as to each of them.... Barbara then timely appealed from the divorce decree in Cuy. App. No. 64439. The cases were subsequently consolidated sua sponte in this appellate court. Appellant presents four assignments of error, i.e., one assignment of error in Cuy. App. No. 66439 and three assignments of error in Cuy. App. No. 66440, which shall be considered in logical order. This appellate court may not substitute its judgment for that of the Domestic Relations Division absent a showing that the Domestic Relations Division acted unreasonably, arbitrarily or unconscionably. Bisker v. Bisker (1994), 69 Ohio St.3d 608; Ellars v. Ellars (1990), 69 Ohio App.3d 712. Appellant's first and second assignments of error in Cuy. App. No. 66440 shall be considered together since both claim the trial court erred when it failed to grant Barbara's motion to rescind the "Outline of Settlement" agreement. These assignments of error follow: I. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S MOTION TO RESCIND THE IN-C0URT SETTLEMENT AGREEMENT THAT WAS ENTERED INTO WHILE DEFENDANT WAS MENTALLY INCOMPETENT. - 10 - II. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S MOTION TO RESCIND THE IN-COURT SETTLEMENT THAT WAS ENTERED INTO AS A RESULT OF FRAUD, UNDUE INFLUENCE OR DURESS. These assignments lack merit. A settlement agreement is a contract. Cf. Forstner v. Forstner (1990), 68 Ohio App.3d 367. A contract between husband and wife executed in contemplation of legal separation or divorce will be held to be unenforceable if such contract, at the time of execution, was executed while either the husband or wife were mentally incompetent or dominated by fraud, undue influence or duress. DiPietro v. DiPietro (1983), 10 Ohio App.3d 44; Young v. Young (1982), 8 Ohio App.3d 52. A party must prove execution of the contract occurred under any of the foregoing circumstances by clear and convincing evidence. DiPietro, supra. In her first assignment of error, Barbara claims she was mentally incompetent on June 14, 1993 when she signed the "Outline of Settlement" agreement. In Giurbino v. Giurbino (1993), 89 Ohio App.3d 646, 658, this appellate court articulated the criterion which must be demonstrated by clear and convincing evidence in order to prevail on a claim of mental incompetency to contract stating as follows: The proper test for mental competency to contract is whether the person claimed to be incompetent understood the nature of the transaction and the effects of his or her own actions. - 11 - In the case at bar, Barbara claimed in her motion for rescission that, at the time she executed the "Outline of Settlement" agreement, she was experiencing extreme financial and emotional distress. As noted supra, Dr. Christian attested in her affidavit that Barbara was incapable of exercising independent judgment and of logically evaluating the "Outline of Settlement" agreement on the day it as executed. However, Dr. Christian testified at the September 20, 1993 hearing that Barbara was initially concerned, clear, nervous but not confused on June 7, 1993. Dr. Christian further testified that Barbara was merely panicky on June 8, 1993 and upset and angry on June 17, 1993. Barbara testified at the September 20, 1993 hearing that she was taking prescribed medication for depression at the time she executed the "Outline of Settlement" agreement. Barbara did not, however, testify or claim at any time that she was unable on June 14, 1993 to understand the nature of the transaction and the effect of her own actions. Barbara admitted having never been hospitalized for mental disorder. In addition, the record demonstrates that Barbara's former counsel, John Bosco, questioned Barbara at the June 14, 1993 hearing upon which Barbara (1) admitted signing the "Outline of Settlement" agreement after having discussed it with her counsel; (2) stated she believed the "Outline of Settlement" agreement was fair, just and equitable; and (3) agreed to be bound by the terms of the "Outline of Settlement" agreement. - 12 - Based upon the foregoing evidence, it cannot be said Barbara proved by clear and convincing evidence that she did not understand the nature of the settlement proceedings and the resultant "Outline of Settlement" agreement and, furthermore, did not understand the effect of her own actions at the June 14, 1993 hearing. Giurbino, supra; DiPietro, supra. As the court stated in DiPietro, supra, at 49: A state of depression is not equivalent to mental incompetency. If agreements between husbands and wives could be set aside on the ground that one of the parties was severely depressed when he or she signed the agreement, separation agreements and other agreements executed by persons involved in dissolution or divorce proceedings would tumble like pins on a bowling alley. The trial court, therefore, did not abuse its discretion when it refused to grant Barbara's motion for rescission of the "Outline of Settlement" agreement based upon Barbara's claim of incompetence to contract. Appellant's first assignment of error in Cuy. App. No. 66440 lacks merit and is overruled. In her second assignment of error, Barbara claims that she was unduly influenced and defrauded by her former counsel, John Bosco, into executing the "Outline of Settlement" agreement while she, Barbara, was under economic and emotional duress. Since Barbara, however, failed to raise the issue of fraud in the trial court, she may not raise the issue on appeal to this court. Lin v. Reid (1983), 11 Ohio App.3d 232. The record, nevertheless, - 13 - fails to demonstrate the existence of a prima facie case of 1 fraud. Undue influence is defined in DiPietro, supra, at 46 as follows: The elements of undue influence are: (1) a susceptible party, (2) another's opportunity to influence the susceptible party, (3) the actual or attempted imposition of improper influence, and (4) a result showing the effect of the improper influence. Threats may be found to constitute duress when they overcome the will of the threatened person, remove the threatened person's capacity to act independently and cause the threatened person to perform an act which he or she is not legally bound to perform. Blodgett v. Blodgett (1990), 49 Ohio St.3d 243. In the case at bar, Barbara essentially claims in her second assignment of error that John Bosco's threat to resign as her counsel unless she signed the "Outline of Settlement" agreement constituted duress and undue influence thereby causing Barbara to execute the agreement. Barbara also claims that she was dominated by emotional and economic duress when she executed the "Outline of Settlement" agreement. 1 The elements of fraud are stated in Gaines v. Preterm- Cleveland, Inc. (1987), 33 Ohio St.3d 54, 55 and follow: (1) A representation or, where there is a duty to disclose, concealment of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance. - 14 - Initially, it is noted that a cause of action alleging duress will not prevail unless it is proven that such duress was the result of coercive acts of the opposite party. Blodgett, supra; Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103; Young v. Young (1982), 8 Ohio App.3d 52. In the case at bar, Barbara made no claim, nor does the record demonstrate, that the opposite party, Frederick, was the cause of her emotional or economic duress. More importantly, however, Barbara failed to demonstrate that John Bosco's threat to resign overcame her will and removed Barbara's capacity to act independently. Blodgett, supra. On the contrary, Barbara discharged John Bosco, retained new counsel and filed on June 30, 1993 her motion for rescission all within two weeks of executing the "Outline of Settlement" agreement. Such actions hardly support a claim that Barbara's will was so overcome that she lacked the capacity to independently act. In addition, as noted supra, at the June 14, 1993 hearing, Barbara clearly stated she discussed the "Outline of Settlement" agreement with her counsel, believed it to be equitable, and signed the agreement intending to be bound by it. In light of these statements, the record in this case argues more strongly for a conclusion that Barbara signed the "Outline of Settlement" agreement of her own free will rather than while under the domination of undue influence or duress. To be sure, the situation was stressful. The mere stress of a divorce proceeding, however, does not constitute duress or - 15 - undue influence. Based upon the foregoing analysis, it cannot be said that Barbara proved by clear and convincing evidence that her execution of the "Outline of Settlement" agreement was the result of undue influence, duress or fraud. Blodgett, supra; Maust, supra; DiPietro, supra; Young, supra. The trial court did not, therefore, abuse its discretion when it refused to grant Barbara's motion for rescission of the "Outline of Settlement" agreement based upon Barbara's claims of undue influence, fraud and duress. Appellant's second assignment of error lacks merit and is overruled. Appellant's third assignment of error in Cuy. App. No. 66440 and her sole assignment of error in Cuy. App. No. 66439 raise issues of equitability and unconscionability. These shall be considered together and follow: III. THE TRIAL COURT ERRED BY INCORPORATING THE "OUTLINE OF SETTLEMENT" AS ITS FINAL JUDGMENT ENTRY WHEN THE "OUTLINE OF SETTLEMENT" WAS INCOMPLETE AND DID NOT ENCOMPASS ALL OF THE ESSENTIAL TERMS. I. THE TRIAL COURT ERRED WHEN IT FAILED TO INQUIRE INTO THE FAIRNESS, JUSTNESS AND EQUITABILITY OF THE IN-COURT SEPARATION AGREEMENT. These assignments lack merit. In her third assignment of error, Barbara claims the trial court erred when it incorporated by reference the "Outline of Settlement" agreement into the final divorce decree since the agreement failed to include all the essential terms of an enforceable contract. In addition, Barbara argues the agreement was unconscionable since it failed to provide for an equitable - 16 - distribution of property. In her final assignment of error which follows assignment of error three, supra, Barbara claims the trial court erred when it failed to inquire into the equitability of the "Outline of Settlement" agreement. It is first noted that Barbara failed to allege in the trial court that the "Outline of Settlement" agreement lacked all the essential terms of an enforceable contract. In accordance with Lin, supra, she may not, therefore, raise the issue for the first time in this appellate court. Nevertheless, Barbara failed to demonstrate in her appellate brief just exactly what essential terms were lacking in the "Outline of Settlement" agreement. On the contrary, she states in her appellate brief at page 16 that since Frederick received 90 per cent of the property, the agreement, therefore, "failed to provide all of the essential terms for an equitable division of property." This claim does not raise the issue of contract formation but, rather, raises the issue of equitability which shall be next considered. Upon the granting of a divorce, the trial court is required to, inter alia, equitably divide and distribute the marital assets between the parties. The trial court has discretion to determine what constitutes an equitable distribution. An unequal distribution of property does not, standing alone, mean the distribution was inequitable. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128. See Cherry v. Cherry (1981), 66 Ohio St.2d 348; Ellars, supra; DiPietro, supra. - 17 - In the case at bar, it is first noted that Barbara and Frederick executed an antenuptial agreement prior to their marriage. Antenuptial agreements are valid and enforceable in Ohio. Fletcher v. Fletcher (1994), 68 Ohio St.3d 464; Gross v. Gross (1984), 11 Ohio St.3d 99. A review of the relevant terms of the Dubinsky's antenuptial agreement, stated supra, reveals that the "Outline of Settlement" agreement granted more property to Barbara than she would have been entitled to claim under the antenuptial agreement. Specifically, according to the antenuptial agreement, Barbara was not entitled to the distribution of any property other than that which was her own personal property. Pursuant to the "Outline of Settlement" agreement, however, Frederick agreed to (1) obtain a loan of $85,000.00 which he was to pay to Barbara; (2) transfer $25,000.00 from his own IRA and 401K accounts to Barbara; and (3) pay Barbara $1,000.00 per month for four years. In light of the fact that the "Outline of Settlement" agreement mandated that Barbara receive a greater distribution of the marital assets than she was entitled to receive under the terms of the antenuptial agreement, it can hardly be said that the "Outline of Settlement" agreement was inequitable. On the contrary, Frederick could have sought to enforce the antenuptial agreement and spared himself the need to borrow a large sum of money and transfer retirement savings. Barbara finally argues the trial court erred when it refused, on October 8, 1993, to make an independent inquiry into - 18 - the equitability of the "Outline of Settlement" agreement. This issue need not be reviewed, however, since the trial court, as noted supra, made a determination in its final divorce decree that the "Outline of Settlement" was just and equitable. Nevertheless, since the antenuptial agreement was before the trial court, it can be said the equitability of the "Outline of Settlement" agreement was obvious. Based upon the foregoing analyses, it cannot be said the trial court abused its discretion, i.e., acted unreasonably, arbitrarily or unconscionably, when it divided and distributed the marital assets in accordance with the "Outline of Settlement" agreement and incorporated the "Outline of Settlement" agreement into the final divorce decree. Holcomb, supra; Cherry, supra; Ellars, supra; DiPietro, supra; Bisker, supra. Appellant's final two assignments of error, therefore, lack merit and are overruled. Judgment affirmed. - 19 - It is ordered that appellee(s) recover of appellant(s) 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 Domestic Relations 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. PATTON, C.J., and PRYATEL, J., CONCUR. (Judge August Pryatel, retired, sitting by assignment) JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the .