COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68672, 69121 : BEVERLY JANE DAVIS : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION SAMUEL SHELDON DAVIS, ET AL. : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 18, 1996 CHARACTER OF PROCEEDING: Civil appeals from the Domestic Relations Division of the Common Pleas Court Case No. D-213400 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: L. RAY JONES, ESQ. LON D. STOLARSKY, ESQ. P.O. Box 592 1630 Standard Building Medina, Ohio 44258 1370 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: This is a consolidated appeal. In the first case, Case No. 68672, plaintiff, Beverly Jane Davis, appeals from the trial court journalization of an agreed judgment entry. In the second case, Case No. 69121, plaintiff appeals from the denial of her motion for reconsideration. Plaintiff raises two assignments of error in her consolidated brief. For the following reasons these assignments are found to lack merit and the judgment of the trial court is affirmed. Plaintiff and defendant, Samuel Sheldon Davis, were married on March 11, 1977. Two children were born during this marriage, one of which still lives with plaintiff. Plaintiff filed for divorce on September 17, 1991. The case was set for trial on February 3, 1995. On the eve of trial, the parties executed an agreed judgment entry. The agreement was signed by the plaintiff and the judge. Any written changes to the typed document were initialed by plaintiff. On March 10, 1995, plaintiff filed a motion for relief from judgment in the trial court. On March 13, 1995, plaintiff appealed to this court from the agreed judgment entry. The appeal was stayed pending the resolution of the motion for relief from judgment. After the trial court denied the motion for relief from judgment, plaintiff also appealed this denial to this court, and the cases were combined. Plaintiff's first assignment of error states as follows: - 3 - I. The trial court should have granted relief from judgment to the Plaintiff from the trial court final entry of February 9, 1995. In order to prevail on a motion brought under Civ.R. 60(B), the movant has the burden to demonstrate the following: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60 (B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment, order, or proceeding was entered or taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 103. A motion for relief from judgment will be overruled if these three elements are not satisfied. Rose Chevrolet, Inc. V. Adams (1988), 36 Ohio St.3d 17. In the case at bar, plaintiff timely filed her motion, but failed to establish adequate grounds for relief from judgment. Plaintiff argues that (1) her own poor physical condition and (2) the pressure she received from her own attorney are grounds for relief. These reasons, however, do not suffice. In DiPietro v. DiPietro (1983), 10 Ohio App.3d 44, the court noted the movant is required to prove by clear and convincing evidence that the separation agreement was executed under the influence of duress or mental incompetency. Id. at 46; Dubrinsky v. Dubrinsky (Mar. 9, 1995) Cuyahoga App. Nos. 66439 & 66440, unreported. In the - 4 - case at bar, plaintiff has not met this standard. The only evidence presented in support of the 60(B) motion is plaintiff's affidavit. Her statement that she is suffering from multiple sclerosis is insufficient by itself to establish that she lacked the capacity to contract. Because no evidence of mental incompetency was presented, it cannot be said that plaintiff did not understand the effect of her signing the settlement. Moreover, it was plaintiff's attorney, not opposing counsel, who allegedly created the duress under which plaintiff signed the agreement. Duress on the part of plaintiff's attorney is not grounds for relief from judgment. In order for coercion to be a basis to avoid a contract, the coercive acts must be those of the opposite party. Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, syllabus. Plaintiff has also failed to establish a meritorious claim or defense if relief is granted. The separation agreement equitably divided the assets and liabilities of the parties. Plaintiff was named the residential parent and awarded the marital property. Defendant was ordered to pay child support. As for any burden to plaintiff under the agreement, she is required to sign a promissory note to defendant for $38,000, representing defendant's interest in the marital property. This requirement is reasonable because the note is not immediately payable, it becomes payable to defendant upon the first of the following to occur: (1) the sale or transfer of the property by plaintiff, (2) the death of plaintiff, or (3) ten years from the - 5 - date of the judgment entry. Finally, plaintiff's argument that the agreement is defective because it fails to award spousal support is not persuasive. The domestic relations court specifically retained jurisdiction to award spousal support later when the defendant becomes employed. Accordingly, the first assignment of error is overruled. Plaintiff's second assignment of error states as follows: II. The Court failed to list or enumerate any findings in its order which are necessary pursuant to 3105.17(G), there were no written findings of fact to support the determination the marital property had been equitably divided, nor was there any specificity of the dates used in determining the meaning of "during the marriage." In this assignment of error, plaintiff argues that the trial court did not comply with R.C. 3105.17(G) in approving the settlement agreement. This argument lacks merit. Revised Code Chapter 3105, which applies to contested divorce proceedings, has no application to settlement agreements. Thomas v. Thomas (1982), 5 Ohio App.3d 94. Moreover, a court is not required to determine an equal property division as a condition precedent to the acceptance of an settlement agreement. DiPietro, supra. This principle is consistent with the general rule that Ohio law encourages the settlement of disputes. Blodgett, supra. There- fore, the trial court did not err by not making findings of fact to determine whether the marital property had been equally divided. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant his 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 Division of 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. HARPER, P.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .