COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70972 and 71041 PENNY COSERIU : OPINION : Plaintiff-Appellee : : vs. GEORGE COSERIU, ET AL JULY 24, 1997 Civil appeal from Domestic Defendant-Appellants Relations Case No. D-222563 DATE OF ANNOUNCEMENT AFFIRMED IN PART, REVERSED IN OF DECISION: PART, AND REMANDED. CHARACTER OF PROCEEDING: JUDGMENT: BRENT L. ENGLISH 795 Courthouse Square 310 Lakeside Avenue DATE OF JOURNALIZATION: Cleveland, Ohio 44113-1021 APPEARANCES: JAMES M. WILSMAN JOSEPH S. SIMMS For Plaintiff-Appellee: Wilsman & Schoonover 1920 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114-1503 For Defendant-Appellant ELLEN S. MANDELL George Coseriu: 75 Public Square, Suite 700 Cleveland, Ohio 44113-2001 For Minor Children: O'DONNELL, J.: George Coseriu, the husband, and Ellen Mandell, the guardian ad litem of the four minor children of the parties, separately appeal from a judgment of the Domestic Relations Division of the Cuyahoga County Common Pleas Court which had been prepared by counsel for Penny Coseriu, the wife, purportedly in accordance with the terms of an in-court written agreement, and which the court signed after summarily denying objections to it filed by both the husband and the guardian ad litem for the children. We consolidated these separate appeals for purposes of our review. The record reflects that the parties were married in Solon, Ohio, on December 28, 1979; four children, Gregory, Allison, Stephanie, and Marc, were born as issue of that marriage; that the family relocated to Westlake, Ohio, and that on November 23, 1992, the wife filed for divorce; further, that the court appointed a guardian ad litem for the minor children of the parties, commenced trial on January 10, 1995, and conducted trial in 1995 on January 12, February 13, March 20, May 10, May 11, May 16, September 6,7,8 and November 13; and also conducted trial in 1996 on March 11, April 10, April 12 and June 11, but never reached the point in trial where appellee rested. This pattern of trial reflects poorly on the judiciary and the legal profession and raises matters of growing concern regarding public confidence in the judiciary. The record further reflects in this case that on June 10, 1996, counsel for the husband and wife negotiated a settlement agreement and prepared a document on that date styled, In Court Agreement, which contains the signatures of the parties, their 3 counsel, and the guardian ad litem with the notation, as to form only. On June 18, 1996, when husband refused to sign the deed and other documents in connection with the sale of the marital home, the wife filed a motion to enforce the settlement agreement, he filed a motion to vacate it, and the court conducted hearings on these motions on June 28, July 2, and July 3. The court granted the motion to enforce the agreement and directed wife's counsel to prepare a Judgment Entry for the court. On July 8, the guardian ad litem filed objections to the proposed entry as prepared by the wife's counsel and on July 16, the husband also filed objections to the proposed entry. However, on July 17, 1996, the trial court, without a hearing, overruled the objections and signed it as a final judgment in the case. The husband filed an appeal known as No. 70972, asserting five errors for our review and the guardian ad litem also filed an appeal known as No. 71042, assigning three errors for our review. As indicated, these separate appeals have been consolidated. The husband's first assignment of error states: I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO VACATE AND SET ASIDE THE IN-COURT AGREEMENT. Citing Civil Rule 60(B) and claiming that his wife fraudulently induced him into signing the In Court Agreement, the husband urges the trial court erred when it denied his motion to vacate that agreement. The wife urges the court did not abuse its discretion by denying the motion to vacate because no evidence of fraud exists in 4 the record, and her failure to disclose her intention to relocate to Texas does not constitute fraud. The issue for our consideration concerns whether the trial court abused its discretion in denying the motion to vacate the In Court Agreement. Civ.R. 60(B) states in pertinent part: On motion and upon such terms are just, the court may relieve a party or his legal representation from final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; ***(3) fraud***, misrepresentation or other misconduct of an adverse party; or (5) any other reason justifying relief from judgment***. (Emphasis added.) A review of the record here reveals that on June 19, 1996, the husband filed a motion to vacate the In Court Agreement, prior to the time it merged into the final judgment entry. At this point the agreement had not lost its separate legal identity as a contract. See Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 417-418. In this case, since the agreement retained its identity as a contract and never became a final judgment, and since Civ.R.60(B) only authorizes a court to relieve a party from a final judgment and not from a contract, the court did not abuse its discretion in denying the motion. Accordingly, this assignment of error is overruled. Next we shall jointly consider the husband's second and third assignments of error and the guardian ad litem's first assignment of error because they all concern a similar issue. The husband's second and third assignments of error state: II. THE TRIAL COURT ERRED WHEN IT ISSUED A JUDGMENT ENTRY WHICH FAILED TO ACCURATELY REFLECT THE TERMS OF THE 5 IN-COURT AGREEMENT WITHOUT CONDUCTING A HEARING AND PROPERLY RULING UPON APPELLANT'S OBJECTIONS THERETO. III. THE TRIAL COURT ERRED WHEN IT ISSUED A JUDGMENT ENTRY WHICH INACCURATELY REFLECTED THE TERMS OF THE IN- COURT AGREEMENT PERTAINING TO CHILD SUPPORT AND SPOUSAL SUPPORT. Mandell's first assignment of error states: I. THE TRIAL COURT ERRED BY ENTERING JUDGMENT WHICH WAS INCONSISTENT WITH THE IN-COURT SETTLEMENT AGREEMENT REACHED. Here, the appellants urge the trial court erred in failing to conduct a hearing on their objections to the proposed judgment entry and in adopting it because it materially differed from the written In Court Agreement. The appellee asserts that the court did not abuse its discretion when it signed the judgment entry in this case. The issue for our consideration relates to whether the court abused its discretion by summarily overruling the objections and signing the entry without conducting a hearing. In Zigmo nt v. Toto (1988), 47 Ohio App.3d 181, our court stated in its head note, in part: ***[T]he court should not reduce an agreement to judgment without reliably determining its content. Thus, the court should hold an evidentiary hearing to resolve any dispute about the existence of an agreement or its terms. (Emphasis added.) Despite numerous differences between the in-court agreement and the proposed entry which appellants articulated to the trial court in their objections, the court nevertheless signed the entry which, we note, fails to reflect the terms contained in Exhibit A, the In Court Agreement. This unilateral modification of the 6 terms of that in-court agreement constitutes an abuse of discretion. Accordingly, we sustain these assignments of error, and vacate those portions of the judgment which unilaterally modified the written terms of the In Court Agreement and remand this matter to the court for a prompt evidentiary hearing to be held within 30 days with our instructions to enter judgment in accordance with the precise terms articulated in the In Court Agreement signed by the parties and their counsel. The husband's fourth assignment of error states: IV. THE TRIAL COURT ERRED WHEN IT AWARDED APPELLEE OVER NINETY-EIGHT PERCENT OF THE NET PROCEEDS FROM THE SALE OF THE MARITAL RESIDENCE, THEREBY ALLOCATING IN EXCESS OF EIGHTY PERCENT OF THE TOTAL MARITAL ESTATE TO APPELLEE. The husband argues here that the trial court abused its discretion in making a division of marital property because the journal entry grants more than eighty percent of the marital assets to wife and all of the marital debts to the husband. The wife submits that since the parties agreed to the terms of the In Court Agreement, the trial court did not abuse its discretion by entering judgment in accordance with those terms. The issue for our determination here is whether the trial court abused its discretion by entering a judgment which gave his wife most of the proceeds from the sale of the marital residence. The first item contained in the In Court Agreement states: The wife shall receive 65,000 from sale of the marital residence. Essentially, the husband seeks to have this court modify this term of the agreement which he made in court while represented by 7 counsel because he only realized $714 from the sale of that property. We decline to do so, not only because the domestic relations court has broad discretion in the division of marital property, but also because of the basic tenets of contract law. We find the trial court did not abuse its discretion in this regard by entering its judgment regarding the division of proceeds from the marital home in accordance with terms agreed to by the parties. Thus, we overrule this assignment of error. Next we address the husband's fifth assignment of error and the guardian ad litem's second assignment of error. The husband's fifth assignment of error states: V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ALLOCATED THE PARENTAL RIGHTS AND RESPONSIBILITIES OF THE PARTIES WITHOUT CONSIDERING THE BEST INTERESTS OF THE MINOR CHILDREN. The guardian ad litem's second assignment of error states: II. THE TRIAL COURT ERRED BY ENTERING JUDGMENT REGARDING CUSTODY AND VISITATION WITHOUT FINDING THAT THE ALLOCATIONS OF PARENTAL RIGHTS WAS IN THE BEST INTERESTS OF THE MINOR CHILDREN AND WITHOUT ENTERING A SPECIFIC VISITATION SCHEDULE. Appellants assert that the trial court contravened R.C. 3109.04(B) and R.C. 3109.05, when it issued its judgment order and disregarded the best interests of the children, by failing to set forth a specific visitation schedule. The wife contends however that appellants present no evidence that the trial court failed to consider the best interests of the children in making its allocation of parental rights and responsibilities and that the court did set forth a specific visitation schedule between Marc and his mother, although it did 8 not provide such a schedule for the other three children and their father, who chose not to visit them. The issue for us to decide is whether the trial court abused its discretion in this case by adopting this judgment. In determining what is in the best interests of a child, R.C. 3109.04(C) provides several factors which the trial court must take into consideration. However, in custody disputes, [w]hen there is no evidence to the contrary, an appellate court will presume the trial court considered all the relevant factors. Evans v. Evans (1995), 106 Ohio App.3d 673, 677. Here, the record is silent as to whether the trial court considered all the relevant factors pursuant to R.C. 3109.04(C). Therefore, since there is no evidence to the contrary, we must presume that it did in fact consider them. Regarding the failure of the trial court to provide a specific visitation schedule in the journal entry, the Ohio Supreme Court has determined that ***common sense and fundamental fairness compel the application of the `abuse of discretion' standard in reviewing matters concerning***visitation rights. Booth v. Booth (1989), 44 Ohio St.3d 142. Further, in McClure v. McClure (1994), 98 Ohio App.3d 27, at 34, the reviewing court found no abuse of discretion in adopting a divorce decree entered pursuant to an agreement between the parties which did not include any specific visitation schedule because the father had been present in the courtroom when the attorneys entered into the agreement and the decree accurately reflected it. 9 Here, neither the journal entry nor the In Court Agreement provide for a specific schedule for Gregory, Allison, or Stephanie to visit their father, but we note the husband and his counsel signed the in court agreement. Thus, the trial court did not abuse its discretion in failing to provide a specific visitation schedule in its entry and we overrule this assignment of error. The guardian ad litem's third assignment of error states: III. THE TRIAL COURT ERRED BY ENTERING JUDGMENT REGARDING CHILD SUPPORT WITHOUT COMPLETING A CHILD SUPPORT GUIDELINE WORKSHEET PURSUANT TO REVISED CODE 3113.21.5; WITHOUT FINDING THAT THE CHILD SUPPORT AWARDED WAS CONSISTENT WITH THE FINDING THAT A DEVIATION FROM THE OHIO CHILD SUPPORT GUIDELINES WAS WARRANTED. The guardian ad litem argues that the trial court's failure to include a child support guidelines worksheet in its final decree of divorce is reversible error. The wife acknowledges that R.C. 3113.21.5 is mandatory and must be followed literally and technically in all material respects, but contends that the court's failure to include the worksheet is harmless because the parties do not dispute the amount of the child support. The wife further contends that the duties of the guardian ad litem in this case are to advocate for the children and not to raise de minimis technical errors and since the amount of support was negotiated between the wife and the husband, the guardian ad litem lacks standing to challenge the child support order. We observe that the guardian ad litem failed to present this issue in her objections to the court on July 8, 1996, and as a consequence ***errors which are not brought to the attention of 10 the trial court by objections are waived and may not be raised on appeal. Evans v. Evans (1995), 106 Ohio App.3d 673, 677. Accordingly, we decline to address this assignment of error and thus, it is overruled. The judgment of the trial court is thus, affirmed in part and reversed and remanded in part for further proceedings consistent with this opinion. So ordered. 11 It is ordered that appellant and appellee are to share equally the 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. BLACKMON, P.J., and SPELLACY, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .