COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71936 VICTORIA I. MIKOCH : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : MICHAEL A. MIKOCH : OPINION : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 26, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Domestic Relations Division, Case No. DM-148924 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ____________________________ APPEARANCES: For Plaintiff-Appellant: LORA L. BELVISO Black, Belviso & Assoc. 1501 Madison Avenue Painesville, Ohio 44077 For Defendant-Appellee: CHRISTINA M. JANICE Kabat, Mielziner, Sobel & Janice 25550 Chagrin Blvd., #403 Beachwood, Ohio 44122 O'DONNELL, J.: Victoria I. Mikoch appeals from a judgment of the Common Pleas Court, Domestic Relations Division, which adopted the magistrate's -2- decision denying her motions to show cause, for relief from judgment, and for attorney fees. Based upon the following analysis, we affirm. The record reveals that in 1975, Victoria married Michael A. Mikoch but, in 1984, they obtained a dissolution of their marriage. The dissolution decree incorporated a separation agreement which provided that Michael shall pay Victoria, within ten years, her net (50/50) equity in the marital residence, located at 1277 Goldengate Boulevard, Mayfield Heights, Ohio. The record reveals, however, that three years later, and before Michael paid Victoria her share, the couple remarried. Despite this second marriage, in 1991, they again obtained a dissolution of their marriage, and that dissolution decree incorporated a second separation agreement. This second agreement provided that Michael would retain title to the marital residence, free and clear of all Victoria's equity claims, in consideration for $10,000.00 and his assumption of the mortgage debt. In 1996, Victoria filed motions to show cause, for relief from judgment, and for attorney fees, requesting payment from Michael of her 50% equity interest in the marital residence, as set forth in the first separation agreement entered in connection with the 1984 dissolution. The magistrate found that Victoria's equity interest constituted separate property, rather than marital property, but determined that the second separation agreement disposed of her entire equity interest in the property and, therefore, concluded that the doctrine of res judicata precluded her recovery. The -3- court adopted the magistrate's decision, and Victoria now appeals raising one assignment of error for our consideration. The sole assignment of error states: THE JUDGMENT ENTRY OF THE COURT FILED DECEMBER 18, 1996, ADOPTING THE MAGISTRATE'S DECISION, IS CONTRARY TO LAW AND IS AGAINST THE WEIGHT OF THE EVIDENCE. Victoria contends that the court erred when it concluded that the second separation agreement disposed of her interest in the property, and maintains that her interest constituted separate property, which was not encompassed within the terms of the second separation agreement. She also argues that she did not forego her separate interest in the marital residence by executing the second separation agreement. Finally, she urges the terms of the second separation agreement are ambiguous and should be construed against Michael, because his counsel prepared it, and the court's judgment results in a windfall to Michael. Michael contends the judgment is neither contrary to law nor against the manifest weight of the evidence. He urges the court properly determined that Victoria waived her equity interest in the marital residence, arguing that the separation agreement is unambiguous and finally determined ownership of all marital property. The issue then presented for our review is whether the judgment of the court, adjudicating the interests in the marital home, is contrary to law or against the manifest weight of the evidence. The interpretation of a separation agreement raises a question -4- of law. See Brown v. Brown (1993), 90 Ohio App.3d 781. A reviewing court may not reverse a judgment in a civil case as being against the manifest weight of the evidence, if that judgment is supported by some competent, credible evidence going to all the essential elements of the case. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279. In Troha v. Troha (1995), 105 Ohio App.3d 327, 332, 334, the court defined the limits for interpreting a separation agreement, stating in relevant part: A separation agreement is a contract and, as such, is subject to the same rules of construction that apply to other contracts. * * * The contract must be interpreted in accordance with the parties' intention. * * * It is a fundamental principle in contract construction that contracts should be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language. We begin our analysis by examining the language of both separation agreements in an effort to ascertain the intent of the parties. The first separation agreement contains the following language: The parties are joint owners of real estate located at 1277 Goldengate Blvd. Mayfield Hts., Ohio 44124 * * *. Title to the home shall remain in the joint names of the parties. Before the hearing on this dissolution, husband and wife will share the cost equally for an appraiser to appraise the real estate. If, within ten (10) years, husband sells the home, then the husband will give the wife her net (50/50) equity in the home as of the date of the appraisal. After ten (10) years has elapsed, if the home hasn't been sold, husband shall pay to the wife her net equity in the home as of the date of the aforementioned appraisal * * *. (Emphasis -5- added). The second separation agreement states in relevant part: [S]aid Husband and Wife desire to, and by these presents do, forever and completely settle and determine, * * * (B) The right to any and all property, real and personal, each may have by virtue of their marriage; * * * [S]aid Husband and Wife agree: 1. That the Husband shall retain as his own, free and clear of any claims or demands of the Wife, title to the real property of the parties located at 1277 Golden Gate, Mayfield Heights, Ohio; that the Wife shall forthwith execute any and all documents required to transfer and relinquish her interest in said premises, in favor of the Husband; That the Husband shall be solely responsible for, and shall save and hold the Wife harmless on, the mortgage due on said real property to Horizon Savings; That the Husband shall pay to the Wife, as and for her interest in the real property the sum of Ten Thousand Dollars ($10,000.00)* * *. (Emphasis added). We note that the language of the second separation agreement expresses a mutual intent to determine and settle the rights to all real property that each may have by virtue of their second marriage. Relying upon this language, Victoria argues that she relinquished only the rights she acquired from her second marriage, and did not thereby intend to abandon her 50% interest in the marital residence which she alleges she received in the first dissolution. -6- Throughout both marriages and during both legal proceedings, Victoria retained a joint ownership interest in the marital residence. She never obtained an undivided separate property interest in that residence because neither of the conditions precedent, as set forth in the first separation agreement, occurred: (1) within the ten-year period following their first dissolution, Michael never sold the marital residence and, thus, never had an obligation to deliver one-half of the proceeds of a sale to her; and (2) prior to the expiration of that ten-year period, they executed the second separation agreement, and consequently, Michael never became obligated to sell the marital residence and distribute one-half of the proceeds to her. Instead, they remarried, and Victoria brought to the re-marriage her original legal joint ownership interest in the property. It is that interest she conveyed in the second separation agreement to Michael for $10,000. In this connection, R.C. 3105.63 defines the purpose of a separation agreement as follows: (A)(1) A petition for dissolution of marriage shall be signed by both spouses and shall have attached and incorporated a separation agreement agreed to by both spouses. The separation agreement shall provide for a division of all property * * *. (Emphasis added). Accordingly, in this instance, the second separation agreement divided all property, including Victoria's entire interest in the marital residence. No language contained in the second separation agreement suggests any intent for her to retain her interest from -7- the first judgment of dissolution. Further, the language contains an expressed agreement that Michael obtain title to the marital residence, free and clear of any claims or demands of the Wife, and for Michael to hold Victoria harmless on the mortgaged indebtedness on the property. This language demonstrates Victoria's intent to relinquish her entire interest in the marital residence, including that which arose from the first dissolution, because she could not both convey an unencumbered title to Michael while, at the same time, retain an equity interest in a portion of that property. Also, Victoria contends the judgment provides a windfall to Michael. Her contention is not well taken. In DiPietro v. DiPietro(1983), 10 Ohio App.3d 44, 47 the court stated in relevant part: [W]here the parties have dealt at arms length with each other rather than in a confidential relationship, the test is whether the agreement is the product of fraud, duress or undue influence upon the party in the weaker bargaining position. The fact that a separation agreement does not equally divide the property of the parties does not require a finding that the agreement is unenforceable. Here, Victoria raised no claim that the separation agreement is the product of fraud, duress or undue influence and the record provides no evidence to support such a claim. Accordingly, the judgment of the trial court is supported by competent, credible evidence and the court's decision is not, therefore, against the manifest weight of the evidence; further, the trial court interpreted the separation agreements in accordance -8- with the intentions of the parties as stated in those contracts. We agree with the court's interpretation and conclude the judgment of the trial court is not contrary to law. Accordingly, this assignment of error is overruled and we affirm the judgment of the trial court. Judgment affirmed. -9- It is ordered that appellee recover of appellant its 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 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. SPELLACY, J., CONCURS; BLACKMON, P.J., CONCURS IN IN JUDGMENT ONLY 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 .