COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71841 JOHN K. CONSORTE : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : BARBARA L. CONSORTE : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: APRIL 23, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Domestic Relations Division Case No. CP-D-241223 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: RYAN A. GLAZE, ESQ. JOYCE E. BARRETT, ESQ. 26139 Wooster Road 800 Standard Building Rocky River, Ohio 44116 1370 Ontario Street Cleveland, Ohio 44113 -2- DYKE, P.J.: Appellant-defendant, Barbara Consorte, appeals the court's journal entry dated December 2, 1992, granting appellee-plaintiff, John Consorte, a divorce, dividing the marital property and ordering spousal support. For the following reasons, we affirm. On December 2, 1996, appellant and her attorney appeared for trial, scheduled for 10:30 a.m. that day. Appellant left the courthouse at 11:30 a.m., without permission of the court. At 2:00 p.m., appellant had not returned. Appellant's counsel moved for a continuance. The court denied the motion, noting that appellant's whereabouts were unknown, and the case had been pending since June, 1995. The court proceeded to hear testimony from appellee and appel- lee's witness. The court granted a divorce on the ground of incompatibility. The court adopted a journal entry presented by appellee. Appellant's attorney did not object. The record indicates that, prior to the trial, appellant's attorney partici- pated in drafting this journal entry. The journal entry divided the parties' property and required appellee to pay spousal support to appellant. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR A CONTINUANCE. Trial courts have broad discretion to decide whether to grant a continuance. State v. Unger (1981), 67 Ohio St.2d 65, NIAM Investigations, Inc. v. Gilbert (1989), 64 Ohio App.3d 125. In -3- deciding whether to grant a continuance, the court should consider: (1) the length of the delay, (2) whether other continuances had been granted, (3) the inconvenience to the litigants, witnesses, court and counsel, (4) whether the delay is dilatory, purposeful or contrived, (5) if the party requesting the continuance contributed to the circumstances giving rise to the need for continuance, and (6) any other relevant factor. Id. Appellant left the courthouse, creating the need for a contin- uance. A previous continuance of the trial had been granted. The case had been pending for some time. A continuance would have inconvenienced the court, the attorneys, appellee and appellee's witness. Appellant asserts a continuance was necessary, because appel- lant had recently changed counsel, had not filed a pretrial state- ment and was not prepared for trial. Appellant had three months to obtain new counsel. Appellant's counsel never indicated he was not prepared. Appellant had every opportunity to file a pretrial statement. We conclude that the trial court did not abuse its discretion in denying the motion for continuance. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT PERMITTING APPELLANT'S COUNSEL TO DEFEND AND CROSS- EXAMINE APPELLEE'S WITNESSES. -4- The record does not indicate that appellant's counsel attempted to cross-examine the witnesses, or that the court refused permission to do so. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANT- ING APPELLEE'S COMPLAINT FOR DIVORCE ON THE GROUNDS OF INCOMPATIBILITY. The appellee's complaint listed incompatibility as the sole ground for divorce. Appellant's answer denied the allegation that the parties were incompatible. At the December 2, 1996 hearing, appellee testified that he and appellant were incompatible. Appellee's witness, Richard Rutt, testified that he had personal knowledge as to appellee's truth- fulness concerning the incompatibility. Appellant was not present, but appellant's attorney did not object to the court's grant of a divorce on the grounds of incompatibility. R.C. 3105.01 states: The court of common pleas may grant divorces for the following causes: . . . (K) Incompatibility, unless denied by either party. (emphasis added.) If one party denies the issue of incompatibility in her pleadings, the denial bars the introduction of said issue into evidence. See Lehman v. Lehman (1991), 72 Ohio App.3d 68. -5- In this case, appellant denied incompatibility in her answer. Appellant was aware that trial was about to go forward on the issue of incompatibility, and she left the courthouse before the trial commenced. By her action, appellant waived her prior denial of incompatibility. This case is distinguishable from Lehman, where one spouse went on the record and stated the parties were not incompatible. Additionally, appellant's counsel failed to object to the granting of the divorce on the grounds of incompatibility. Errors not brought to the attention of the trial court are waived on appeal. Lefort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 123. A party can waive the issue of whether the party's prior denial prevented a divorce on the grounds of incompatibility. See Stuckey v. Stuckey (Oct. 16, 1997), Fayette App. No. CA97-03- 006, unreported. The trial court did not err in granting the divorce on the ground of incompatibility. Accordingly, this assignment of error is overruled. IV. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN THE DIVISION OF MARITAL PROPERTY AND DID NOT COMPLY WITH THE PROVISIONS OF O.R.C. 3105.171. The trial court accepted the journal entry submitted by appellee and prepared by counsel for both parties. Appellee testified that the property division was equal. No testimony as to -6- the value of the property was taken. Counsel for appellant did not object. The property division was as follows, with values taken from appellee's pretrial statement. (Appellant did not submit a pretrial statement.) The appellee's attorney stated that the value of the sick time as of the date of trial was $5,000. WIFE HUSBAND Equity in Home $83,000 Pension $125,013 Ford Aerostar Van 3,000 Ford Futura 500 Half of Tax Refund Half of Tax Refund Half of Escrow Check Half of Escrow Check Husband's Deferred Comp. Excess of Deferred Comp. at retirement, nte $22,014 over $22,014 Half of husband's sick time, Half of sick time, plus at retirement, nte $2,500 excess over $2,500 WIFE cont'd Furniture $5,000 A property division will only be reversed if the trial court abused its discretion. Cherry v. Cherry (1981), 66 Ohio St.2d 348. The trial court is required to determine the value of property and make written findings of fact as to the value of the property. Allen v. Allen (1996), 109 Ohio App.3d 640, R.C. 3105.171(G). Failure to make findings of fact is not error if the record demonstrates the trial court's basis for the property division. Kaechle v. Kaechle (1988), 35 Ohio St.3d 93, Asad v. Asad (June 19, 1997), Cuyahoga App. No. 70075, 70081, 70243, unreported. Appellee asserts that such written findings were not required because the court accepted the settlement agreement of the parties. Walther v. Walther (1995), 102 Ohio App.3d 378. This was not a settlement agreement because appellant did not sign it or otherwise manifest agreement to it. It is also not clear from the record -7- that appellant's attorney had authority to enter into the settlement agreement on behalf of his client. See Morris v. Ohio Cas. Ins. Co. (1989), 35 Ohio St.3d 45, 48, Garrison v. Daytonian Hotel (1995), 105 Ohio App.3d 322, 327. The record indicates that the trial court's basis for the property division. The property division was not an abuse of discretion. No objections were made to the property division, and we see no plain error in the manner in which the property was divided. Accordingly, this assignment of error is overruled. V. Appellant's fifth assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FASHIONING AN AWARD OF SPOUSAL SUPPORT. Appellee testified that his annual income as a police officer is approximately $40,000 per year. He further testified that appellant earns $533 per month at Gund Arena and $50 per week from appellant's plant landscaping business. Appellee also testified that appellant was a high school graduate and had no work limitations. The parties had been married for twenty-five years. The journal entry submitted by appellee stated that he would pay $1,200 spousal support per month, terminable upon death, cohabitation or remarriage. The trial court adopted this journal entry. Appellant's attorney did not object. A trial court's award of spousal support will only be reversed upon a showing of abuse of discretion. Cherry, supra. In this case, the trial court considered the R.C. 3105.18 factors and did -8- not abuse its discretion in its award of spousal support. Additionally, there is no plain error apparent from the face of the record. Accordingly, this assignment of error is overruled. VI. Appellant's sixth assignment of error states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAIL- ING TO COMPLY WITH LOCAL RULE 28 OF THE CUYAHOGA COUNTY COMMON PLEAS COURT, DOMESTIC RELATIONS DIVISION. Loc. R. 28(B) provides that if the court orders one party to prepare the journal entry, the proposed entry must be given to opposing counsel, and opposing counsel has three days to reject the proposed journal entry. The case at hand is distinguishable because appellee's attorney presented the journal entry in court. The appellant's attorney was aware of the contents of the journal entry but did not object. In this case, Loc. R. 28 does not mandate a three day waiting period. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -9- It is, therefore, considered that said appellee recover of said appellant his costs herein. It is ordered that a special mandate be sent to said 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, J., AND CORRIGAN, J., CONCUR ANN DYKE PRESIDING JUDGE 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 .