COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72319 DENNIS E. FLASH : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION VICTORIA L. FLASH, et al : : Defendant-appellees : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 9, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Domestic Relations Division : Case No. D-246189 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: SUSAN BROOKS DICKINSON Attorney at Law 19111 Detroit Avenue, #306 Rocky River, Ohio 44116 For defendant-appellees: JOSEPH G. STAFFORD Attorney at Law 380 Lakeside Place 323 Lakeside Avenue, W. Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- Appellant appeals the trial court's entry of a divorce decree that incorporates the parties' in-court settlement agreement. As the trial court did not err when it entered the journal entry, we affirm. Appellant Dennis E. Flash filed a complaint seeking a divorce from appellee Victoria L. Flash on March 21, 1996. Appellee filed her answer and counterclaim and a motion seeking alimony pendente lite on April 18, 1996. Trial commenced in this matter on February 21, 1997. Both parties testified at trial. Appellant and appellee were married on August 26, 1972. Appellant left the marital home in August of 1993. Two children were born during the marriage: Jessica was born in 1977, and Lindsey was born in 1979. Appellee has worked as a secretary for the law firm of Stringer, Stringer & Gaisor since January 1996. Her salary was $8 per hour at the time of trial. She had previously worked as a legal secretary from 1969 to 1972 and as a deputy clerk from 1973 to 1977. She testified that she had essentially been a housewife for eighteen years prior to obtaining her current position. Appellant has worked at the Shelby Company in Westlake, Ohio since 1985. He currently works in the prepress department and earns approximately $15.30 per hour. He testified that he occa- sionally receives overtime pay when the company is busy; however, when the company is not busy, he may also be laid off. He tes- tified that he had been laid off for approximately fifteen weeks -3- during 1996. At the time of trial, he had not worked since the end of December 1996. Both parties have suffered from some ill health. Appellee was diagnosed with a disease known as chronic fatigue syndrome. Appellant testified that while he was still living in the marital home, he suffered a minor heart attack. Appellant also complains of bad knees. Both parties testified regarding the marital debts and assets. Following appellant's direct testimony, on February 25, 1997, the parties reached an agreement, which was read into the record in open court. The agreement provided that appellee would be the residential parent and legal custodian of the minor child. The parties' marital home would become the property of appellee. Appellee was to hold appellant harmless on the first mortgage and would pay the first mortgage and expenses associated with the residence. The parties also agreed to the division of the household contents and personalty. Each party was to retain an automobile, and appellant was to retain a motorcycle, and each would hold the other harmless for associated expenses. Appellant agreed to pay the Discover Card debts in the approximate sum of $400; appellee agreed to pay the Master Card debts amounting to approximately $2,000 and would hold appellant harmless on the debt. Appellee would pay all expenses associated with her medical care and hold appellant harmless. Appellant would pay $392.56 per month pursuant to the child support schedule. Appellee waived any -4- temporary support arrearages for both spousal and child support. Appellant agreed to pay $500 per month, plus poundage, in spousal support through the Cuyahoga County Support Enforcement Agency for a period of seven years, subject to death, remarriage or cohabita- tion. All assets, with the exception of one bank account located at Strongsville Savings Bank, became the property of appellee. Thus, appellee received, as recited by her attorney on the record: a savings account at Strongsville Savings; three Huntington National Bank accounts in the amounts of $2023, $795 and $2639; a Universal Guaranty Insurance Company policy in the accumulated cash value; an annuity from Protected Home Mutual Life Insurance Company, including any and all accumulated cash value, currently in excess of $20,000; a retainer and pension with the Shelby Company, Inc.; a 401K plan; a Graphic Communications International Union Retire- ment Plan and Supplemental Retirement and Disability Fund pension; any pre-retirement subsidiaries and all associated benefits, assets, and interests; the KeyCorp accounts; the St. Francis DeSales Federal Credit Union accounts; all IRA's at Third Federal; and the brokerage accounts and IRA's at Roney & Company. Following the recitation of the agreement, the following ex- change occurred on the record: MS. BROOKS-DICKINSON [appellant's attorney]: No. I don't care about the form. The only thing I want to clarify, I am not sure about the pensions, Graphics of course terminated some time ago. The Shelby pension, I want to make sure that her interest is as of today. -5- COURT: That's correct. *** MS. BROOKS-DICKINSON: Your Honor, I want to make sure because my client is questioning about the division of those two small pensions, I want to make sure he understands what he is agreeing to. COURT: All right. (Thereupon, a discussion was had off the record.) MS. BROOKS-DICKINSON: I think he understands. COURT: All right. That will be a complete statement of the agreement that the parties have reached? MS. BROOKS-DICKINSON: Yes, your Honor. *** COURT: I understand both parties are still under oath from their testimony. *** COURT [addressing appellant]: Sir, you also have been represented by counsel throughout these proceed- ings; is that correct? MR. FLASH: Yes, your Honor. COURT: In negotiating this agreement that has been read into the record, did you also make a full and complete disclosure of what property you own, what debts you have and what your income is? MR. FLASH: Yes, your Honor, to the best of my ability. COURT: Have you heard everything that has been read into the record at this time? -6- MR. FLASH: Yes, your Honor. COURT: Do you understand what has been said? MR. FLASH: I believe so, unfortunately. COURT: Do you have any questions about the terms of the agreement or your rights or obligations under the laws of this State, any question at all? MR. FLASH: I am thinking about the alimony, if things change, is that in the re- cord? MR. STAFFORD [appellee's attorney]: The alimony is subject to further jurisdiction.I thought I mentioned it your Honor. COURT: It is subject to further order of Court that in any event there is a change in circumstances on your part or on your wife's part, do you un- derstand that? MR. FLASH: Yes. COURT: That's part of the agreement? MR. FLASH: Yes. COURT: You and your wife have in fact lived separate and apart for over a year; is that correct? MR. FLASH: That's correct. COURT: And you would join with her in ask- ing that this Court grant a divorce to both of you and that the basis of that divorce would be an agreement that has been read into the record at this time which should become a Court order that requires both of you to comply with all of the terms of the agreement; is that correct? MR. FLASH: Yes. COURT: All right. -7- Following this colloquy, appellant's attorney requested that the court again explain the spousal support issue. Following an off the record discussion, the record continued: COURT: It would appear that we don't have an agreement. MS. BROOKS-DICKINSON: Can we take two minutes and have the parties talk, Judge? COURT: Yes. Just a few minutes. (Thereupon a recess was taken.) COURT: All right. After lengthy discus- sions, I think we now have an agree- ment; is that correct? MS. BROOKS-DICKINSON: Yes, that's my understanding, Your Honor. [Ms. Brooks-Dickinson then clarified the spousal support issue on the record.] COURT: You heard it, did you understand it? MR. FLASH: Yes. Appellee prepared a judgment entry incorporating the terms of the agreement as memorialized on the record, and appellant filed objections to the entry. On March 12, 1997, the lower court signed the prepared entry. Appellant then filed a motion to vacate the judgment entry1 and for a new trial, a notice of appeal, and a motion to remand to the lower court for a ruling on the motion to 1 Appellant sought to vacate the entry on the grounds that two of the Huntington Bank accounts awarded to appellee actually belonged to appellant's father and further alleged that the language in the entry may permit appellee to transfer other accounts into her name that belong to appellant's father but on which appellant is also named. -8- vacate and for a new trial. This court subsequently granted appellant's motion to remand. The trial judge set the motion for hearing as it pertained to appellant's claims regarding the Huntington National Bank accounts but denied the motion in all other respects. At the hearing, appellant's testimony revealed that he had been dishonest in his prior testimony before the court. He had previously testified that he was not working at the time of trial when, in fact, he was working for a friend at a bar and being paid under the table. He also was collecting unemployment without disclosing that he was earning income and had failed to report this income on his 1995 tax returns. Appellant also failed to accurately disclose all of his assets. He testified that he was in a fog during much of the divorce trial, which, he alleges, may account for the inconsisten- cies. Following the hearing, the lower court vacated the portion of the judgment entry that related to two of the Huntington National Bank accounts.2 The matter was then returned to this court for further proceedings. Appellant's single assignment of error alleges: THE TRIAL COURT ABUSED ITS DISCRETION IN APPROVING A JUDGMENT ENTRY THAT AWARDED EFFEC- TIVELY 100% OF THE PARTIES' MARITAL ASSETS TO APPELLEE, INCLUDING THEIR RETIREMENT, AND AWARDED SEVEN YEARS OF SPOUSAL SUPPORT TO APPELLEE. 2 The lower court determined that appellant's father was a credible witness and was the true owner of two of the Huntington Bank accounts but was never joined as a party in this matter. The court found appellant not to be a credible witness. -9- Although appellant admits that he agreed to the terms of the entry in open court, he contends that the trial court erred when it approved the agreement. Appellant first argues that Greiner v. Greiner (1979), 61 Ohio App.2d 88, 99 applies. In Greiner, the court held that when a settlement agreement is submitted to a court at the time of trial, the court may find the agreement to be fair, just and reasonable and incorporate it into the decree, it may reject some of the terms of the agreement and incorporate its independent rul- ings and partial agreement into the decree, or it may reject the entire agreement and make its own findings. See, also, Bourque v. Bourque(1986), 34 Ohio App.3d 284, 287. Thus, appellant contends the trial court erred by entering the judgment entry without first determining whether the settlement agreement was fair, just and reasonable. Appellant's reliance is misplaced, however. Both Greiner and Bourquedealt with the submission of written separation agreements. See Greiner, supra; Bourque, supra. In contrast, in the matter sub judice, the agreement was made in open court; thus, the trial judge was able to observe the parties and witness their acquiescence while the agreement was being read into the record. Moreover, the judge questioned the parties, also on the record, to ascertain that each party understood the terms of the agreement and that his and her agreement was voluntary. A trial court may enter a judgment that reflects an agreement that is read in open court into the record. Zigmont v. Toto -10- (1988), t e 47 Ohio App.3d 181, 185, citing (1982), Ohio App.3d 36 supra at 185. In this case, the terms of the agreement and the acquiescence of the parties are clearly evident from the record. Moreover, sBolen v. Young terms; rather, it is appellant's position that the domestic relations court, as a court of equity, must make an independent determination that the agreement is equitable. Appellant apparently contends that the trial court erred when it permitted the division of property without applying the provisions of R.C. 3105.171 and the award of spousal support without applying the factors set out in R.C. 3105.18.3 3 R.C. 3105.171(C)(1) provides: Except as provided in this division or division (E) of this section, the division of marital property shall be equal. If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in the manner the court determines equitable. In making a division of marital property, the court shall consider all relevant factors, including those set forth in division (F) of this section. R.C. 3105.18 provides: (C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or -11- installments, the court shall consider all of the following factors: (a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 [3105.17.1] of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because he will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of education of the parties; (i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; (j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party; (k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; (l) The tax consequences, for each party, of an award of spousal support; (m) The lost income production capacity of either party that resulted from that party's marital responsibilities; (n) Any other factor that the court -12- However, this court has held that R.C. 3105 applies to con- tested divorce proceedings and has no application to settlement agreements. Davis v. Davis (Apr. 18, 1996), Cuyahoga App. Nos. 68672, 69121, unreported, 1996 WL 191785. Furthermore, a court is not required to determine an equal property division as a condition precedent to the acceptance of a settlement agreement. Id., citing DiPietro v. DiPietro (1983), 10 Ohio App.3d 44. In a case similar to the matter now before us, the parties' attorneys represented to the court, on the record, that their clients had reached an agreement and proceeded to outline the terms that had been negotiated. The appellant did not indicate to the court that he disagreed with the settlement; however, following the hearing, the client told his attorney he did not like the agree- ment's terms and obtained new counsel. Thomas v. Thomas (1982), 5 Ohio App.3d 94, 96. Following a full hearing, the court determined that a settlement had been reached and approved the judgment entry of divorce and the division of property that had apparently been agreed upon in open court. Id. at 97. In response to appellant's allegations that the judgment entry was so unfair as to constitute an abuse of discretion, the Thomas court held that where a party has initiated negotiations leading to an `in-court' settlement stipulation incorporatingessentially all of his demands, he should not be permitted to contend that the court in approving and adopt- expressly finds to be relevant and equitable. -13- ing the bargain he struck has acted so unfairly as to constitute an abuse of discretion as a matter of law. Id. at 98. The Thomas court also noted that it was unable to find any authority in Ohio that requires that a court entering a judgment that incorporates the terms of an in-court settlement consider the factors set out in R.C. 3105.18. Id. at 100. In the case sub judice, the record clearly demonstrates that appellant was aware of all of the terms of the settlement agreement and that he assented to them. Both his attorney and the judge verified that he understood that he was accepting the agreement as had been negotiated. The trial court was under no duty to assess whether the terms of the agreement were equitable. Moreover, although appellant does not deny that he agreed to the terms of the agreement in open court, he contends that when he saw it in writing, he refused to sign the entry; however, an in-court agreement concerning the division of property and alimony adopted by the court as its judgment is enforceable by the court and may be incorporated into the judgment entry even in the absence of an agreement in writing or an approval of the judgment entry signed by a party or his attorney. Holland v. Holland (1970), 25 Ohio App.2d 98; see, also, Gulling v. Gulling (1990), 70 Ohio App.3d 410, para- graph two of the syllabus (in-court settlement agreement may be adopted by court, incorporated into journal entry and enforced even in absence of written approval by one party.) The trial court did not err when it approved the journal entry that incorporated the parties' in-court agreement. -14- Appellant's assignment of error is overruled. -15- It is ordered that appellee recover of appellant her 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 Cuyahoga County Court of Common Pleas, 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. PATRICIA BLACKMON, A.J. and LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO 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 .