COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73510 ALLAN L. IPSON : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DZINTRA A. IPSON : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Domestic Relations Division, Case No. D-110983. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: MAUREEN FIORELLI ZITO 610 Genesis Building 6000 Lombardo Center Cleveland, Ohio 44131 For Defendant-appellant: DZINTRA A. IPSON, PRO SE 10046 Darrow Road Twinsburg, Ohio 44087 -2- SWEENEY, JAMES D., J.: The defendant-appellant Dzintra Ipson appeals from the October 15, 1997 order of the Cuyahoga County Common Pleas Court, Domestic Relations Division, which found her in contempt of the court's order of November 29, 1995. The appellant also appeals the court's affirmance of the magistrate's order which held that plaintiff- appellee Allan Ipson was excused from payment of his daughter's college expenses. On April 22, 1980, the appellee's petition for dissolution of the marriage was granted. The appellant and the appellee have one child of the marriage, Kaija (d.o.b. August 7, 1975). The court's order incorporated the separation agreement which contained the following pertinent provisions: 5. It is the intention of the parties, so far as possible, to arrange the custody and control of their child in such a manner as to afford both parties ample opportunity to enjoy the society of their child and to participate fully in the decisions affecting her mode of life, education, health and other interests. To affect the foregoing, the parties agree that the Wife shall have sole custody and control of their child and supervision of her care, subject to the following rights of the Husband: **** (c) On all matters of importance relating to the child's health, education, travel and summer camps, the Wife shall confer with the Husband with a view to adopting and following a harmonious policy calculated to promote the best interests of their child. If the parties cannot reach such an agreement by consensus, the Wife shall make the final decision with respect to these matters. In the event any such matters are considered by the Wife and not brought to the attention of the Husband for purposes of discussion and decision, the Husband shall not be financially responsible for expenses directly attributable to such decision in such matter, unless he has unreasonably withheld his consent thereto or unless -3- the decision was made by the Wife under circumstances which did not permit sufficient time for her to confer with the Husband. *** 7. The Husband shall make the following payments for the support, maintenance and care of the child: *** (b) In addition to the foregoing payments for the support of the child, the Husband shall pay the expenses of sending the child to summer camp until such child has reached the age of eighteen (18) years, tuition fees plus a reasonable living allowance for schooling, from nursery school through graduate school, if any, as the circumstancesof the child may require; and the expenses of providing medical, dental, surgical, nursing and hospital care to the child, provided the Wife shall not, without the prior consent of the Husband, make any commitment for such expenses, except in the event of emergency health care. The Husband shall pay these expenses directly upon presentation of a proper statement of charges from the payee by the Wife. *** 14. If the Husband fails in the due performance of his obligations hereunder, the Wife shall have the right at her election, to sue for damages for breach of this Agreement or to rescind same and seek such legal remedies as may be generally available to her. In the event the Wife so sues, Husband shall pay all costs of suit, including reasonable attorney's fees, if she is successful. Nothing herein shall be construed to restrict or impair the right of Wife to exercise this election. On April 11, 1994, the appellee filed four motions: a motion to show cause; a motion for attorney fees; a motion to modify child support, or in the alternative: motion to clarify record. In essence, the appellee sought to avoid payment of his daughter's college expenses because the appellant failed to consult him regarding the daughter's education. The appellee acknowledged that his daughter was a student at the Ohio Agricultural Technical -4- Institute and he affirmed that the appellant had requested payment of $14,461.00 for college tuition and a reasonable living allowance for the 1993-1994 school year. On August 21, 1994, the appellant filed a motion for contempt requesting that the appellee show cause why he failed to pay the daughter's college expenses. On February 10, 1995, these motions were dismissed without prejudice by the court for want of prosecution. On September 21, 1995, the appellee motioned the court to reinstate the above motions of the appellee and the motion of the appellant. This request was granted on October 10, 1995. The matter was referred to a referee for hearing after which the referee accepted the parties' agreed resolution and assessed costs against both parties equally. The agreed judgment entry was signed by the court and journalized on November 29, 1995. The agreement itself obligated the parties to dismiss their respective motions, obligated the appellee to pay $12,461.00 for college expenses, and obligated the appellee to pay the appellant's legal fees. Further the agreement stated: 6. Father is to be provided with information relating to Kaija's education and living arrangements, including but not limiting same to Kaija's address, telephone number, grades, curriculum, schooling, housing, and other pertinent costs, as requested by Father. He shall be provided with such information, during the pendency of the within agreement, so long as Father is in compliance with this Order. Within thirty (30) days of Father's request for information, Mother shall provide Father with all such information. She shall forward same to him by certified mail, return receipt requested.* No monies shall be paid until the Father receives all requested information. Upon Father's receipt of requested information, he shall pay requisite sums within sixty (60) days of his receipt of information, so long as all other terms of this agreement are in compliance. -5- 7. The parties' existing provisions, relating to post- high school educational costs of the daughter, Kaija, shall remain in full force and effect, with the following modifications: . . . . 8. All documentation to be provided to Husband on a timely basis. Timely basis shall be interpreted to mean no later than sixty (60) days prior to Father's obligation to act. Failure to do so shall preclude Father's financial responsibility for same. Text at asterisk omitted. Subsequent to this agreement, on September 4, 1996, the appellant filed a motion to show cause. On September 9, 1996, the appellant filed a motion to show cause and a motion for judgment. The magistrate's decision on these motions was filed on January 22, 1997. The magistrate found in favor of the appellee, noting that the original separation agreement was supplanted by the subsequent agreement entered on the Court's journal on November 29, 1995. The appellant filed objections to the magistrate's report specifically pointing out that the agreement states that the existing obligation pertaining to post-high-school education remained in effect. The trial court adopted the magistrate's decision and dismissed the appellant's motions for failure to state a claim upon which relief could be granted. Costs were assessed against the appellant. The docket indicates that on November 13, 1996, the appellee filed a motion to show cause and a motion for attorney fees. The magistrate found that the appellant was notified by certified mail, but failed to appear. The magistrate found: By prior order (Divorce Journal Volume 2708 page 743) dated November 29, 1995 [appellant] was to pay for the parties' daughter's higher education conditioned upon -6- [appellee] meeting certain conditions. [Appellee] was entitled to receive, pursuant to the prior order, upon his request from [appellant] certain information. Subsequent to the journalization of the order [Appellee] requested the parties' daughter's address, phone number, college transcripts and actual receipts for the daughters expenses for which he was being asked to pay. [Appellee] received the address and phone number, but received no transcripts or any documentation from the daughter's school. [Appellant] provided no receipts for the daughter's expenses, only giving the [appellee] a handwritten statement of the child's alleged expenses without any backup documentation. The prior order clearly requires [appellant] to provide in full the information [appellee] requested. [Appellant] has failed to comply with the order. [Appellant] is in contempt of Court. The magistrate sentenced the appellant to 10 days in jail for contempt, or in the alternative, to perform not less than 200 hours of community service. In the event that community service was imposed, the appellant would be required to pay $65 as administrative costs. The appellant would be able to purge her contempt providing that she fully satisfy the judgment. Additionally, the magistrate ordered that the appellant pay the appellee's attorney fees in the sum of $937.50. Costs were assessed against the appellant. The appellant filed objections to the magistrate's report, and the appellee filed a brief in opposition. The appellant pointed out that the magistrate erred in stating that the appellant was responsible for the daughter's higher education, not the appellee. The appellant stated that the November 29, 1995 order does not require a transcript, that the appellee was provided with the information he requested, and that he still refused to pay. The appellant asserted that color coded receipts were provided to -7- appellee at the very first hearing before the court, the receipts for the first year totaled $14,461, of which the appellee forwarded only $2,000. The appellant requested that the court enforce the 1980 settlement agreement since the daughter had matriculated from college, leaving the amendment outdated. The court sustained the appellant's errors as to the typographicalerrors, but affirmed the balance of the magistrate's report. It is from this order that the appellant appeals. The appellant pro se has set forth various arguments in her brief. Overall, the appellant seeks enforcement of the unconditional provision for educational expenses made in the 1980 divorce decree. It is clear from the brief that the appellant believes the 1980 divorce decree to be the controlling document, and that the appellee is unconditionally required to finance his daughter's college education. As near as can be ascertained, the appellant has set forth the following arguments: 1) The daughter has been emancipated, and that the person who has the right to determine the disclosure of the information sought by the appellee is the daughter, not the appellant. Since the divorce decree requires the appellee to pay the college expenses, and the appellant is not in a position to disclose the required information, the appellee should be required to pay the expenses as agreed. 2) There were oral promises made after the appellee's deposition which should be enforced. The appellant states that the expenses were presented at a hearing before a referee in 1994; that -8- these expenses were placed on the record as an exhibit; that these expenses were approved by the appellee; and that the appellee failed to pay. The appellant admits that the appellee has paid a total of $2000 towards his daughter's education. 3) Appellant asserts that she was provided ineffective assistance of counsel by the pressure and coercion exerted by her counsel which led to her signing the agreed judgment entry. 4) The appellee's attorney led the court into areas which were not pertinent to the issue at hand such as visitation, the daughter's school performance and the fact that the appellee was unrepresented at the time of the dissolution and separation agreement. The appellant states that the court considered collateral issues and failed to stick to the main issue, that of the appellee's agreement to pay for the daughter's education. 5) The appellant believes that she has been condemned for attempting to enforce the 1980 divorce decree and the 1995 supplement. The appellant states that she has provided all necessary documentation. 6) The 1995 supplement to the divorce decree should be considered null and void as it is not in the daughter's best interest. The 1995 agreement should be considered outdated since the daughter graduated from college in 1996 and has been unable to continue her education due to lack of funds. 7) The appellee is in contempt for failure to pay and the appellant should not have to pay attorney fees. The appellant -9- requests that although she has no attorney, she should be paid for her time. 8) Prior to the filing of motions, written requests were made to the appellee for payment, but the appellee ignored the requests and the documentation. 9) The appellant attempted to comply with the requirements to consult with the appellee through written correspondence, telephone conversations, and invitations to the appellee to visit college campuses. The appellee chose not to participate in the choice of college although materials were sent to him for his review. Meetings between the parents were scheduled and then re-scheduled because the appellee would not participate. Since she complied with the requirements in the 1995 agreement, the appellant seeks to have the contempt citation overturned. 10) The divorce decree gave the appellant the right to make the final choices if the parents were unable to agree. The appellant argues that the 1995 agreement did not override this provision. 11) The appellee admitted in his deposition that he is financially able to pay for his daughter's education. The Supreme Court has stated that a dissolution is a creature of statute that is based upon the parties' consent. The Court held: It is this mutuality component of a dissolution that distinguishes it from termination of a marriage by divorce. Indeed, mutual consent is the cornerstone of our dissolution law. Knapp v. Knapp (1986), 24 Ohio St.3d 141, 144, 24 OBR 362, 364, 493 N.E.2d 1353, 1356. An integral part of the dissolution proceeding is the -10- separation agreement agreed to by both spouses. R.C. 3105.63(A)(1). The separation agreement must provide for a division of all property. Id. The separation agreement is a binding contract between the parties. In re Adams (1989), 45 Ohio St.3d 219, 220, 543 N.E.2d 797, 798. If the court is satisfied that both parties agree to the dissolution and to the terms of the separation agreement, then a judgment or decree of dissolution is granted whereby the marriage is legally terminated. R.C. 3105.65(B). The statute provides for relief from the final judgment in strictly limited circumstances because both parties agreed and consented to the terms of the separation agreement and dissolution of the marriage. Courts retain only limited jurisdiction in dissolution proceedings. A court retains continuing jurisdiction to enforce the decree and to modify issues pertaining to the allocation of parental rights and responsibilities for the care of the children, to the designation of a residential parent and legal custodian of the children, to child support, and to visitation. R.C. 3105.65(B) Footnote omitted, italics original. See In re Whitman (1998), 81 Ohio St.3d 239, 241. Pursuant to Whitman, supra, the Domestic Relations Court retained jurisdiction over this case to resolve the dispute between the parties concerning the payment for the daughter's college expenses as an allocation of parental rights and responsibilities. As the court noted in Wolfinger v. Ocke (1991), 72 Ohio App.3d 193, 198, where parents enter into a separation agreement, the agreement, in part, creates benefits for the child. The child is a third-party beneficiary to the agreement. Harding v. Harding (March 17, 1994), Cuyahoga App. No. 64851, unreported, citing to Wolfinger, supra, and to Smith v. Smith (1964), 7 Ohio App.2d 4, 7- 9. The merger of the separation agreement into the decree does not alter the fundamental nature of the agreement; the child still -11- retains his or her third-party beneficiary status. Wolfinger at 198. Individual signators to a separation agreement may not modify the rights of third-party beneficiaries without their consent and those beneficiaries may enforce the beneficial provisions of the agreement. Id. In Rohrbacher v. Rohrbacker (1992), 83 Ohio App.3d 569, the court found that during a child's minority, a domestic relations court has the jurisdiction to alter the provisions of its decree which relate to the college education of that child upon proper motion of, or by consent of, the parties. However, once the child attains the age of majority as set forth in R.C. 3109.01, the court is without the jurisdiction to modify those provisions without the consent of the third-party beneficiary the child of the parties. Rohrbacher citing to Wolfinger. In such a case, the court is limited to the enforcement of those provisions through its continuing jurisdiction over the parties to the separation agreement. Rohrbacker, supra. In enforcing an original order, the trial court is required to construe the terms of the separation agreement in order to effectuate the intent of the parties. Id., citing to Forstner v. Forstner (1990), 68 Ohio App.3d 367, 372. Where the terms of the clause are confusing or ambiguous, the court is accorded broad discretion in the clarification of those terms and can resolve the dispute by considering not only the intent of the parties, but also the equities involved. Rohrbacker citing to In re Dissollution of the Marriage of Seders (1987), 42 Ohio App.3d 155. It is well established in Ohio that when the terms of a -12- contract are clear and unambiguous, courts cannot find an intent different from the one expressed in the contract. In re Dunn (1995), 101 Ohio App.3d 1. In the case sub judice, the daughter of the parties, Kaija, was born on August 7, 1975, thus, pursuant to R.C. 3109.01, she reached the age of majority on August 7, 1993. Because the agreement regarding payment for her college expenses was not entered into until 1995, it must be held to be invalid since, as the third-party beneficiary, she was not consulted and did not consent to the modifications made to the 1980 settlement agreement. Each of the court's subsequent orders pertaining to the invalid agreement is therefore void. The original 1980 settlement agreement, incorporated into the dissolution agreement, provides at Section 5(c) that the appellant and the appellee, as far as possible, will participate fully in the decision affecting Kaija's education. The appellant was to consult with the appellee to promote the best interests of the child. Where no agreement is reached, the appellant retained the right to make the final decision. If the decision was not brought to the notice of the appellee for purposes of discussion and decision, the appellee would be excused from financial liability. Section 7(b) of the agreement states that the appellee shall pay expenses of Kaija's tuition fees plus a reasonable living allowance for schooling, from nursery school through graduate school. The sentence continues, and requires that the appellant needs consent of the appellee prior to making any commitment for -13- such expenses. The appellee must pay the expenses upon presentation of a proper statement from the appellant. This court finds that the agreement expresses the clear and unequivocal intent of the parties that the appellee shall pay for his daughter's college expenses, but that prior to incurring those expenses, the appellant must have notified the appellee for the purposes of discussion. It is clear that the appellee need not, at his choosing, have participated in the decision-making process, nor does the agreement require that the appellee agree with the final decision of the appellant. So long as the appellant simply notified the appellee, the provisions of the agreement would have been fulfilled. Notification might, for example, entail one telephone call, a written note to the appellee, or some attempt to arrange a meeting. The appellee may not unreasonably withhold consent. It is also clear that the agreement provides that the appellant provide proper documentation to the appellee; i.e. canceled checks, credit card receipts, or statements from the college. The trial court's imposition of costs, attorney fees and the contempt citation were all based upon decisions surrounding an invalid document and are thus overturned. This case is remanded to the trial court for a determination as to whether the parties complied with the provisions of the 1980 separation agreement. Judgment reversed and remanded for hearing. -14- This cause is reversed and remanded for hearing. It is, therefore, considered that said appellant recover of said appellee her 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. Exceptions. KENNETH A. ROCCO, P.J., and MICHAEL J. CORRIGAN, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .