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In re J.W.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 9, 2017

IN RE: J.W. A Minor Child [Appeal By Father]

         Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. CU-16106847 and CU-16106848.

          ATTORNEY FOR APPELLANT Carol Dillon Horvath.

          ATTORNEYS FOR APPELLEE CJFS-OCSS Michael C. O'Malley Cuyahoga County Prosecutor By: Timothy W. Clary Assistant Prosecuting Attorney Mother.

          BEFORE: Keough, A.J., E.T. Gallagher, J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

         {¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a brief and conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 1.

         {¶2} In April 2016, Father filed an application to determine custody of his and Mother's two minor biological children. At a subsequent pretrial, Father advised the magistrate that he wished to be named legal custodian because he paid child support (as ordered in an earlier case) and all other expenses for the children, but was concerned about the level of care the children received while they were with Mother. The court appointed a guardian ad litem for the children, and advised the parties to cooperate with the guardian ad litem's investigation and work toward a resolution of the matter.

         {¶3} On December 13, 2016, the day of trial, the parties advised the court that they had settled the matter. Father, Mother, and the guardian ad litem appeared before the magistrate; neither Father nor Mother had counsel. During the hearing, the magistrate reviewed the parenting time agreement signed by Father and Mother on December 12, 2016. Upon questioning, Father and Mother each advised the court that they had signed the agreement, believed it to be in the best interest of their children, and wanted the court to adopt the agreement as its order. The guardian ad litem recommended approval of the agreement as in the best interest of the children.

         {¶4} Thereafter, the magistrate entered a decision designating Mother as the residential parent and legal custodian, ordering that the children would live with Mother, subject to Father's right to parenting time as set forth in the parenting time schedule agreed to by the parties, and approving and adopting the terms of the parenting time agreement. The agreement signed by the parties was incorporated into the magistrate's decision. Father did not file any objections to the magistrate's decision, and the trial court subsequently approved and adopted the decision, incorporating the agreement as an exhibit to the journal entry. This appeal followed.

         {¶5} In his single assignment of error, Father asserts that the trial court's judgment should be reversed because he thought he was agreeing to a shared parenting agreement. He contends that his unilateral mistake of fact, coupled with the trial court's alleged failure to determine with certainty that he understood the agreement, requires reversal. We overrule Father's assignment of error and affirm the trial court.

         {¶6} Settlement agreements are generally favored in the law. Szmania v. Szmania, 8th Dist. Cuyahoga No. 90346, 2008-Ohio-4091, ¶ 8. As with usual contract interpretation, the court's role is to give effect to the intent of the parties as reflected in the agreement. Jackson v. Jackson, 5th Dist. Richland No. 12CA28, 2013-Ohio-3521, ¶ 22. The enforceability of a settlement agreement "'depends upon whether the parties have manifested an intention to be bound by its terms and whether these intentions are sufficiently definite to be specifically enforced.'" In re J.S.C., 8th Dist. Cuyahoga No. 104548, 2017-Ohio-968, ¶ 18, quoting Tryon v. Tryon, 11th Dist. Trumbull No. 2007-T-0030, 2007-Ohio-6928, ¶ 23. A settlement agreement does not have to be fair and equitable to be binding and enforceable, so long as it is not procured by fraud, duress, overreaching, or undue influence. J.S.C. at ¶ 19, citing Vasilakis v. Vasilakis, 8th Dist. Cuyahoga No. 68763, 1996 Ohio App. LEXIS 2569 (June 20, 1996).

         {¶7} In some circumstances, a party to an agreement who makes a unilateral mistake in entering into the agreement is permitted to avoid the mistake by rescinding the agreement, which is what Father seeks in this case. Under Ohio law, a unilateral mistake occurs when one party recognizes the true effect of an agreement while the other does not. Gen. Tire, Inc. v. Mehlfeldt, 118 Ohio App.3d 109, 115, 691 N.E.2d 1132 (9th Dist.1997). A unilateral mistake can be grounds for rescission of a contract if the other party had reason to know of the mistake or was at fault in causing the mistake such that enforcing the contract would be unconscionable. Richmond v. Evans, 8th Dist. Cuyahoga No. 101269, 2015-Ohio-870, ¶ 31. Relief for a unilateral mistake will not be granted where the party seeking relief bore the risk of the mistake or where the mistake was the result of that party's own negligence. Id., citing Jackson v. Jackson, 5th Dist. Richland No. 12 CA28, 2013-Ohio-3521, ¶ 23-26.

         {¶8} The party asserting unilateral mistake must prove it by clear and convincing evidence. Gartrell v. Gartrell, 181 Ohio App.3d 311, 908 N.E.2d 1019 (5th Dist.2009). Clear and convincing evidence is evidence that produces in the mind of the trier of fact "a firm belief or conviction as to the facts sought to be established." In re T.P., 8th Dist. Cuyahoga No. 102705, 2015-Ohio-3679, ¶ 34.

         {¶9} Here, the record reflects that Father and Mother made a binding and enforceable settlement agreement. Father has failed to establish by clear and convincing evidence any unilateral mistake; in fact, the record reflects that Father ...


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