Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE: J.W. A Minor Child [Appeal By Father]
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
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.
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.
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.
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.
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.
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).
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.
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.
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