It can be readily discerned from the opinion and concurrences in this matter that the court is dismayed by the procedural history of this matter. It is important not only that a judge avoid direct violations of the judicial canons, but also that he or she avoid even the appearance of impropriety. This is an imperative if we are to uphold public confidence in the fairness and impartiality of the bench. Like my colleagues, I do not believe that this matter was handled in all respects in a manner befitting the dignity of the bench and bar. I must, however, agree with the other members of this panel that appellant's claims here are without merit for two reasons.
First, appellant cannot claim that the initial agreement was the product of collusion or duress. The majority opinion clearly outlines that the record is devoid of any such evidence. While appellant's ex-husband was a lawyer and she did meet with him in chambers without benefit of counsel, the record reflects that she did so willingly. In fact, appellant may not possess a law degree, but she is a highly educated woman and is apparently able to speak for herself. The record reflects that after she met for this settlement conference, she had ample opportunity to meet with and did meet with her own attorney afterward. Her attorney counseled her against certain portions of the proposed settlement. Nonetheless, the next day, after benefit of several hours of reflection on the matter and counsel from her own attorney, the record shows that appellant unhesitantly entered into the settlement agreement. In fact, she swore in open court that she was agreeing to the settlement terms of her own free will and was not under any type of coercion.
The second reason that appellant's claims are meritless is that all of these claims have been fully heard before a second, impartial finder of fact on appellant's motion for a new trial. Appellant asked that the original trial judge recuse himself from hearing her motion. Her request was granted. There are no claims that the new judge who was assigned was not fair, impartial, and unbiased. This judge held a hearing on the matter and after reviewing both the record and the demeanor of the witnesses and credibility of the evidence presented at this hearing concluded in her fairly exhaustive findings of fact and conclusions of law that appellant was not entitled to a new trial in the matter and that the original settlement agreement that was journalized by the court was valid.
In order for this court to overturn the judge's decision, we must find that she abused her discretion. The majority opinion cites Blakemore v. Blakemore *Page 358 (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140, to define an "abuse of discretion", as an act that is unreasonable, arbitrary, or unconscionable. Further, this court may not independently weigh the evidence contained in the motion hearing below, as we must presume that the trial court's findings of fact are correct. Miller v. Miller (1988), 37 Ohio St.3d 71,523 N.E.2d 846.
As there is no allegation of impropriety on the part of the judge who heard the motion for new trial and that judge was thorough and meticulous in her handling of the matter, if there was once a question of the accuracy and completeness of the record there can be none now.
Based on the above, I concur with the majority and affirm the judgment of the trial court.