Although I concur with the majority with respect to the second assignment of error, I must respectfully dissent from the majority's finding that the trial court erred in granting appellees' motion for summary judgment.
The issue in this case is what insurance was the deceased required to maintain for his child pursuant to the terms of the divorce decree. The transcribed separation agreement which was incorporated into the divorce decree referred to only one policy — the Metropolitan Life policy. In contrast, the judgment, which is used to memorialize the separation agreement, incorporated the agreement but then ordered the decedent to designate his child as beneficiary of several policies.
It is admitted on the record that the decedent's insurance policies with Merrill, Lynch were in existence at the time of the divorce. However, nothing in the two divorce documents contains any reference to insurance through an employer. In addition, after examining the post-decree motions, the same trial judge who handled the divorce and original judgment found that appellant's counsel did not "furnish or identify any policy other than Metropolitan Life (No. 656 628 488 A) which was in effect during the time of the decedant [sic] Defendant's employment with Merrill Lynch." The trial court did not deny the existence of other policies but rather stated that appellant failed to identify any policy other than Metropolitan Life to be included in the judgment.
Ohio law clearly states that a judgment may be interpreted if it is ambiguous. Dorsky v. Dorsky (Dec. 10, 1981), Cuyahoga App. No. 43587, unreported (citing to James v. The Hotel Honing Co. [1916], 6 Ohio App. 162; Ellis v. Ellis [1953], 94 Ohio App. 339, 52 Ohio Op. 14, 115 N.E.2d 180; Hofer v. Hofer [App. 1940], 35 Ohio Law. Abs. 486, 42 N.E.2d 165). Therefore, the trial court in the case sub judice had the power to interpret its own judgment of the divorce decree based upon all the facts of the case.
This court will not reverse absent an abuse of discretion. InBlakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142, the term was defined as follows:
"The term `abuse of discretion' was defined by this court inState v. Adams (1980), 62 Ohio St. 2d 151, 157 [16 Ohio Op. 3d 169]:
"`The term "abuse of discretion" connotes more than an error of law or *Page 6 judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 Ohio Op. 148]; Conner v. Conner (1959), 170 Ohio St. 85 [9 Ohio Op. 2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St. 2d 372 [2 Ohio Op. 2d 484].'"
In the case sub judice, it is my considered opinion that the appellant has failed to meet her burden to establish abuse. The appellant has not demonstrated that the trial court was arbitrary or unconscionable in finding that the divorce decree only required the decedent to maintain the Metropolitan Life Insurance policy.
Accordingly, I would affirm the trial court's decision. *Page 7