Cable v. Cable

[Cite as Cable v. Cable, 2023-Ohio-2041.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

RACHEAL DIANE CABLE : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Andrew J. King, J.
-vs- :
: Case No. CT2022-0080
:
JASON JAMES CABLE :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Domestic
Relations Division, Case No. DA2021-
0266

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: June 20, 2023

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

BRIAN W. BENBOW JASON JAMES CABLE, PRO SE
265 Sunrise Center Drive. 1201 Colony Dr. #63
Zanesville, OH 43701 Zanesville, OH 43701
Muskingum County, Case No. CT2022-0080 2

Delaney, J.

{¶1} Defendant-Appellant Jason James Cable appeals the October 20, 2022

Judgment Entry Divorce Decree issued by the Muskingum County Court of Common

Pleas, Domestic Relations Division.

FACTS AND PROCEDURAL HISTORY

{¶2} Defendant-Appellant Jason James Cable (“Husband”) and Plaintiff- Appellee

Racheal Diane Cable (“Wife”) were married on September 20, 2011. One child was born

prior to the marriage in June 2010, for whom Husband has admitted paternity, and

another child was born in October 2012 as issue of the marriage.

{¶3} Wife filed a complaint for divorce on April 23, 2021 with the Muskingum

County Court of Common Pleas, Domestic Relations Division. Husband filed an answer

and counterclaims on June 18, 2021. After multiple motions for temporary orders, the trial

court issued a judgment entry on September 29, 2021. The trial court named Wife as

temporary custodian of the children and established a parenting schedule. It further

entered temporary orders as to the division of marital debts and assets.

{¶4} Husband’s trial counsel filed a motion to withdraw on April 1, 2022, which

was granted by the trial court. New trial counsel for Husband filed a notice of appearance

on April 18, 2022.

{¶5} Via judgment entry filed on May 31, 2022, the trial court stated a final

hearing had been held on May 25, 2022. The judgment entry stated:

The parties informed the Court they had reached agreement on all pending

matters and read their agreement into the record. Attorney Brian Benbow
Muskingum County, Case No. CT2022-0080 3

shall file with the Court a Decree of Divorce within twenty-one (21) days of

the date of this Judgment Entry, executed by counsel of record.

(Judgment Entry, May 31, 2022). The parties did not file a transcript of the May 25, 2022

final hearing with this appeal.

{¶6} On July 7, 2022, the trial court issued a judgment entry stating that it had

ordered the parties to submit an Agreed Settlement Entry within 21 days of May 31, 2022.

The parties failed to submit the Agreed Settlement Entry setting forth the agreement. The

trial court ordered the parties to appear before the court on August 3, 2022, unless they

submitted the Agreed Settlement Entry prior to the hearing.

{¶7} Wife filed a Motion to Enforce Settlement on July 25, 2022. The motion

stated, “Although opposing counsel stated a general objection some time thereafter, there

has not been any specific communication regarding anything in this Consent Judgment

Entry being inaccurate.” (Motion to Enforce Settlement, July 25, 2022).

{¶8} On July 28, 2022, the trial court provided the parties with an electronic

recording of the May 25, 2022 trial court proceedings.

{¶9} A show cause hearing was held on August 3, 2022. There is no transcript

of the August 3, 2022 hearing in the appellate record. On August 8, 2022, the trial court

ordered the parties to file the Agreed Settlement Entry by August 26, 2022. The parties

did not file the Agreed Settlement Entry. The trial court issued a judgment entry on August

30, 2022, which ordered the parties to file the Agreed Settlement Entry or appear before

the trial court on September 29, 2022.
Muskingum County, Case No. CT2022-0080 4

{¶10} Wife filed a motion for extension asking for additional time to file the Agreed

Settlement Entry. The motion stated Husband’s counsel had suggestions for the

settlement entry. The trial court granted an extension until September 8, 2022.

{¶11} On September 8, 2022, Wife filed a supplemental motion to enforce

settlement. The motion alleged that Husband sought to renegotiate the terms of the

settlement agreement, which the parties presented to the trial court on May 25, 2022.

{¶12} A show cause hearing was set for September 29, 2022. The trial court

issued a judgment entry on September 12, 2022. The entry stated in part, “Counsel were

each provided an audio recording of the final hearing wherein the parties recited their

agreement on July 27, 2022, and a show cause hearing was held on August 3, 2022.

Counsel was informed by the Court that the submitted entry contained provisions

inconsistent with the record and were instructed to draft an appropriate entry utilizing the

audio recordings provided.” (Judgment Entry, Sept. 12, 2022). The parties failed to

comply with the trial court’s orders to file the Agreed Settlement Entry. The trial court

therefore ordered:

The agreement read into the record and ratified by the parties has been

approved by the Court as the final judgment in this matter. The record is

clear, and both parties have been provided a copy of the audio recording of

the hearing. A final judgment entry Decree of Divorce incorporating the

terms read into the record shall be prepared and submitted to the Court in

accordance with the Court’s Local rules and shall be adopted by the Court

so long as it is consistent with the record. Should no such agreement be

submitted and approved prior to September 29, 2022, the parties and
Muskingum County, Case No. CT2022-0080 5

counsel of record shall appear as previously ordered. Plaintiff’s Motions to

Enforce Settlement shall be heard on that date.

(Judgment Entry, Sept. 12, 2022).

{¶13} Husband filed a response on September 16, 2022, stating that his version

of the settlement negotiations with Wife and her counsel would be presented at the

September 29, 2022 show cause hearing. Wife filed a reply on September 21, 2022.

{¶14} The show cause hearing went forward on September 29, 2022. There is no

transcript of the hearing in the appellate record. The trial court issued its judgment entry

on October 4, 2022. The judgment entry stated that Husband asserted an objection to the

Agreed Settlement Entry prepared by Wife but failed to follow the trial court’s local rule

and file the objection in writing. “The parties’ agreement was read into the record at final

hearing and approved by the Court as the final decision in the matter. The Court finds it

appropriate to enforce the terms of the parties’ settlement agreement as read into the

record.” (Judgment Entry, Oct. 4, 2022). Wife was ordered to provide Husband with the

proposed Consent Judgment Entry Decree of Divorce within one business day of the date

of the judgment entry. Husband was ordered to file any written objections to the Consent

Judgment Entry Decree of Divorce within seven days. If no objections were filed, the trial

court stated it would adopt the Consent Judgment Entry Decree of Divorce as the final

order of the court.

{¶15} Wife submitted the proposed Consent Judgment Entry Decree of Divorce

to the trial court on October 6, 2022.

{¶16} Husband filed an objection to Wife’s proposed Consent Judgment Entry

Decree of Divorce on October 12, 2022. Husband stated his objection “arises from the
Muskingum County, Case No. CT2022-0080 6

ambiguities contained in Paragraph 13(a) and (b). Plaintiff insisted upon an October 1,

2021, date for the termination of the marriage. Thus, it is ambiguous as to the obligor on

any balance on the Pay Pal and Care credit cards. It is Mr. Cable’s contention that these

obligations are the Plaintiff’s and the Paragraph 13 needs to be re-drafted to clear up that

ambiguity.” (Objection to Proposed Judgment Entry, Oct. 12, 2022).

{¶17} Husband filed a supplemental objection on October 13, 2022. The

supplemental objection was based on “the ambiguities contained in Paragraph 20 and

the provisions for the tax returns beginning on page 15. For tax year 2021 the parties

were to file head of household with each taking the deduction for one (1) of the minor

children. Plaintiff took both minor children. This, the tax year in Paragraph 20 should be

2021.” (Supplemental Objection to Proposed Judgment Entry, Oct. 13, 2022).

{¶18} On October 20, 2022, the trial court filed the Judgment Entry Decree of

Divorce.

{¶19} Husband filed a pro se appeal of the October 20, 2022 Judgment Entry

Decree of Divorce.

ASSIGNMENTS OF ERROR

{¶20} Husband sets forth no Assignments of Error, as required by App.R.

16(A)(3). In the “Factual History” section of Husband’s pro se appellant’s brief, he sets

forth the following issues with the Decree of Divorce:

I. In Paragraph 11 sections B and C were not put in the records in our final

divorce hearing.

II. In Paragraph 13 Sections A, B, and C this is incorrect information and

the Defendant did not agree to this deal.
Muskingum County, Case No. CT2022-0080 7

III. Paragraph 15 Sections A, B, and C Retirement Accounts; the numbers

are incorrect in this section.

IV. Paragraph 16 Section B Husband the Defendant did not receive most of

his stuff as he was not allowed to enter his own house to retrieve his

property.

V. Paragraph 22 and 23 on residential parents of the kids. The Defendant

is appealing this because the children would like to live with the Defendant.

VI. Paragraph 33 thru 46 on using; the Our Family Wizard app.

{¶21} Although Husband has presented no Assignments of Errors for our review,

in the interest of judicial economy we shall construe the above to be Assignments of Error

for purposes of the disposition of this appeal.

ANALYSIS

I.

{¶22} In his first Assignment of Error, Husband contends Paragraph 11, Sections

B and C, were not put in the records in the final divorce hearing. Paragraph 11 of the

October 20, 2022 Judgment Entry Divorce Decree relates to the parties’ vehicles. Section

B awards the 2020 Jiangsu BD125-11 sports bike to Wife. Section C awards the 2019

Chrysler Pacifica 2wd Sport Van, purchased by Wife with separate funds after the

marriage was terminated, to Wife. Wife was to hold Husband harmless for the debt on the

van. Husband states in his appellate brief that the two vehicles were not listed on the

marital balance sheet.

{¶23} Husband did not provide this Court with the transcript of the May 25, 2022

hearing where the settlement agreement was read into the record. Husband did not
Muskingum County, Case No. CT2022-0080 8

provide the transcripts of any of the show cause hearings where the parties allegedly

disputed the terms of the settlement agreement.

{¶24} When portions of the transcript necessary for resolution of an assigned error

are omitted from the record on appeal, the reviewing court has nothing to pass upon and

thus has no choice but to presume the regularity or validity of the lower court's

proceedings and affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400

N.E.2d 384, 385(1980). Accordingly, given the absence of an appropriate record to

support Husband’s alleged error regarding whether the two vehicles were listed in the

settlement agreement presented to the trial court on May 25, 2022, we presume the

regularity of the trial court proceedings in approving and adopting the settlement

agreement.

{¶25} If such transcripts were unavailable, other options were available to

Husband in order to supply this Court with a transcript for purposes of review. Specifically,

under App.R. 9(C), Husband could have submitted a narrative transcript of the

proceedings, subject to objections from appellee and approval from the trial court. Also,

under App.R. 9(D), the parties could have submitted an agreed statement of the case in

lieu of the record. The record in this matter indicates Husband did not attempt to avail

himself of either App.R. 9(C) or 9(D). See Carroll v. Huber, 5th Dist. Stark No.

2022CA00073, 2022-Ohio-4712, 2022 WL 17959774, ¶ 30.

{¶26} We further note that on October 6, 2022, Wife submitted a final proposed

judgment entry to the trial court. The final proposed judgment entry lists the two vehicles

in Paragraph 11 and the proposed language in Sections B and C is identical to the

October 20, 2022 Judgment Entry Divorce Decree. Husband filed objections to Wife’s
Muskingum County, Case No. CT2022-0080 9

final proposed judgment entry on October 12, 2022 and October 13, 2022, but did not

raise any objection to Paragraph 11.

{¶27} Husband’s first Assignment of Error is overruled.

II.

{¶28} In his second Assignment of Error, Husband contends that in Paragraph 13

Sections A, B, and C, the information is incorrect, and he did not agree to the terms.

{¶29} Husband filed objections to Wife’s proposed Consent Judgment Entry

Decree of Divorce. Husband stated his objection “arises from the ambiguities contained

in Paragraph 13(a) and (b). Plaintiff insisted upon an October 1, 2021, date for the

termination of the marriage. Thus, it is ambiguous as to the obligor on any balance on the

Pay Pal and Care credit cards. It is Mr. Cable’s contention that these obligations are the

Plaintiff’s and the Paragraph 13 needs to be re-drafted to clear up that ambiguity.”

(Objection to Proposed Judgment Entry, Oct. 12, 2022).

{¶30} The October 20, 2022 Judgment Entry Divorce Decree states as follows:

13) The following debts are in Plaintiff’s name.

a) Pay Pal Credit Card. Defendant shall further pay and hold Plaintiff

harmless from the PayPal Credit Card debt accrued after October 1, 2021,

and until the decree is filed. Plaintiff shall further be ordered to pay and hold

Defendant harmless from the PayPal Credit Card Debt accrued before

October 1, 2021. This total debt is approximately $3,349.06 as of May 25,

2022.

b) Care Credit Card. Defendant shall further pay and hold Plaintiff harmless

from the Care Credit Card Debt accrued after October 1, 2021 and until the
Muskingum County, Case No. CT2022-0080 10

decree is filed. Plaintiff shall further be ordered to pay and hold Defendant

harmless from the Care Credit Card Debt accrued before October 1, 2021.

This total debt is approximately $1,887.00.

c) The parties shall exchange statements to reflect the balance owed as of

October 1, 2021.

{¶31} “Where the parties enter into a settlement agreement in the presence of the

court, such an agreement constitutes a binding contract.” Jackson v. Jackson, 5th Dist.

Richland No. 12CA28, 2013-Ohio-3521, ¶ 22 quoting Tyron v. Tyron, 11th Dist. No.2007–

T–0030, 2007–Ohio–6928, ¶ 23 citing Walther v. Walther, 102 Ohio App.3d 378, 383, 657

N.E.2d 332 (1st Dist.1995). “In the absence of fraud, duress, overreaching or undue

influence, or of a factual dispute over the existence of terms in the agreement, the court

may adopt the settlement as its judgment.” Walther at 383, 657 N.E.2d 332. “The

enforceability of an in-court 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.” Tyron quoting Franchini v. Franchini, 11th

Dist. No.2002–G2467, 2003–Ohio–6233, ¶ 9, citing Normandy Place Assoc. v. Beyer, 2

Ohio St.3d 102, 105–106, 443 N.E.2d 161 (1982).

{¶32} Husband contends in his appellate brief that he did not agree to the terms

of Paragraph 13 and therefore, the trial court erred in adopting the same. In this case, we

do not have the transcript from the May 25, 2022 hearing where the settlement agreement

was read into the record; nor do we have the transcripts from the show cause hearings

held before the October 20, 2022 Judgment Entry Divorce Decree was filed. Without the

underlying record, we cannot discern whether the trial court erred in approving and
Muskingum County, Case No. CT2022-0080 11

adopting the settlement agreement because there was a factual dispute or Husband did

not agree to the terms. Pursuant to Knapp, we must presume regularity of the trial court

proceedings.

{¶33} Husband’s second Assignment of Error is overruled.

III.

{¶34} Husband contends in his third Assignment of Error that there is

misinformation in Paragraph 15, Sections A, B, and C. Paragraph 15 concerns the parties’

retirement accounts. The October 20, 2022 Judgment Entry Divorce Decree states:

Defendant has no retirement accounts.

a) Plaintiff’s retirement account, acquired through marriage, is a marital

asset worth $31,165.64.

b) Wife shall be solely responsible for the loan of $15,000 against the

401(K).

c) Each party shall be awarded ½ of Plaintiff’s retirement account as of

October 1, 2021, which account shall be divided by a Qualified Domestic

Relations Order prepared for and filed at Defendant’s sole cost. Defendant

shall be awarded $15,582.00. Plaintiff shall be awarded the balance.

{¶35} Husband argues the numbers in Paragraph 15 are not correct. According

to Husband, the audio recording of the May 25, 2022 hearing states that Wife owes

Husband $15,986.00. However, Husband did not make the transcript of the May 25, 2022

hearing or the audio recording part of the appellate record. Accordingly, pursuant to

Knapp, we must presume regularity of the proceeding and that the trial court did not err
Muskingum County, Case No. CT2022-0080 12

in approving the settlement agreement and finding that it fairly, justly, and equitably

divided the marital assets and allocated marital debt.

{¶36} Husband’s third Assignment of Error is overruled.

IV.

{¶37} In Husband’s fourth Assignment of Error, he argues the personal property

he was awarded in the October 20, 2022 Judgment Entry Divorce Decree was damaged

or he did not receive some property. He contends he should be awarded compensation

for those items.

{¶38} Husband’s assigned error relates to the parties’ execution of the terms of

the divorce decree. He does not raise an appealable error related to the trial court’s

findings in the October 20, 2022 Judgment Entry Divorce Decree. Husband’s fourth

Assignment of Error is therefore overruled.

V.

{¶39} Husband argues in his fifth Assignment of Error that the trial court erred

when it named Wife as the residential parent and legal custodian of their minor children.

{¶40} The October 20, 2022 Judgment Entry Decree of Divorce states in pertinent

part:

Shortly before the commencement of trial, both parties executed a

Settlement Agreement that was approved by this Court and stated on the

Record. * * * Both parties further stipulated that the settlement agreement

was in the best interest of their children. Both parties acknowledged the

same in open Court and on the Record.

***
Muskingum County, Case No. CT2022-0080 13

This Court, upon independent review of the same, finds that the Settlement

Agreement fairly, justly, and equitably divided marital assets and allocated

marital debt. The Settlement Agreement was further in the best interest of

the minor children. This Court hereby approves the same and incorporates

the Settlement Agreement in its entirety as fully rewritten herein * * *

***

22) Plaintiff shall be named the residential parent and legal custodian of [the

minor children].

{¶41} Husband contends on appeal that it was not in the best interest of the

children that Wife be named the residential parent and legal custodian. In support of his

appellate argument, he provides examples of incidents between Wife and the children to

show it was not in their best interest to be placed with Wife. The record shows that in

Husband’s objection and supplemental objection to Wife’s proposed Consent Judgment

Entry Decree of Divorce, Husband did not raise any objections as to custody of the

children. Further, we do not have the transcripts of the May 25, 2022 hearing or

subsequent show cause hearings to demonstrate Husband raised the issue of the

custody of the children to the trial court. Husband is asserting new evidence for the first

time on appeal, which is evidence outside the trial court record and therefore cannot be

considered herein. Cleveland v. Alexander, 8th Dist. Cuyahoga No. 101068, 2014-Ohio-

5282, ¶ 21 citing State v. Hartman, 93 Ohio St.3d 274, 299, 2001–Ohio–1580, 754 N.E.2d

1150; State v. Carter, 89 Ohio St.3d 593, 606, 2000–Ohio–172, 734 N.E.2d 345. Pursuant

to Knapp, we must presume regularity of the trial court proceedings in approving and

adopting the settlement agreement where the parties agreed, and the trial court
Muskingum County, Case No. CT2022-0080 14

independently confirmed, that it was in the best interest of the children that they be placed

with Wife.

{¶42} Husband’s fifth Assignment of Error is overruled.

VI.

{¶43} In Father’s sixth Assignment of Error, he objects to the trial court’s

Judgment Entry Divorce Decree requiring Wife and Husband utilize the Our Family

Wizard for communication until the youngest child is eighteen years old.

{¶44} Wife’s proposed Consent Judgment Entry Decree of Divorce contained the

terms requiring the parties to use the Our Family Wizard for communication. In Husband’s

objection and supplemental objection to Wife’s proposed Consent Judgment Entry

Decree of Divorce, Husband did not raise the issue of the Our Family Wizard. Without the

benefit of the May 25, 2022 hearing where the parties expressed that the settlement

agreement was in the best interests of the children, we must presume regularity of the

trial court to find the Our Family Wizard was in the best interest of the children. Knapp,

supra.

{¶45} Husband’s sixth Assignment of Error is overruled.
Muskingum County, Case No. CT2022-0080 15

CONCLUSION

{¶46} The judgment of the Muskingum County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Delaney, J.,

Gwin, P.J. and

King, J., concur.