Tackett v. Gunnels

[Cite as Tackett v. Gunnels, 2023-Ohio-3611.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

MICHELLE TACKETT, :

Plaintiff-Appellee, : Case
No. 22CA9

v. :

RYAN GUNNELS, : DECISION AND
JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

James R. Kingsley, Circleville, Ohio, for appellant.

Michelle Tackett, Chillicothe, Ohio, pro se appellee.
________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:9-28-23
ABELE, J.

{¶1} This is an appeal from a Ross County Common Pleas

Court judgment that adopted a second-amended-shared-parenting

plan between Michelle Tackett, plaintiff below and appellee

herein, and Ryan Gunnels, defendant below and appellant herein.

Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT FAILED TO HOLD A HEARING ON THE
TERMS OF THE AGREEMENT AND INSTEAD DID IT BY
SUBMISSION.”
 SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT JOURNALIZED THE PURPORTED IN-COURT
SETTLEMENT.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT FAILED TO FIND NO MEETING OF THE
MINDS AND REMANDING THE CASE FOR HEARING ON
ALL PENDING MOTIONS.”

{¶2} The present appeal stems from a long and contentious

shared-parenting battle between the divorced parents of two

children. The parties’ first shared-parenting plan was entered

as part of their 2014 Florida divorce proceedings. Later, the

parties relocated to Ohio, and, in August 2017, the Pike County

Common Pleas Court entered an amended-shared-parenting plan.

{¶3} Subsequently, numerous disputes ensued and the parties

filed multiple motions seeking to enforce, or to challenge, the

amended-shared-parenting plan. On June 12, 2020, the trial

court scheduled all pending motions for a hearing to be held in

August 2020. In the meantime, appellant filed another contempt

motion. Also, appellee filed a notice that she intended to

relocate to Chillicothe. Thereafter, the parties agreed to

transfer the case to Ross County and the parties again filing a
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ROSS, 22CA9

parade of motions over the shared parenting of their two

children.

{¶4} On August 18, 2021, the magistrate held a final

hearing to resolve “all pending motions.” At the start of the

hearing, appellant’s counsel explained that the parties had

spent more than six hours negotiating and had finally reached an

agreement on all pending matters. Counsel then recited the

terms of the agreement.

{¶5} Counsel first indicated that rather than a review of

multiple shared-parenting plans, he planned “to merge everything

into one document,” to be called the second-amended-shared-

parenting plan. Counsel explained that to create this second-

amended-shared-parenting plan, he would “take the original

shared parenting plan from Judge Deering,” (i.e., the Pike

County amended-shared-parenting plan) and “copy it as close as”

possible. He recognized, however, that some provisions “are now

obsolete,” so he would delete any obsolete provisions, like one

provision that referenced a child turning “eight years of age,”

which had already occurred.

{¶6} Counsel further indicated that the parties’ “major

agreement” relates to “parenting time and scheduling.” He

reported that the parties agreed “that the original agreement of

the part[ies] is fifty-fifty as closely as possible every month
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except they are now going to trigger, uh, every other weekend,

uh, from Friday at six to Sunday at six.” Counsel explained

that appellant’s work schedule may make him late to pick up the

children, so the parties agreed he would have until Friday at

8:00 p.m. to pick up the children. If he is unable to pick up

the children by 8:00 p.m., then “he forfeits that evening” and

his time begins Saturday morning at 9:00. The parties also

agreed to “a new clause” for appellant’s “compensatory

visitation” if he has conflicts during his parenting-time

weekends. Counsel explained that the parties agreed that

appellant would “be entitled to compensatory visitation” for the

time lost and appellant would be able to exercise that

compensatory visitation “during the week within the next ninety

days.”

{¶7} Counsel also stated that the parties agreed “to look

at and incorporate part of the Chillicothe companionship

schedule” with a couple of modifications. First, for Christmas,

the parties agreed to divide Christmas break into two phases.

The first phase would begin the first day that school releases

for the holiday and extend until 12:00 p.m. on December 25. The

second phase would begin at 12:00 p.m. on December 25 and extend

until the day before school resumes. The parties agreed to

alternate these two time periods each year.
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{¶8} For Thanksgiving, the parties agreed that parenting

time would begin the day school releases for the holiday and

continue through the day that school resumes. They also agreed

to alternate the holiday each year. Counsel indicated that the

“old schedule[]” is “going to remain in effect for the other

holidays” and for the children’s birthdays.

{¶9} Appellee’s counsel then offered some clarifications.

With regard to appellant’s “compensatory time,” the parties

agreed that appellant would not exercise “it during [appellee’s]

weekend time.” She further related that the parties agreed that

the holidays would be “the standard schedule” except for

Thanksgiving and Christmas. Counsel stated that the parties

agreed to use “the old rule for the child[ren]’s birthday and

the old rule for Mother’s Day and Father’s Day[.] Aside from

that,” the parties agreed to use “the standard schedule, which

is going to just rotate.” Appellant’s counsel stated that he

“concur[red].”

{¶10} After the parties’ attorneys finished reciting the

agreement on the record, appellee’s counsel asked appellee if

she understood (1) the changes the parties agreed to make and

(2) the provisions the parties did not agree to amend would

remain the same. Appellee responded affirmatively. She further
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confirmed that the changes that the parties agreed to make are

in the children’s best interests.

{¶11} Appellant’s counsel asked appellant if he (1)

understood “each and every one of the, uh, settlements that we,

uh, terms that we have entered into,” (2) thought the terms “are

fair, just and reasonable,” and (3) wanted the court to adopt

the parties’ agreement. Appellant confirmed his understanding.

{¶12} At that juncture, the magistrate stated that “the

court will approve and adopt, uh, the agreement that you reached

here today and the – the terms of which were recited into our

record, uh, so your agreement will now become a court order.”

At the conclusion of the hearing, appellant’s counsel asked

whether they could do “an agreed judgment entry,” but the

magistrate stated they needed “a separate magistrate’s

decision.” Appellant’s counsel said he would “prepare the

necessary documents,” i.e., “the magistrate’s decision, judgment

entry and the * * * second amended shared parenting plan.”

{¶13} Not surprisingly, events did not unfold quite as

predicted. Instead, on September 7, 2021 appellee filed a

“second amended shared parenting plan.” In an attached filing,

appellee’s counsel stated that she sent the plan to appellant’s

counsel on August 20, 2021, but counsel refused to respond and

instead submitted his own plan.
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{¶14} On November 19, 2021, appellant filed a motion to

enforce the August 18, 2021 in-court settlement that counsel

read into the record. Appellant’s counsel asserted that he sent

a “Third Amended Shared Parenting Plan” to appellee’s counsel on

August 31, 2021, and, rather than a response, she filed her own

plan.

{¶15} On November 19, 2021, the trial court held a

telephonic status conference with the parties. The court noted

that the parties previously had read into the record an agreed

settlement, but “for some reason cannot now reach consensus on

what the Amended Shared Parenting Plan should say, or even who

should prepare it.” The court recognized that appellant filed a

motion to enforce this settlement agreement and thus ordered the

parties to submit “a copy of their written memorandum of the

settlement agreement within 7 days” and “a proposed amended

shared parenting plan.” The court stated it then would review

“the parties’ statement on the record of their agreement” and

“issue a decision as to the terms of the settlement.”

{¶16} On December 13, 2021, the trial court granted

appellant’s motion to enforce the settlement agreement. The

court first noted that the parties filed a written “Memorandum

Entry.” The trial court, however, found that it contains

“nothing more than the notes of counsel.” The court thus found
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ROSS, 22CA9

“that the agreement read into the record is the entirety of the

parties’ agreement.”

{¶17} The court found that the parties agreed to name the

new shared parenting plan the “Second Amended Shared Parenting

Plan” and this plan would “copy and retain the terms of the

[Pike County] Amended Shared Parenting Plan,” except as

otherwise stated during counsels’ in-court recitation of the

parties’ settlement agreement. The court noted that

subsequently both parties submitted shared-parenting plans, but

found that neither one comported with their in-court settlement

agreement. Nonetheless, the court found that appellee’s plan

“most closely adheres to the agreed terms,” and thus ordered

appellee’s counsel to prepare a new draft of the second-amended-

shared-parenting plan with the following revisions:

1. * * * *
2. Save and excepting the specifically amended
terms agreed upon by the parties, the language and terms
of the plan shall be the same as (i.e. [sic] identical
to) that contained in the prior Amended Plan for Shared
Parenting.
3. The language submitted by Plaintiff for the new
Time Sharing Schedule, which Plaintiff has submitted as
Section VI.A., shall be amended as follows:
a. It shall indicate that Father will send his
Awarded Flight Schedule to Mother ‘no later than the
22nd of each month...’
b. It shall indicate that any compensatory time
taken by Father ‘will be taken during the weekdays only,
and within 90 days from the date of Father’s missed
weekend parenting time.’ * * * *
 9
ROSS, 22CA9

4. The Holiday Schedule, which Plaintiff has
submitted as Section IV.B., shall be amended as follows:
a. The Christmas schedule shall be amended to note
that the first half shall last ‘until 12:00 p.m. on
Christmas Day’ and the second half ‘commences 12:00 p.m.
Christmas Day, December 25th until the day before school
resumes at 6pm [sic].’
b. The provisions regarding Children’s Birthdays
* * * and Father’s Day/Mother’s Day * * * were retained
by agreement and must be included.
c. The provision regarding parents’ birthdays was
not retained and must be removed.
d. The provision regarding alternating ‘spring
break...and any other recognized national holiday’ shall
be removed. The language regarding division of
Halloween and trick-or-treat shall be retained.

{¶18} The trial court noted that the “Court’s Standard

Companionship Schedule” would govern the parents’ birthdays,

spring break, and other holidays not specifically included in

the parties’ in-court settlement agreement. The court ordered

appellee’s counsel to prepare a magistrate’s decision and agreed

judgment entry incorporating the agreed-upon second-amended-

shared-parenting plan. The court also instructed the parties

and their counsel to sign the second-amended-shared-parenting

plan, the magistrate’s decision, and the agreed judgment entry

before submitting the documents to the court.

{¶19} Once again, however, events did not unfold as the

trial court directed. Instead, on February 11, 2022 appellee’s

counsel filed a notice of filing for the second-amended-shared-

parenting plan. She asserted that she sent the draft to
 10
ROSS, 22CA9

appellant’s counsel, but counsel did not respond. Appellee’s

counsel indicated that she happened to see appellant’s counsel

and when asked about the parenting plan, appellant’s counsel

said he did not agree with the document and intended to object.

Appellee’s counsel asked counsel to respond with a list of his

objections, but he apparently did not, nor did he file a

response to appellee’s February 11, 2022 filing.

{¶20} On March 1, 2022, the magistrate recommended that the

court adopt the second-amended-shared-parenting plan. On that

same date, the trial court adopted the magistrate’s decision and

the second-amended-shared-parenting plan. This appeal followed.

I

{¶21} In his first assignment of error, appellant asserts

that the trial court erred by failing to hold a hearing

regarding his motion to enforce the in-court settlement

agreement. Appellant asserts that the court should have held a

hearing to resolve the parties’ disagreements as documented in

their competing amended-shared-parenting plans, rather than

resolving the matter upon the parties’ written submissions. He

contends that if the trial court had concluded an evidentiary

hearing, the court would have adopted an amended-shared-

parenting agreement that allocated the federal-tax-dependency

exemption for both children to appellant.
 11
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{¶22} If “parties dispute the meaning or existence of a

settlement agreement, a court may not force an agreement upon

the parties.” Rulli v. Fan Co., 79 Ohio St.3d 374, 377, 683

N.E.2d 337 (1997). Forcing an agreement upon the parties “would

be to deny the parties’ right to control the litigation, and to

implicitly adopt * * * the interpretation of one party, rather

than enter judgment based upon a mutual agreement.” Id.

Consequently, when “the meaning of terms of a settlement

agreement is disputed, or where there is a dispute that contests

the existence of a settlement agreement, a trial court must

conduct an evidentiary hearing prior to entering judgment.” Id.

at syllabus. However, “[i]n the absence of such a factual

dispute, a court is not required to conduct such an evidentiary

hearing.” Id. at 377. We hasten to add, however, that a party

may waive the right to an evidentiary hearing if the party fails

to request a hearing. In re K.K., 4th Dist. Highland No. 21CA1,

2021-Ohio-3338, ¶ 40-41; Aceste v. Stryker Corp., 6th Dist.

Lucas No. L-19-1166, 2020-Ohio-4938, ¶ 48, citing Wilson v.

Wilson, 2018-Ohio-3820, 111 N.E.3d 110, ¶ 21 (6th Dist.) (“If a

trial court does not hold the required hearing, an appellant

nonetheless waives this error for purposes of appellate review

where ‘[t]he record shows no indication that appellant requested

an evidentiary hearing or objected to the nature of the
 12
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proceedings.’”); Brahm v. DHSC, LLC, 2019-Ohio-766, 132 N.E.3d

266, ¶ 58 (5th Dist.). Moreover, under the invited-error

doctrine, litigants may not “take advantage of an error which

[they themselves] invited or induced.” State v. Garrett, ___

Ohio St.3d ___, 2022-Ohio-4218, ___ N.E.3d ___, ¶ 20, quoting

Hal Artz Lincoln–Mercury, Inc. v. Ford Motor Co., Lincoln–

Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph

one of the syllabus. For example, a party invites error “‘when

a party has asked the court to take some action later claimed to

be erroneous, or affirmatively consented to a procedure the

trial judge proposed.’” Id., quoting State v. Campbell, 90 Ohio

St.3d 320, 324, 738 N.E.2d 1178 (2000).

{¶23} In the case sub judice, it appears that appellant did

not affirmatively request the trial court to conduct an

evidentiary hearing regarding the terms of the parties’

agreement. Instead, the motion to enforce the in-court

settlement agreement states that “memorandums of counsel [should

be] submitted as to the accuracy of their submissions.”

Moreover, when the court ordered the parties to submit their

copies of the written memorandums and proposed amended-shared-

parenting plans, it stated it would review the documents and

then “issue a decision as to the terms of the settlement.”

Appellant did not object to this procedure, but rather requested
 13
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and complied with it. Under these circumstances, we believe

that appellant waived the right to argue on appeal that the

trial court should have held an evidentiary hearing.

{¶24} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

{¶25} In his second assignment of error, appellant asserts

that the trial court erred by adopting the second-amended-

shared-parenting plan because the plan does not reflect the

terms of the parties’ in-court settlement.

A

{¶26} Before we consider appellant’s assignments of error,

we first observe that appellant did not object to the

magistrate’s decision that recommended the court adopt the

second-amended-shared-parenting plan. Civ.R. 53(D)(3)(b)(iv)

provides that

a party shall not assign as error on appeal the court’s
adoption of any factual finding or legal conclusion,
whether or not specifically designated as a finding of
fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party has objected to that finding or
conclusion as required by Civ.R. 53(D)(3)(b).

“In essence, the rule is based on the principle that a trial

court should have a chance to correct or avoid a mistake before
 14
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its decision is subject to scrutiny by a reviewing court.”

Cunningham v. Cunningham, 4th Dist. Scioto No. 01CA2810, 2002-

Ohio-4094, ¶ 8. If a party fails to comply with Civ.R.

53(D)(3)(b)(iv), appellate review is limited to plain error.

Civ.R. 53(D)(3)(b)(iv); Barnett v. Barnett, 4th Dist. Highland

No. 04CA13, 2008-Ohio-3415, ¶ 17; see also State ex rel. Target

Auto Repair v. Morales, 168 Ohio St.3d 88, 2022-Ohio-2062, 195

N.E.3d 1027, ¶ 15; State ex rel. Booher v. Honda of Am. Mfg., 88

Ohio St.3d 52, 53–54, 723 N.E.2d 571 (2000).

{¶27} In the case sub judice, appellant did not object to

the magistrate’s decision. However, the magistrate’s decision

did not advise appellant that a party cannot assign as error the

court’s adoption of any factual finding or legal conclusion

unless the party timely and specifically objected to that

finding or conclusion. See Civ.R. 53(D)(3)(a)(iii). The rule

requires a magistrate’s decision to include conspicuous language

to inform parties of this process.1 Picciano v. Lowers, 4th

1
Civ.R. 53(D)(3)(a)(iii) states:

Form; Filing, and Service of Magistrate’s
Decision. A magistrate’s decision shall be in
writing, identified as a magistrate’s decision in
the caption, signed by the magistrate, filed with
the clerk, and served by the clerk on all parties
or their attorneys no later than three days after
the decision is filed. A magistrate’s decision
shall indicate conspicuously that a party shall not
 15
ROSS, 22CA9

Dist. Washington No. 08CA38, 2009-Ohio-3780, ¶ 17; Rockey v.

Rockey, 4th Dist. Highland No. 08CA4, 2008-Ohio-6525, ¶ 9. If a

magistrate’s decision does not comply with Civ.R.

53(D)(3)(a)(iii), then a party may assign as error the trial

court’s adoption of the magistrate’s findings of fact and

conclusions of law. Rockey at ¶ 12; see also D.A.N. Joint

Venture III, L.P. v. Armstrong, 11th Dist. Lake No.2006-L-89,

2007-Ohio-898, ¶ 22. Consequently, appellant’s failure to

object to the magistrate’s decision in the case at bar does not

preclude him from challenging the trial court’s decision

adopting the magistrate’s decision and the second-amended-

shared-parenting plan.2

{¶28} We question, however, whether appellant’s failure to

respond to or to object to appellee’s February 11, 2022 filing

assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or
not specifically designated as a finding of fact or
conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to
that factual finding or legal conclusion as
required by Civ.R. 53(D)(3)(b).

2
We note that during the August 18, 2021 hearing, the
parties discussed the 14-day rule for objecting to a
magistrate’s decision. The transcript suggests that they may
have intended to “waive the fourteen-day objection period” and
to document this waiver in the magistrate’s decision. However,
the magistrate’s decision does not, in fact, contain this
waiver.
 16
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that contained notice of the second-amended-shared-parenting

plan and the difficulty encountered when seeking appellant’s

counsel’s approval forfeited any error with the court’s

subsequent adoption of that plan. Appellant could have

responded to appellee’s filing by setting forth objections he

now raises on appeal so that the trial court first could have

considered these issues and corrected any arguable errors. But

he did not. Thus, a few weeks later the court adopted the

second-amended-shared-parenting plan that appellee submitted.

In light of these circumstances, we believe that appellant

forfeited the right to challenge on appeal the trial court’s

decision to adopt the second-amended-shared-parenting plan. We

thus limit our review of the court’s decision to adopt the

second-amended-shared-parenting plan for plain error.

{¶29} In order for the plain-error doctrine to apply, a

party who claims error must establish that (1) “‘an error, i.e.,

a deviation from a legal rule’” occurred, (2) the error was “‘an

“obvious” defect in the trial proceedings,’” and (3) this

obvious error affected substantial rights, i.e., the error

“‘must have affected the outcome of the trial.’” State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22,

quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240

(2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209, 436
 17
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N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious and

prejudicial although neither objected to nor affirmatively

waived which, if permitted, would have a material adverse affect

on the character and public confidence in judicial

proceedings.”). For an error to be “plain” or “obvious,” the

error must be plain “under current law” “at the time of

appellate consideration.” Johnson v. United States, 520 U.S.

461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord

Barnes, 94 Ohio St.3d at 27; State v. G.C., 10th Dist. Franklin

No. 15AP-536, 2016-Ohio-717, ¶ 14. However, the plain-error

doctrine is not readily invoked in civil cases. Instead, an

appellate court “must proceed with the utmost caution” when

applying the plain-error doctrine in civil cases. Goldfuss v.

Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). The

Ohio Supreme Court has set a “very high standard” for invoking

the plain-error doctrine in a civil case. Perez v. Falls

Financial, Inc., 87 Ohio St.3d 371, 721 N.E.2d 47 (2000). Thus,

“the doctrine is sharply limited to the extremely rare case

involving exceptional circumstances where error, to which no

objection was made at the trial court, seriously affects the

basic fairness, integrity, or public reputation of the judicial

process, thereby challenging the legitimacy of the underlying

judicial process itself.” Goldfuss, 79 Ohio St.3d at 122;
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accord Jones v. Cleveland Clinic Found., 161 Ohio St.3d 337,

2020-Ohio-3780, 163 N.E.3d 501, ¶ 24; Gable v. Gates Mills, 103

Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 43.

Moreover, appellate courts “‘should be hesitant to decide

[forfeited errors] for the reason that justice is far better

served when it has the benefit of briefing, arguing, and lower

court consideration before making a final determination.’”

Risner at ¶ 28, quoting Sizemore v. Smith, 6 Ohio St.3d 330,

332, 453 N.E.2d 632 (1983), fn. 2; accord Mark v. Mellott Mfg.

Co., Inc., 106 Ohio App.3d 571, 589, 666 N.E.2d 631 (4th

Dist.1995) (“Litigants must not be permitted to hold their

arguments in reserve for appeal, thus evading the trial court

process.”). Additionally, “[t]he plain error doctrine should

never be applied to reverse a civil judgment * * * to allow

litigation of issues which could easily have been raised and

determined” in the trial court. Goldfuss, 79 Ohio St.3d at 122.

B

{¶30} Settlement agreements are highly favored as a means of

resolving disputes. Barstow v. O.U. Real Estate, III, Inc., 4th

Dist. Athens No. 01CA49, 2002-Ohio-4989, ¶ 37; State ex rel.

Wright v. Weyandt, 50 Ohio St.2d 194, 197, 4 O.O.3d 383, 363

N.E.2d 1387 (1977). The essential elements of a settlement

agreement, like any contract, “‘include an offer, acceptance,
 19
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contractual capacity, consideration (the bargained for legal

benefit and/or detriment), a manifestation of mutual assent and

legality of object and of consideration.’” Kostelnik v. Helper,

96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting

Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414

(N.D. Ohio 1976). “‘To constitute a valid settlement agreement,

the terms of the agreement must be reasonably certain and

clear.’” Id. at ¶ 17, quoting Rulli, 79 Ohio St.3d at 376. A

trial court possesses full authority to enforce a valid

settlement agreement. Kostelnik at ¶ 16; Episcopal Retirement

Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio

St.3d 366, 369, 575 N.E.2d 134; Mack v. Polson Rubber Co., 14

Ohio St.3d 34, 36, 470 N.E.2d 902 (1984).

{¶31} Although settlement agreements may be either written

or oral, written agreements are “preferable.” Kostelnik at ¶

15; Huffman v. Huffman, 4th Dist. Washington No. 21CA13, 2022-

Ohio-2020, ¶ 11; Mathews v. E. Pike Loc. Sch. Dist. Bd. of Edn.,

4th Dist. Pike No. 12CA831, 2013-Ohio-4437, ¶ 22, citing

Pawlowski v. Pawlowski, 83 Ohio App.3d 794, 798-799, 615 N.E.2d

1071 (10th Dist. 1992). Oral settlement agreements nevertheless

are enforceable if the record demonstrates “sufficient

particularity to form a binding contract.” Kostelnik at ¶ 15,

citing Spercel v. Sterling Industries, Inc., 31 Ohio St.2d 36,
 20
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39, 285 N.E.2d 324 (1972). “Terms of an oral contract may be

determined from ‘words, deeds, acts, and silence of the

parties.’” Id., quoting Rutledge v. Hoffman, 81 Ohio App. 85,

75 N.E.2d 608, paragraph one of the syllabus (1947).

{¶32} Parties also may enter into an in-court settlement

agreement. “An in-court agreement is one that occurs ‘during

the course of a hearing’ and in the ‘presence of the court.’”

Richmond v. Evans, 8th Dist. Cuyahoga No. 101269, 2015-Ohio-870,

¶ 13, citing Kolar v. Shapiro, 11th Dist. Lake No. 2007-L-148,

2008-Ohio-2504, quoting Booth v. Booth, 11th Dist. Lake No.2002-

P-0099, 2004-Ohio-524. When parties voluntarily enter into an

oral settlement agreement in the presence of the court, the

agreement constitutes an enforceable and binding contract.

Spercel at paragraphs one and two of the syllabus; Aristech

Chem. Corp. v. Carboline Co., 86 Ohio App.3d 251, 254-255, 620

N.E.2d 258 (4th Dist.1993), citing Bolen v. Young, 8 Ohio App.3d

36, 37, 455 N.E.2d 1316 (10th Dist. 1982). Reading the terms of

an in-court settlement agreement into the record allows a trial

court to “‘approve a journal entry which accurately reflects the

terms of the agreement, adopting the agreement as [the court’s]

judgment.’” Richmond at ¶ 33, quoting Bolen, 8 Ohio App.3d at

37, citing Holland v. Holland, 25 Ohio App.2d 98, 266 N.E.2d 580

(10th Dist.1970); see also Gulling v. Gulling, 70 Ohio App.3d
 21
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410, 412, 591 N.E.2d 349 (9th Dist.1990) (“[a]n in-court

settlement agreement may be adopted by the court, incorporated

into judgment entry, and enforced even in the absence of written

approval by one party.”).

{¶33} Because a valid settlement agreement constitutes a

binding contract, a party cannot unilaterally repudiate the

agreement. Spercel, 31 Ohio St.2d at 39-40; Cochenour v.

Cochenour, 4th Dist. Ross No. 13CA3420, 2014-Ohio-3128, ¶ 28.

“To permit a party to unilaterally repudiate a settlement

agreement would render the entire settlement proceedings a

nullity, even though * * * the agreement is of binding force.”

Spercel, 31 Ohio St.2d at 40. Consequently, settlement

agreements “‘can only be set aside for the same reasons that any

other contract could be rescinded, such as fraud, duress, or

undue influence.’” Barstow v. O.U. Real Estate, III, Inc., 4th

Dist. Athens No. 01CA49, ¶ 38. Thus, “[i]n order to effect a

rescission of a binding settlement agreement entered into in the

presence of the court, a party must file a motion to set the

agreement aside.” Spercel at paragraph two of the syllabus.

Otherwise, “a trial court may properly sign a journal entry

reflecting the settlement agreement.” Id.

{¶34} Furthermore, “[i]f the record clearly reflects that

the parties intended to include a term in their settlement
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agreement, the trial court does not have the discretion to adopt

a judgment entry that unilaterally excludes or adds terms in a

manner that would result in a settlement agreement that is

inconsistent with the parties’ agreement.” Santomauro v. Sumss

Property Mgt., LLC, 2019-Ohio-4335, 134 N.E.3d 1250, ¶ 55 (9th

Dist.), citing Cuyahoga Falls v. Wells, 9th Dist. Summit No.

19959, 2001 WL 81260, *3 (Jan. 31, 2001). “It is reversible

error for a trial court to adopt a judgment entry that fails to

accurately reflect the entire settlement agreement.” Id. at ¶

45, citing Schmid v. Rutter, 9th Dist. Wayne No. 2505, 1989 WL

157218, *2 (Dec. 27, 1989).

{¶35} In the case at bar, appellant asserts that four parts

of the second-amended-shared-parenting plan exclude or add terms

that are inconsistent with the parties’ in-court settlement

agreement.

1

{¶36} First, appellant claims that the trial court erred

when it found that the parties had not agreed to incorporate

into the new shared-parenting plan (1) the original Florida

shared-parenting plan, and (2) the Pike County amended-shared-

parenting plan. He asserts that counsel “specifically stated on

the record” that “the previous agreements were going to be

merged into the latest” shared-parenting plan.
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{¶37} To support this argument, appellant cites to pages 4

and 18 of the hearing transcript but does not identify which

statements purportedly contain this alleged agreement.

Nonetheless, we have found nothing on those two pages that

states the parties agreed to incorporate both the Florida and

the Pike County plans into the new shared-parenting plan. On

page four, appellant’s counsel stated he would “take the

original shared parenting plan from Judge Deering here [i.e.,

the Pike County plan] and I’m going to copy it as close as I

can.” On page 18, appellant’s counsel asked appellant if he

understood that “we have to put three things together” and then

listed those three things as “the old shared parenting plan,”

“some of the new, uh, compensatory visitation or the * * * local

schedule and the * * * amendments.” Counsel continued to

explain that “we [will] put all those together and that’s going

to be a whole new scorecard from here on in.” None of these

statements suggest that “the old shared parenting plan” meant

the Florida plan. Moreover, throughout the hearing the parties

referred to the Pike County amended-shared-parenting plan as the

“the old shared parenting plan.”

{¶38} Thus, we do not believe that the record supports

appellant’s argument that the parties agreed to merge both the

Florida shared-parenting plan and the Pike County amended-
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shared-parenting plan into the second-amended-shared-parenting

plan. Instead, counsel stated that he would use the Pike County

amended-shared-parenting plan to help draft the new plan, not

that he would use the Pike County and the Florida plan to draft

the new plan. Moreover, appellant does not point to anything in

the record to suggest that appellee intended to incorporate the

Florida plan into the new plan. We, therefore, find nothing in

the record to support appellant’s claim that the parties agreed

to merge the two prior shared-parenting plans into the second-

amended-shared-parenting plan. Thus, the trial court did not

err by excluding the Florida shared-parenting plan’s provisions

when it adopted the second-amended-shared-parenting plan.

2

{¶39} Next, appellant asserts that the trial court erred by

adopting the plan because it “contained provisions outside of

those contained in previous shared parenting plans and which

were not agreed to.” In particular, appellant contends that he

did not agree to (a) include a provision that he would give

appellee 24 hours’ notice if he is unable to pick up the

children at his designated time, (b) delete a provision that

allowed him to have the children on his birthday, and (c) omit a

provision to allow tracking devices on the children’s cell

phones. Appellant points out that he is a pilot, and sometimes
 25
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his flight is delayed, so he would not always be able to provide

appellee 24 hours’ notice. He further asserts that the previous

plans stated that he would have the children every year on his

birthday, but under the new plan the court stated that the

parties would follow the local rule. Appellant also supposedly

requested that tracking devices be placed on the children’s cell

phones.

a

{¶40} With respect to the 24-hour-notice provision, the

agreement states that “[i]f [appellant] is unable to pick up the

children [on] time, he must notify [appellee] at least twenty-

four (24) hours prior.” The in-court agreement indicates that

appellant consented to notify appellee if he would be late, but

it is silent regarding the amount of notice that he agreed to

provide. Therefore, we agree with appellant that the parties did

not agree that appellant would provide appellee with 24 hours’

notice if he would be late picking up the children.

{¶41} However, we do not believe that the trial court

plainly erred by including this provision in the second-amended-

shared-parenting plan. Instead, the plan also includes a

provision that states, “[t]he parents shall attempt to

cooperatively resolve any disputes which may arise over the

terms of the parenting plan.” If they are unable to agree, the
 26
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plan states that they shall attempt “mediation or other

resolution methods * * * prior to filing a court action.” In

view of this outlet to resolve disputes, we do not believe that

the trial court obviously erred by including the 24-hour-notice

provision in the second-amended-shared-parenting plan.

b

{¶42} Regarding the parents’ birthdays, the record of the

parties’ in-court agreement does not indicate that they

discussed parenting time on the parents’ birthdays. They did,

however, agree to follow the local companionship schedule except

for the Thanksgiving and Christmas holidays. The record thus

does not contain a specific agreement regarding the parents’

birthdays.

{¶43} Arguably, however, because the parties agreed to

retain the provisions from the Pike County amended-shared-

parenting plan that they did not specifically discuss during the

in-court settlement agreement, they agreed to retain the

provision regarding the parents’ birthdays. Nonetheless, we

again note that the parties have an outlet to resolve these

types of issues. Thus, we do not believe that the trial court

obviously erred by excluding the provision that granted the

parties parenting time on their birthdays.

c
 27
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{¶44} With respect to tracking devices on the children’s

cell phones, the parties did not read anything into the record

regarding tracking devices. Therefore, although many positive

benefits arise from tracking devices for mobile phones of minor

children, we do not agree with appellant that the trial court

erred by excluding this type of provision from the second-

amended-shared-parenting plan.

3

{¶45} Next, appellant contends that the trial court erred by

deleting the spring-break provision and by making it subject to

the local rules, which states that “spring break commences 6:00

p.m. the Friday school is out to 7:00 p.m. the day before school

commences.” Appellant asserts that the children’s spring break

begins on a Thursday and therefore, spring-break-parenting time

should begin on Wednesday.

{¶46} Our review reveals that the parties did not recite

into the record any specific agreements regarding spring break.

Instead, they stated they would follow the local companionship

schedule, except as otherwise noted. Thus, the record does not

contain any evidence that the parties agreed upon a specific

spring-break schedule. Consequently, the trial court did not

err in this regard.

4
 28
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{¶47} Appellant further argues that the trial court erred by

adopting a provision that did not give appellant “the final

decision” to schedule his “weekday compensatory parenting time

for missed weekends.” He states that he did not agree to the

provision that requires him to “discuss these makeup dates with

[appellee] as the dates must be mutually agreed on.”

{¶48} Our review of the record does not support appellant’s

argument that the parties agreed that appellant would have “the

final say when” he could exercise his compensatory time.

Instead, the only caveat that the parties recited into the

record is that appellant could not exercise his compensatory

time during a weekend when appellee had parenting time with the

children. Thus, we do not agree with appellant that the trial

court erred by adopting a plan that did not give him “the final

say.” However, we recognize that appellant’s work schedule can

be demanding, inflexible and subject to last-minute changes.

Thus, the parties should endeavor to establish some method to

accommodate each of their schedules when the situation demands

it or, as the plan provides, “attempt mediation or other

resolution methods” prior to any additional court action.

5

{¶49} In conclusion, we determined the trial court erred by

adding the 24-hour-notice provision and, arguably, by excluding
 29
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a provision to grant each parent parenting time on their

birthdays. However, any error that the trial court may have

made does not constitute plain error that we must correct in

order to avoid a miscarriage of justice. The record fails to

support appellant’s remaining assertions that the plan that the

court adopted does not reflect the parties’ in-court agreement.

{¶50} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶51} In his third assignment of error, appellant asserts

that the trial court erred by adopting the second-amended-

shared-parenting plan as a reflection of the parties’ in-court

settlement agreement. He argues that, because each party

submitted plans that differed from the terms of their in-court

agreement, they did not have a meeting of the minds sufficient

to form a valid agreement. Appellant reiterates his

disagreements with the second-amended-shared-parenting plan that

the court adopted: (1) he did not consent to “mutually” agree

upon his compensatory time; (2) he is unable to give appellee 24

hours’ notice if he will be late picking up the children; (3) he

did not agree to delete the spring-break provision; (4) he

should receive the federal-dependency-tax exemption for both

children; and (5) the plan should have allowed tracking devices
 30
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to be placed on the children’s phones. Appellant thus argues

that we should reverse and remand the trial court’s judgment

with instructions to hold a hearing on the merits.

{¶52} “The existence of a contract is a question of law.”

Union Stock Yards v. Hillsboro, 191 Ohio App.3d 564, 2010-Ohio-

5975, 947 N.E.2d 183, ¶ 10 (4th Dist.). “[T]o declare the

existence of a contract, both parties to the contract must

consent to its terms; there must be a meeting of the minds of

both parties; and the contract must be definite and certain.”

(Citations omitted.) Episcopal Retirement Homes, Inc. v. Ohio

Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d

134 (1991). A contract does not exist unless the parties have a

meeting of the minds as to the essential terms of the contract.

Id.; see also Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-

2985, 770 N.E.2d 58, ¶ 16.

{¶53} We initially note that appellant did not argue during

the trial court proceedings that the parties had not reached a

meeting of the minds. Instead, he asked the court to enforce

the parties’ in-court settlement agreement, which the court did.

When appellee presented the second-amended-shared-parenting plan

to the court for approval, appellant did not object. Thus, like

the arguments raised in his second assignment of error,

appellant has forfeited all but plain error regarding a meeting
 31
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of the minds. Moreover, we do not believe that the trial court

plainly erred by failing to determine, sua sponte, that the

parties did not have a meeting of the minds. First, appellant’s

“argument that there was no meeting of the minds is inconsistent

with his position,” on the day of the hearing, “that a

settlement had been reached.” In re K.Y., 8th Dist. Cuyahoga

No. 109111, 2020-Ohio-4140, ¶ 11. Furthermore, appellant cannot

unilaterally repudiate the terms to which the parties agreed or

seek to add new terms that were not part of the in-court

settlement agreement. Spercel v. Sterling Industries, Inc., 31

Ohio St.2d 36, 40, 285 N.E.2d 324 (1972) (“[t]o permit a party

to unilaterally repudiate a settlement agreement would render

the entire settlement proceedings a nullity, even though * * *

the agreement is of binding force”). For these reasons, we do

not believe that the trial court obviously erred by failing to

determine, sua sponte, that the parties’ competing amended-

shared-parenting plans demonstrated that they had not reached a

meeting of the minds.

{¶54} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
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JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that
appellee recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this
appeal.
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It is ordered that a special mandate issue out of this
Court directing the Ross County Common Pleas Court to carry this
judgment into execution.

A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________
Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.