[Cite as Bennett v. Bennett,
2019-Ohio-4363.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
JULIA BENNETT :
:
Plaintiff-Appellant : Appellate Case No. 28380
:
v. : Trial Court Case No. 2017-DR-456
:
BRIAN BENNETT : (Appeal from Common Pleas Court -
: Domestic Relations Division)
Defendant-Appellee :
:
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OPINION
Rendered on the 25th day of October, 2019.
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MARY ANN THINNES, Atty. Reg. No. 0012653, 241 West Riverview Avenue, Dayton,
Ohio 45405
Attorney for Plaintiff-Appellant
ERIC M. BROWN, Atty. Reg. No. 0082160, 250 Civic Center Drive, Suite 220, Columbus,
Ohio 43215
Attorney for Defendant-Appellee
.............
HALL, J.
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{¶ 1} Julia Bennett appeals from the trial court’s April 3, 2019 judgment entry and
decree of divorce that, inter alia, terminated her marriage to appellee Brian Bennett,
designated Brian the residential parent and legal custodian of the parties’ children,
imposed a child-support obligation on Julia, and divided the parties’ assets and liabilities.1
{¶ 2} In three related assignments of error, Julia contends the trial court committed
plain error, abused its discretion, and ruled against the weight of the evidence by
approving parts of the parties’ own agreement that are “untrue, exaggeration, hyperbole,
not consistent with the facts of the case, internally inconsistent, not equitable and/or
contrary to public policy.”
{¶ 3} The record reflects that the parties married in December 2011. Julia filed her
complaint for divorce in May 2017. The case proceeded to a January 11, 2019 hearing
before the trial court. At the outset of the hearing, the trial court noted that Brian was
present with counsel. The trial court noted that Julia was not present but that her attorney
was present and was acting on her behalf. Julia’s attorney, Mary Ann Thinnes, confirmed
that fact. (Tr. at 3.) The trial court also expressed its understanding that the parties had
reached an agreement resolving all issues except for disposition of the marital residence.
(Id. at 3-4.) Both attorneys agreed. (Id. at 3.) Thinnes identified the agreement as Joint
Exhibit 1. She informed the trial court that it included some handwritten changes to which
the parties had agreed. (Id. at 4.) Thinnes also told the trial court that the agreement could
be submitted as an exhibit and did not need to be read into the record. (Id. at 3-4.) The
trial court proceeded to take testimony from Brian regarding his consent to the agreement.
(Id. at 5-6.) Thinnes also represented to the court that Julia was “in agreement with all the
1 For purposes of clarity, we will refer to the parties by their first names.
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terms” of Joint Exhibit 1. (Id. at 7.) Brian and his father then testified about the marital
home, which was owned by a foundation that assists veterans. (Id. at 8.)
{¶ 4} Following the hearing, the trial court filed a February 11, 2019 decision in
which it found that the real estate was not marital property because the parties had no
ownership interest in it. (Doc. # 115 at 3.) In that same decision, the trial court found the
parties entitled to a divorce on the grounds of incompatibility. (Id. at 2.) It also stated:
This matter was before the court for a final contested divorce hearing
on January 11, 2019. Present were plaintiff, Julia Bennett, hereafter referred
to as Julia, represented by Attorney Mary Ann Thinnes and defendant, Brian
Bennett, hereinafter referred to as Brian, represented by Attorney Eric M.
Brown.
…
The parties read an agreement into the record prior to the
commencement of the hearing. The court orders that the terms of this
agreement be incorporated into a Final Judgment and Decree of Divorce
consistent with the rulings herein.
(Id. at 1-2.)
{¶ 5} At the conclusion of its decision, the trial court provided the following
instructions:
Counsel for plaintiff, Mary Ann Thinnes, shall prepare a Final
Judgment and Decree of Divorce consistent with the matters agreed by the
parties and this Decision so that decree may be filed no later than 21 days
from the filing of this Decision.
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If needed, Attorney Mary Ann Thinnes shall contact Jean Walther,
Judicial Assistant … for instructions on how to obtain a CD-ROM of the
agreement read into the record prior to the commencement of the hearing
so that those terms may be incorporated into the Final Judgment and
Decree of Divorce consistent with the rulings herein.
(Id. at 4.)
{¶ 6} The next docket entry by the trial court is a March 8, 2019 notice of potential
dismissal of the case based on Thinnes’ failure to file a proposed final judgment and
decree of divorce. (Doc. # 118.) Thereafter, on March 26, 2019, Thinnes requested a
telephone conference “to address certain misunderstandings re certain inaccurate and
we believe unnecessary language included in ‘agreement’ submitted at the final hearing
on January 11, 2019.” In her request, Thinnes advised that “[t]his is not an attempt to
change the substantive agreements discussed and reached prior to the final hearing.”
(Doc. # 120.) The trial court promptly granted the request for a telephone conference and
scheduled it for the following day. (Doc. # 121.) The record contains no account or
recording of what occurred during the telephone conference. The next docket entry is an
April 1, 2019 “Notice of Plaintiff’s Partial Withdrawal of Consent to Joint Exhibit 1.” (Doc.
# 122.) This filing consists solely of the following sworn statement by Thinnes:
Now comes Plaintiff, by and through counsel, and respectfully
withdraws Plaintiff’s consent to those parts of Joint Exhibit 1 which are on
its face untrue, exaggeration, hyperbole, not consistent with the facts of this
case, internally inconsistent, not equitable, contrary to public policy, and
which distort the substantive agreements discussed and reached during
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negotiations on January 11, 2019. The undersigned attorney for Plaintiff
reasonably believed under the circumstances, perhaps mistakenly, but in
good faith, that opposing counsel would not intend such distortions to be
incorporated into a final decree herein.
(Id.)
{¶ 7} The next docket entry is the trial court’s April 3, 2019 judgment entry and
decree of divorce from which Julia has appealed. (Doc. # 123.) That filing began with the
following introductory language:
This cause came on before the Court on the 11th day of January,
2019, Plaintiff and Defendant both appearing. Plaintiff, Julia F. Bennett, was
not present but appeared through her attorney, Mary Ann Thinnes, and
Defendant, Brian Bennett, appeared with his attorney, Eric M. Brown.
Attorney Thinnes requested a continuance so that her client could be
present, but the Court denied the request under the circumstances herein.
… The case proceeded to a contested hearing on the issue of real estate
only. Otherwise, the parties reached an agreement regarding all other
matters and said agreement was read into the record. …
Attorney Thinnes represented that she had Plaintiff’s limited authority
to agree or acquiesce to most issues before the Court, and pursuant to such
limited authority the final hearing proceeded on Defendant’s counterclaim.
(Id. at 1-2.)
{¶ 8} In the remainder of its judgment entry and decree of divorce, the trial court
granted the parties a divorce on the grounds of incompatibility. It resolved other issues
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between them consistent with the language of Joint Exhibit 1. In fact, the bulk of the
language of Joint Exhibit 1 was incorporated verbatim into the final judgment and decree
of divorce.
{¶ 9} In her three assignments of error, which she briefs together, Julia contends
the trial court committed plain error, abused its discretion, and ruled against the weight of
the evidence by approving and adopting parts of Joint Exhibit 1 that are “untrue,
exaggeration, hyperbole, not consistent with the facts of the case, internally inconsistent,
not equitable and/or contrary to public policy.”
{¶ 10} Julia begins her brief with assertions about her inability to assist her attorney
in preparing for the January 11, 2019 hearing. She also suggests that her attorney lacked
the ability to prepare adequately for the hearing. Julia further asserts that opposing
counsel first presented her attorney with a proposed settlement agreement on the
morning of the hearing and that her attorney lacked time to review it thoroughly or to
consult her. Julia claims that her attorney proceeded into the courtroom and accepted
Joint Exhibit 1 despite the fact “that it still contained considerable language that did not
reflect the actual circumstances—including that both parties appeared, and that both
parties had testified, and that the agreement was read into the record, signed by the
parties, and substantial hyperbole claiming that Julia had reviewed and understood and
waived many things which were unnecessary to the decree, and simply not true.”
(Appellant’s brief at 3.)
{¶ 11} Julia further asserts that her attorney spent several weeks attempting to
prepare a proposed final judgment and decree of divorce in accordance with the trial
court’s February 11, 2019 instructions. She references undocumented, off-the-record
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exchanges of draft decrees with opposing counsel and contends that opposing counsel
insisted on retaining “boilerplate” language from Joint Exhibit 1. (Id. at 4.) She also argues
that opposing counsel insisted on changing Joint Exhibit 1 when preparing the proposed
final judgment and decree of divorce.2 Specifically, Julia notes that Joint Exhibit 1 stated:
“The Defendant, Brian R. Bennett, appeared with a corroborating witness and his
attorney, Eric M. Brown. Plaintiff, Julia F. Bennett, did not appear, but her counsel, Mary
Ann Thinnes was present.” Julia contends Brian’s attorney changed the proposed final
judgment and decree of divorce to read: “This cause came before the Court on the 11th
day of January 2019, Plaintiff and Defendant both appearing.” (Emphasis added.) Julia
contends this change made it seem as if she was present for the hearing.
{¶ 12} Julia also claims Joint Exhibit 1 inaccurately contained language stating:
“Upon consideration thereof, and upon the sworn testimony of the parties, this Court
FINDS ….” Julia notes that this language was included in the trial court’s final judgment
and decree of divorce even though she did not appear for the hearing and presented no
sworn testimony. Julia also asserts that Joint Exhibit 1 misstated the birthday of one of
the parties’ children by two days. She claims this was not corrected in the final judgment
and decree of divorce.
{¶ 13} Julia next contends Joint Exhibit 1 makes repeated references to the parties
making full disclosures, being advised of certain things, waiving things, and agreeing to
or acknowledging things. Julia reasons that none of these assertions, which were
included in the final judgment and decree of divorce, can be true because she was not
2 Although not part of the record, it appears from the allegations in the parties’ briefs that
counsel for Brian ultimately drafted the final judgment entry and decree of divorce that the
trial court filed.
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present for the January 11, 2019 hearing.
{¶ 14} Finally, Julia contends the wrong child-support computation worksheet was
attached to Joint Exhibit 1 and that the parties had agreed to the use of a different one.
She acknowledges, however, that the trial court actually used the correct worksheet in its
final judgment and decree of divorce. She apparently complains only that the wrong
worksheet remains part of the record.3
{¶ 15} Having reviewed each of Julia’s arguments in light of Joint Exhibit 1 and the
trial court’s April 3, 2019 judgment entry and decree of divorce, we find her assignments
of error to be without merit. With regard to Julia’s assertions that her attorney lacked time
to prepare for the hearing or to consult with her and that opposing counsel foisted Joint
Exhibit 1 on attorney Thinnes on the morning of the hearing, the record contains no
evidence to support these claims. What the record does reflect is that Thinnes appeared
for the hearing and acted on Julia’s behalf with Julia’s consent and proceeded to tell the
trial court that Julia was “in agreement with all the terms” of Joint Exhibit 1. (Tr. at 7.)
{¶ 16} Although Julia suggests that Joint Exhibit 1 contains things that are “untrue,
exaggeration, hyperbole, not consistent with the facts of the case, internally inconsistent,
not equitable and/or contrary to public policy,” she admits that she “authorized [her
attorney] to represent her at the final hearing” and that her attorney “agreed to the
submission of the draft decree as Joint Exhibit 1.” (Appellant’s brief at 2-3.) By the time
3 According to Julia, the various “irregularities” about which she complains on appeal
were addressed with Brian’s counsel in several e-mail exchanges that are not part of the
record. Julia’s counsel then requested and obtained the telephone conference referenced
above. Julia asserts that during the telephone conference the trial court requested
separate proposed final decrees from both attorneys, but no such discussion or request
is in the record. In any event, on April 3, 2019 the trial court filed the final judgment and
decree of divorce from which Julia has appealed.
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Julia filed her belated April 1, 2019 “Notice of Plaintiff’s Partial Withdrawal of Consent to
Joint Exhibit 1,” the trial court already had filed its post-hearing February 11, 2019
decision accepting Joint Exhibit 1 as the agreement of the parties and ordering it
incorporated into a final judgment and decree of divorce. (See Doc. # 115 at 2, 4.) Once
the trial court made that order, we question whether Julia unilaterally could “withdraw” her
consent to portions of Joint Exhibit 1.
{¶ 17} But even if Julia could withdraw her consent, her notice was ineffectual. The
motion purported to withdraw consent to unspecified portions of Joint Exhibit 1 that were
“untrue, exaggeration, hyperbole, not consistent with the facts of the case, internally
inconsistent, not equitable and/or contrary to public policy.” The motion did not identify
anything in particular, leaving it to the trial court to ferret out which portions of the 20-page
document Julia found objectionable. The trial court had no obligation to undertake such
a task.
{¶ 18} In any event, based on our own review of Joint Exhibit 1, we see very little
that is plainly erroneous and nothing that is facially inequitable or contrary to public policy.
The only possibly erroneous or false information was (1) the statement that the parties
had appeared before the trial court and presented “sworn testimony,” (2) a reference to
Joint Exhibit 1 having been read into the record, and (3) a misstated birthday for one of
the parties’ children. Although Brian testified, Julia did not appear personally. Her attorney
appeared on her behalf and spoke for her. Strictly speaking, however, Julia presented no
“sworn testimony.” But the fact that Julia did not appear for the hearing, and therefore did
not testify, was made clear in the first paragraph of the first page of Joint Exhibit 1. As for
reading the parties’ agreement into the record, it is unclear whether this occurred. At the
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outset of the January 11, 2019 hearing, attorney Thinnes told the court that it was
unnecessary to read the agreement into the record of that hearing. In its subsequent
Feburary 11, 2019 decision, however, the trial court noted that the parties had read the
agreement into the record prior to the hearing. But regardless of whether the agreement
in fact was read into the record, Joint Exhibit 1 is part of the record, and there is no dispute
about what it says. We fail to see how Julia could have been prejudiced by the trial court
saying the agreement had been read into the record even if it was not. As for a child’s
birthday being misstated by two days, we fail to see how Julia was prejudiced. And
contrary to her argument on appeal, the incorrect birthday was corrected in the April 3,
2019 final judgment and decree of divorce. (See Joint Exhibit 1 at 1 and Doc. # 123 at 2.)
{¶ 19} As for Julia’s other complaints, we see nothing objectionable about the trial
court’s April 3, 2019 final judgment and decree of divorce stating: “This cause came
before the Court on the 11th day of January 2019, Plaintiff and Defendant both
appearing.” Although Julia contends this language implied that she was present for the
hearing, once again the record makes clear that she was not present and that her counsel
appeared on her behalf. Indeed, the next sentence states: “Plaintiff, Julia F. Bennett, was
not present but appeared through her attorney ….” (Doc. # 123 at 1.)
{¶ 20} We also find no merit in Julia’s argument that Joint Exhibit 1 makes
repeated references to the parties making full disclosures, being advised of or waiving
certain things, and agreeing to or acknowledging other things. She maintains that these
assertions, which were included verbatim in the final judgment and decree of divorce,
cannot be true because she did not attend the January 11, 2019 hearing. But Joint Exhibit
1 does not say that the parties made disclosures, were advised, agreed, acknowledged,
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or waived anything in person at the hearing. At the outset of the hearing, attorney Thinnes
presented the trial court with a copy of Joint Exhibit 1 and confirmed that it represented
the parties’ agreement on all issues except the real estate. (Tr. at 3-4.) Minutes later,
Thinnes assured the trial court that Julia was “in agreement with all the terms” of Joint
Exhibit 1. (Id. at 7.) Because Joint Exhibit 1 explicitly stated that Julia was not present for
the hearing, and because Thinnes presented it to the trial court at the outset of the
hearing, we reasonably can infer that Julia agreed to everything in Joint Exhibit 1 while
reviewing the case with her attorney sometime before the hearing and/or Thinnes
approved it on Julia’s behalf and with Julia’s permission.
{¶ 21} We are equally unpersuaded by Julia’s argument about the “wrong” child-
support computation worksheet being attached to Joint Exhibit 1. As a threshold matter,
there is no child-support worksheet attached to or accompanying the copy of Joint Exhibit
1 that is in the record. (See Tr. at Joint Exhibit 1.) Regardless, Julia acknowledges that
the trial court actually used the correct worksheet in its final judgment and decree of
divorce. She also makes no substantive argument about the trial court’s child-support
order being incorrect or otherwise objectionable. In fact, throughout her appellate brief,
Julia makes no substantive argument challenging any aspect of the final judgment and
decree of divorce with respect to its actual division of marital assets and liabilities, its
allocation of parental rights and responsibilities, child support, or anything else. Therefore,
even if we set aside the fact that Julia explicitly agreed to everything in Joint Exhibit 1
through her attorney, we fail to see how she was prejudiced by that document being
incorporated into the trial court’s April 3, 2019 final judgment and decree of divorce.
{¶ 22} For the foregoing reasons, we overrule Julia’s assignments of error and
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affirm the judgment of the Montgomery County Common Pleas Court, Domestic Relations
Division.
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WELBAUM, P.J. and FROELICH, J., concur.
Copies sent to:
Mary Ann Thinnes
Eric M. Brown
Brian Kruse
Hon. Timothy D. Wood
