[Cite as Schultz v. Schultz,
2023-Ohio-1712.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
DANA M. SCHULTZ, CASE NO. 2022-P-0049
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas,
Domestic Relations Division
RICHARD E. SCHULTZ,
Defendant-Appellant. Trial Court No. 2020 DR 00002
OPINION
Decided: May 22, 2023
Judgment: Affirmed
James P. Reddy, Jr., 55 Public Square, Suite 2100, Cleveland, OH 44113 (For Plaintiff-Appellee).
Eric D. Hall, P.O. Box 232, Medina, OH 44258 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Richard E. Schultz (“Mr. Schultz”), appeals from the judgment
entry of the Portage County Court of Common Pleas, Domestic Relations Division, that
granted him and appellee, Dana Schultz (“Ms. Schultz”), a divorce and adopted the
parties’ Agreement on Financial Issues and Agreement on Custody and Visitation.
{¶2} In his sole assignment of error, Mr. Schultz contends the trial court abused
its discretion by adopting the parties’ agreements without conducting an investigation
and/or holding a hearing to determine his mental state and capacity to knowingly and
voluntarily enter into those agreements. As evidence of his incapacity, he points to the
parties’ custody agreement, which provides him with the option to obtain a psychiatric
evaluation so that he may modify his supervised visitation with the parties’ two minor
children.
{¶3} After a careful review of the record and pertinent law, we find Mr. Schultz’s
assignment of error to be without merit. Mr. Schultz confuses psychiatric evaluations
used as a tool to determine the best interest of children in custody proceedings and
modifying supervised visitation with a mental status examination to determine the
capacity to enter into contractual agreements. Further, he raises this issue for the first
time on appeal, and he has failed to file a transcript of the final divorce hearing.
{¶4} The judgment of the Portage County Court of Common Pleas, Domestic
Relations Division, is affirmed.
Substantive and Procedural History
{¶5} The parties were married in 2008, and two children were born of the
marriage—a boy in March 2011 and a girl in June 2016.
{¶6} In early January 2020, Ms. Schultz filed a complaint for divorce with
children.
{¶7} As relevant to this appeal, in January 2021, in an agreed judgment entry,
based upon the recommendation of the guardian ad litem (“GAL”), the parties agreed that
they and the children would undergo psychological evaluations no later than March 17,
2021. The parties agreed Dr. Aimee Thomas (“Dr. Thomas”) from Lighthouse Family
Center would conduct the evaluations and the parties would split the cost.
{¶8} However, in numerous judgment entries, the court noted Mr. Schultz’s
incompliance with the order and his failure to contact Dr. Thomas. In April 2021, Ms.
Schultz filed a motion to show cause in part because Mr. Schultz had failed to contact Dr.
Thomas and complete his evaluation. In June 2021, in an agreed judgment entry, the
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parties agreed that Mr. Schultz would immediately contact Dr. Thomas to schedule his
appointments for the psychological evaluation. Several months later, in November 2021,
the trial court issued a pretrial order, which in part noted that the court had previously
ordered a psychological evaluation of both parties and that Mr. Schultz’s evaluation
remained uncompleted. A final pretrial was held in April 2022. Mr. Schultz acknowledged
Dr. Thomas could complete the evaluation with the information she currently had and the
opportunity to observe him with the children was not an issue. The trial court issued a
notice in May 2022 that the court received the psychological evaluation with a parenting
emphasis.
{¶9} During the pendency of the divorce proceedings, Mr. Schultz was convicted
of domestic violence. Ms. Schultz was the victim, and a temporary criminal protection
order and a civil protection order were issued for her protection against Mr. Schultz. The
trial court ordered Mr. Schultz’s visitation with the children to be supervised by his parents.
The visit location was modified to Place of Peace, which provides a safe environment for
supervised visitation and safe exchanges for families who are victims of domestic
violence and/or sexual assault. These visits eventually transferred to video calls due to
the COVID-19 pandemic.
{¶10} In early August, after holding a final divorce hearing, the trial court issued a
judgment entry granting the parties a divorce and adopting their Agreement on Financial
Issues and Agreement on Custody and Visitation. Ms. Schultz was named the residential
parent and legal custodian.
{¶11} In the Agreement on Custody and Visitation, the parties agreed Mr.
Schultz’s visitations would continue to be supervised and they would occur either once
per week for one hour or every other week for two hours. The agreement further provided
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Mr. Schultz with an option to undergo a psychiatric evaluation no later than December 15,
2022, and, if he did so, he could file a motion to modify the supervised visitation. If Mr.
Schultz elected not to undergo the evaluation, the agreement provided that his supervised
visitation would continue until he chooses to do so. The agreement requiring him to
complete a psychiatric evaluation was based on the issues set forth in one of the GAL’s
reports. (During the case, the first GAL voluntarily withdrew, and a second GAL was
appointed. Both submitted final reports for the court.)
{¶12} Mr. Schultz raises one assignment of error for our review:
{¶13} “The trial court abused its discretion by adopting the settlement agreement
and agreement on custody and visitation without conducting an investigation and full
hearing to determine and adjudicate the appellant’s mental state and capacity to
knowingly and voluntarily enter into said agreement when the trial court gave the option
to appellant to obtain a psychiatric evaluation.”
Capacity to Contract
{¶14} In his sole assignment of error, Mr. Schultz contends the trial court abused
its discretion by adopting the parties’ agreements without determining whether he had the
capacity to enter into the parties’ agreements voluntarily and knowingly when the court
gave him an option to obtain a psychiatric evaluation in order to modify his supervised
visitation.
{¶15} Once a settlement agreement is executed, both parties must appear before
the court and verify that each entered into the agreement voluntarily and that both are
satisfied with the terms of the agreement. Kolar v. Shapiro, 11th Dist. Lake No. 2007-L-
148, 2008-Ohio-2504, ¶ 19. Once the court incorporates the agreement into a decree of
dissolution, the agreement loses its separate identity as a contract.
Id. A decision
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whether or not to enforce the terms of a settlement agreement is a discretionary one. Id.
Accordingly, the trial court’s decision will be reviewed for an abuse of discretion.
Id.
Similarly, custody determinations, including decisions involving shared parenting plans or
“custody agreements,” are reviewed under an abuse of discretion standard. Liston v.
Liston, 11th Dist. Portage No. 2011-P-0068,
2012-Ohio-3031, ¶ 15.
{¶16} An abuse of discretion is the trial court’s “‘failure to exercise sound,
reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,
2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004). “When a pure
issue of law is involved in appellate review, the mere fact that the reviewing court would
decide the issue differently is enough to find error.” Id. at ¶ 67. “By contrast, where the
issue on review has been confided to the discretion of the trial court, the mere fact that
the reviewing court would have reached a different result is not enough, without more, to
find error.” Id.
{¶17} Mr. Schultz confuses the need for psychiatric evaluations to be used as a
tool in determining the best interest of children in custody proceedings and modifying
supervised visitation with a mental status examination to determine the capacity to enter
into contractual agreements. The fact that the parties and the court determined the need
for the first is not evidence of a mandate for the second.
{¶18} Trial courts use psychological and psychiatric evaluations in custody
determinations because the psychological well-being of the parties is an important factor
in determining the best interest of the children. Yazdani-Isfehani v. Yazdani-Isfehani, 170
Ohio App.3d 1,
2006-Ohio-7105,
865 N.E.2d 924, ¶ 35 (4th Dist.).
{¶19} Thus, R.C. 3109.04(C) provides: “Prior to trial, the court may cause an
investigation to be made as to character, family relations, past conduct, earning ability,
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and financial worth of each parent and may order the parents and their minor children to
submit to medical, psychological, and psychiatric evaluations.”
{¶20} Similarly, Civ.R. 35(A) states: “When the mental or physical condition …
of a party, or of a person in the custody or under the legal control of a party, is in
controversy, the court in which the action is pending may order the party to submit himself
to a physical or mental examination or to produce for such examination the person in the
party’s custody or legal control. The order may be made only on motion for good cause
shown and upon notice to the person to be examined and to all parties and shall specify
the time, place, manner, conditions, and scope of the examination and the person or
persons by whom it is to be made.” (Emphasis added.)
{¶21} Mr. Schultz is attempting to use an option to undergo a psychiatric
evaluation in his custody agreement as evidence that he lacked the capacity to enter into
the parties’ agreements at the final divorce hearing. However, when parties enter into a
settlement agreement in the presence of the trial court, that agreement constitutes a
binding contract. Miller v. Miller, 7th Dist. Mahoning No. 05 MA 111, 2006-Ohio-1288, ¶
11. Thus, principles of contract law apply to determine Mr. Schultz’s capacity to enter
into a contract. See
id.
{¶22} The proper test for mental competency to contract is whether the person
claimed to be incompetent understood the nature of the transaction and the effects of his
or her own actions. Id. In other words, to avoid a contract on grounds of incompetence,
there must be such weakness or derangement of mental powers as to make the person
wholly unable to enter into business transactions that would require him to look after his
own interests and deal on equal terms with persons of ordinary intellectual vigor. In re
J.M. v. A.M., 10th Dist. Franklin No. 19AP-832,
2022-Ohio-1092, ¶ 43.
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{¶23} Most fundamentally, a party seeking to void a contract because of lack of
mental capacity has the burden of proof by clear and convincing evidence. Miller at ¶ 11.
A party may raise the issue of whether he or she was competent at the time of entering
into an agreed judgment entry in a motion for relief from judgment. In re K.K.,
179 Ohio
App.3d 220,
2008-Ohio-5772,
901 N.E.2d 283, ¶ 67 (2d Dist.); In re J.M. at ¶ 42;
Bretzfelder v. Bretzfelder, 9th Dist. Summit No. 23674,
2008-Ohio-2669, ¶ 6.
{¶24} For instance, in In re K.K., the Second District reversed the trial court’s
denial of appellant’s motion for relief from judgment in which she contested her mental
competency to enter into the parties’ settlement agreement because she submitted
affidavits of her and her treating psychiatrist that raised the issue of whether she was
competent at the time she entered into the in-court agreement. Id. at ¶ 68. Thus, the
Second District determined the trial court should have held a hearing to determine
whether the appellant was, in fact, incompetent when she entered into the in-court
agreement. Id. at ¶ 73.
{¶25} In this case, Mr. Schultz raises the issue of his alleged incompetence for
the first time on appeal. “‘It is a well established rule that an appellate court will not
consider any error which counsel for a party complaining of the trial court’s judgment
could have called, but did not call, to the attention of the trial court at the time when such
error could have been avoided or corrected by the trial court.’” Bretzfelder at ¶ 7, quoting
Bank One N.A. v. Swartz, 9th Dist. Lorain No. 03CA008308,
2004-Ohio-1986, ¶ 17
(rejecting a similar argument of incompetency to enter into a settlement agreement for
the first time on appeal). The failure to raise this issue before the trial court forfeited it for
purposes of appeal.
Id.
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{¶26} In addition, Mr. Schultz failed to file a transcript of the final divorce hearing
pursuant to App.R. 9(B), nor did he file a statement of the evidence pursuant to App.R.
9(C). Thus, we must presume the regularity of the trial court proceedings, which includes
Mr. Schultz’s capacity to enter into the parties’ agreements that the trial court incorporated
in the final divorce decree. See Dottore v. Feathers, 11th Dist. Portage No. 2007-P-0073,
2009-Ohio-539, ¶ 10; Knapp v. Edwards Laboratories,
61 Ohio St.2d 197, 199,
400
N.E.2d 384 (1980) (“When portions of the transcript necessary for resolution of assigned
errors are omitted from the record, the reviewing court has nothing to pass upon and thus,
as to those assigned errors, the court has no choice but to presume the validity of the
lower court’s proceedings and affirm”).
{¶27} Mr. Schultz’s sole assignment of error is without merit.
{¶28} The judgment of the Portage County Court of Common Pleas, Domestic
Relations Division, is affirmed.
JOHN J. EKLUND, P.J.,
EUGENE A. LUCCI, J.,
concur.
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