[Cite as May v. May, 2022-Ohio-4091.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

MICHAEL MAY

Plaintiff-Appellee

-vsVIRGINIA MAY

Defendant-Appellant

JUDGES:

: Hon. Earle E. Wise, P.J.

: Hon. W. Scott Gwin, J.

: Hon. Patricia A. Delaney, J.

:

:

: Case No. 2022 CA 00050

:

:

: OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of 

Common Pleas, Case No. 2020 DR 382

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: November 17, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JEFFREY JAKMIDES RAYMOND BULES

325 East Main Street 101 Central Plaza South, Ste. 1200

Alliance, OH 44601 Canton, OH 44702
Stark County, Case No. 2022 CA 00050 2

Gwin, J.,

{¶1} In this post-divorce action, appellant Virginia A. May [“Wife”] appeals the 

March 31, 2022 Judgment Entry of the Stark County Court of Common Pleas, Domestic 

Relations Division issuing a division of property order concerning its prior award of the 

marital residence to the Wife as agreed by the appellee, Michael W. May [“Husband”] in 

the parties Separation Agreement, and ordering Wife to divide the proceeds of the sale 

of the residence with Husband.

Facts and Procedural History

{¶2} The parties were divorced on January 15, 2021 by Decree of Divorce. The 

entry finalized an agreement entered upon the record November 19, 2020. The Decree 

of Divorce provided,

This Court further finds that the parties have entered into a complete 

agreement with respect to all previously contested matters. Both parties 

consented to all of the terms of such agreement, in open Court. The Court 

having had an opportunity to review the terms of the parties’ agreement 

finds that the parties’ agreement with respect to all financial issues in the 

within action is fair and equitable to each of the parties...Both parties 

stipulated to this in open Court and the Court, having conducted an 

independent review, concurs.

Judgment Entry/Decree of Divorce, filed Jan 15, 2021 at 1-2. 

{¶3} The Decree of Divorce further contained the following agreement regarding 

the marital property,
Stark County, Case No. 2022 CA 00050 3

Defendant Virginia A. May shall retain all right, title and interest in 

and to the real property located at 5305 Aster Avenue, N.E., Canton, Ohio 

44705 as her sole property, free and clear of any claim of Plaintiff with 

respect thereto. Upon the filing of the within Judgment Entry, Plaintiff shall 

execute a Quit Claim Deed transferring to Defendant all of his right, title and 

interest in and to the aforesaid real property. Such Deed shall be escrowed 

with Plaintiff's attorney until the closing of a refinancing transaction, by 

Defendant, with respect to all mortgage loans secured by the aforesaid real 

property. Within six months following the filing of the within Judgment Entry, 

Defendant shall close a refinancing transaction with respect to all mortgage 

loans secured by the aforesaid real property, for the purpose of removing 

Plaintiff from all liability with respect thereto. In the course of such 

refinancing transaction, Plaintiff’s counsel shall transfer to the closing agent 

with respect to such refinancing transaction, Plaintiff's executed Quit Claim 

Deed.

In the event that, within six months following the filing of the within 

Judgment Entry, Defendant has not closed the aforesaid refinancing 

transaction, this Court shall retain continuing jurisdiction over the ultimate 

disposition of the aforesaid real property and, in such event, either party 

may file a motion with this court in order to invoke such continuing 

jurisdiction. Within thirty days following November 19, 2020, Plaintiff shall 

vacate the real property located at 5305 Aster Avenue, N.E., Canton, Ohio 

44705, and Defendant, thereafter, shall have exclusive possession of the 
Stark County, Case No. 2022 CA 00050 4

aforesaid real property, subject to this Court's continuing jurisdiction in the 

event that the aforesaid refinancing transaction cannot be closed by the 

date specified in the within Judgment Entry.

Judgment Entry/Decree of Divorce at 2. 

{¶4} At the time of the divorce, the financial affidavit of Husband indicated the 

home had zero equity. T at 20-21; Defendant’s Exhibit G. The Wife’s financial affidavit 

indicated approximately $9,800 in equity. T. at 25; Defendant’s Exhibit H. The Stark 

County Auditor’s value of the property was $184,800. T. at 25, 63; Defendant’s Exhibit 

F. Husband’s comparative market analysis listed the value of the home at $214,800. T. 

at 24-25; Defendant’s Exhibit E.

{¶5} Husband vacated the residence on December 4 or 5, 2020. T. at 54. 

Husband executed a quit claim deed to Wife on January 29, 2021. T. at 23; Defendant’s 

Exhibit B. Husband made no mortgage payments subsequent to the divorce. T. at 66. 

Husband contributed no services or money toward improving the property subsequent to 

the divorce. T. at 55. Husband agreed that he took no interest in the property after the 

divorce. T. at 67. Husband further testified that once the divorce was finalized, “It wasn’t 

my house.” T. at 69.

{¶6} Wife worked to improve the property subsequent to the divorce. The trial 

court found that Wife had expended $19,000.00 of her own funds to improve the real 

estate’s value. Findings of Fact, Conclusions of Law and Decision, re: Disposition of 

Marital Residence, filed Mar 31, 2022. [Docket Entry No. 66]. The trial court further found 

that Wife contributed 560 hours of work on the property which when valued at the 

minimum wage rate of $8.80 per hour amounted to a total contribution of $4,928.00. Id. 
Stark County, Case No. 2022 CA 00050 5

{¶7} Wife testified that she had been granted a Covid-19 forbearance on the 

mortgage. Under this program, Wife testified that she made mortgage payments of $300 

on March 10, 2021, $250.00 on April 9, 2021, $1,180.67 on April 27, 2021 and $1,180.67 

on May 24, 2021. T. at 17-18.

{¶8} Sometime in early to mid-July, 2021 while perusing a realtor’s online 

listings, Husband discovered that the property had been listed for sale. T. at 55. He later 

determined that a sale of the home was either pending or contingent. T. at 56. Husband 

testified that he took no action at that time. Id. 

{¶9} The home was sold within one week of being listed for sale. T. at 5. 

However, the closing was not scheduled until August 30, 2021. See, Plaintiff’s Exhibit’s 

12; 15. The home sold for $260,500. T. at 64; Defendant’s Exhibit L. The mortgage was 

paid off on August 30, 2021. Id. The net proceeds of the sale were $65,569.99. T. at 6.

{¶10} On August 16, 2021, Husband filed a one paragraph motion captioned, 

“Plaintiff’s Motion to Invoke Court’s Continuing Jurisdiction Over the Sale of Real 

Property/ Motion for Order Dividing Real Estate Sale Proceeds” together with a notice of 

an August 16, 2021 hearing date. No motion to stay the sale, or the closing was filed by 

Husband or issued by the trial court. 

{¶11} By Judgment Entry filed August 20, 2021, the trial court granted the 

Husband’s motion and scheduled the motion for an evidentiary hearing on November 12, 

2021. [Docket Entry No. 47]. The court did not issue an order to stay the sale of the 

house or the closing scheduled for August 30, 2021.
Stark County, Case No. 2022 CA 00050 6

{¶12} The hearing took place upon the arguments of counsel before a magistrate 

on November 12, 2021. At the conclusion of the hearing, the magistrate dismissed 

Husband’s motion finding,

After considering oral arguments of counsel, the court will focus on 

the interpretation of the language in the divorce decree; The decree gives 

wife sole title and interest in the jointly owned real property; the decree 

orders that the wife shall refinance the mortgage in her name within 6 

months and, if she does not, then the court has continued jurisdiction to 

consider what to do with the house; The intent of that paragraph was to 

ensure that the property could be sold, and the mortgage could be paid off; 

In that way, Husband would not be “harmed” by remaining responsible for 

his portion of the mortgage owed; The court does not believe that the intent 

of the language was to ensure that if Wife went ahead and sold the house, 

paid off the mortgage through the sale, and made a profit, that Husband 

would then have the right to a portion of that profit; Therefore, Husband’s 

motion for an order to divide the sale proceeds of the home, which is Wife’s 

asset, will be dismissed.

Judgement Entry Magistrate’s Decision, filed November 15, 2021 at 2 (emphasis added). 

[Docket Entry No. 50].

{¶13} Husband filed objections to the magistrate’s decision on November 29, 

2021. [Docket Entry No. 52]. Husband additionally filed a motion for relief from judgment 

under Civ.R. 60(B)(4). [Docket Entry No. 53]. Wife filed a response to Husband’s 

objection and the motion on December 13, 2021. [Docket Entry No. 54; 55].
Stark County, Case No. 2022 CA 00050 7

{¶14} The trial court denied Husband’s motion for relief from judgment; however, 

the trial court reversed the decision of the magistrate and set the matter for an evidentiary 

hearing. Judgment Entry, filed January 13, 2022. [Docket Entry No. 56].

{¶15} The evidentiary hearing took place on March 24, 2022. The trial court held 

that the award of the home to Wife free and clear of any claim by the Husband was 

contingent upon the Wife’s refinancing the home within six months, and that by failing to 

do so she triggered the contingency. Therefore, the Decree required the court to 

distribute the asset pursuant to R.C. 3105.171. The trial court concluded that Wife was 

entitled to receive the value of her labor and expenditures which contributed to net 

proceeds, but that the balance of the proceeds of $41,641.99 would be equally divided 

between the parties.

Assignment of Error

{¶16} Wife raises one Assignment of Error,

{¶17} “I. THE TRIAL COURT ERRED IN DIVIDING THE PROCEEDS OF THE 

SALE OF PROPERTY WHICH WAS AWARDED TO THE APPELLANT FREE AND 

CLEAR OF ANY CLAIM BY APPELLEE AND QUITCLAIMED TO THE APPELLANT BY 

THE APPELLEE, WITH THAT QUITCLAIM RECORDED AND ALL CLAIM OF 

APPELLEE TO THE PROPERTY COMPLETELY EXTINGUISHED PRIOR TO THE 

SALE.

Standard of Review

{¶18} After a divorce has been granted, the trial court is required to equitably 

divide and distribute the marital estate between the parties and thereafter consider 

whether an award of sustenance alimony would be appropriate. Teeter v. Teeter, 18 Ohio 
Stark County, Case No. 2022 CA 00050 8

St.3d 76, 479 N.E.2d 890(1985), citing Wolfe v. Wolfe, 46 Ohio St.2d 399, 350 N.E.2d 

413(1976). The trial court is vested with broad discretion in determining the appropriate 

scope of these property awards. Berish v. Berish, 69 Ohio St.2d 318, 432 N.E.2d 

183(1982). Although its discretion is not unlimited, it has authority to do what is equitable. 

Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293, 1298(1981). A reviewing 

court should measure the trial court’s adherence to the test, but should not substitute its 

judgment for that of the trier of fact unless, considering the totality of the circumstances, 

it finds that the court abused its discretion. Section 3(B), Article IV of the Ohio 

Constitution; App.R. 12; Briganti v. Briganti, 9 Ohio St.3d 220, 222, 459 N.E.2d 896, 898

(1984); Kaechele v. Kaechele, 35 Ohio St.3d 93, 94, 518 N.E.2d 1197, 1199(1988). “The 

term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that 

the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219,450 N.E.2d 1140, 1142(1983).

{¶19} As an appellate court, we review a trial court’s decision upon post-decree 

motions under a standard of review of abuse of discretion. See, Kager v. Kager, 5th Dist. 

Stark No. 2001CA00316, 2002-Ohio-3090, citing Miller v. Miller, 37 Ohio St.3d 71, 74, 

523 N.E.2d 846 (1988); Murray v. Murray, 5th Dist. Licking No. 01-CA-00084, 2002-Ohio2505. An abuse of discretion can be found where the reasons given by the court for its 

action are clearly untenable, legally incorrect, or amount to a denial of justice, or where 

the judgment reaches an end or purpose not justified by reason and the evidence. 

Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship 

of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54.
Stark County, Case No. 2022 CA 00050 9

Issue for Appellate Review: Whether the domestic relations court’s decision

awarding Husband a share of the proceeds from the post-decree sale of the marital 

residence that the parties agreed in the Separation Agreement would be awarded solely 

to Wife in exchange for removing Husband from all liability with respect to the mortgage 

on said property is clearly untenable, legally incorrect or amounts to a denial of justice, or 

whether the judgment reaches an end or purpose not justified by reason and the 

evidence.

{¶20} In Jackson v. Jackson, this Court observed,

“Where the parties enter into a settlement agreement in the presence 

of the court, such an agreement constitutes a binding contract.” 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). As with usual contract interpretation, 

the court’s role is to give effect to the intent of the parties. The court must 

examine the contract as a whole and presume that the intent of the parties 
Stark County, Case No. 2022 CA 00050 10

is reflected in the language of the contract. In addition, the court looks to 

the plain and ordinary meaning of the language used in the contract unless 

another meaning is clearly apparent from the contents of the agreement. 

When the language of a written contract is clear, a court may look no further 

than the writing itself to find the intent of the parties. “As a matter of law, a 

contract is unambiguous if it can be given a definite legal meaning.” Sunoco, 

Inc. (R & M) v. Toledo Edison, Co., 129 Ohio St.3d 397, 2011–Ohio–2720, 

953 N.E.2d 285, ¶ 37 citing Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 

216, 2003–Ohio–5849, 797 N.E.2d 1256, ¶ 11.

5

th Dist. Richland No. 12CA28, 2013-Ohio-3521, ¶22.

{¶21} This Court has emphasized that “[n]either a change of heart nor poor legal 

advice is a ground to set aside a settlement agreement.” Pastor v. Pastor, 5th Dist. No. 

04 CA 67, 2005–Ohio–6946, ¶ 18, citing Walther v. Walther, 102 Ohio App.3d 378, 383, 

657 N.E.2d 332 (1st Dist.1995); Jackson, ¶24.

{¶22} In the case at bar, it should be noted that pursuant to the explicit terms of 

the agreement reached between Husband and Wife, Husband gave Wife “all right, title 

and interest” in the subject property as “her sole property.” In exchange Wife agreed to 

remove Husband from his liability with respect to any mortgage loans. The continuing 

jurisdiction of the domestic relations court only encompassed “the ultimate disposition of 

the aforesaid real property” in the event Wife did not remove Husband’s liability under the 

mortgage “within six months.”

{¶23} We can find no provision within the Separation Agreement that prohibits 

Wife from selling the property, as opposed to refinancing the property, and paying off the 
Stark County, Case No. 2022 CA 00050 11

mortgage. No provisions were set forth in the Separation Agreement that in the event 

Wife were to sell the property and satisfy the mortgage, Husband would be entitled to 

share in any profit from the sale. The marital residence provision was patently part of the 

quid pro quo of dividing marital assets.

{¶24} In the instant action, the record is devoid of any evidence Husband entered 

into the Separation Agreement as a result of fraud, undue influence, duress, or coercion. 

Husband voluntarily relinquished all of his interest in the marital residence to Wife. 

Husband could have contested the matter and asked the trial court to order the property 

sold, and any proceeds divided between the parties. He did not; rather, Husband’s only 

request was to be relieved of his liability on the mortgage. The paperwork for the sale of 

the property was completed and the mortgage was extinguished on August 30, 2021, 

approximately one month after the six-month period. However, Husband admitted that a 

sale was pending during the six-month period the trial court granted Wife to refinance the 

property. We find Husband received the benefit of his bargain when Wife paid off the 

mortgage on August 30, 2021. To utilize a sports analogy, if a basketball player launches 

the ball toward the goal and the buzzer sounds while the ball is still in the air, the goal will 

count even though the basket was not actually completed before time expired. 

{¶25} On March 31, 2022 at the time the trial court’s entry was filed, the trial court 

could not exercise jurisdiction “over the ultimate disposition of the aforesaid real property” 

for the reason that neither Husband nor Wife owned the property and, in fact, had not 

owned the property since August 30, 2021. Clearly, on March 31, 2022 the trial court 

could not order the title or the property be brought back before the court for disposition 

because title now rested in a third party. 
Stark County, Case No. 2022 CA 00050 12

{¶26} Nor could the trial court effectuate a disposition of the Husband’s liability 

under the terms of the mortgage. The purpose of the provision that Wife remove Husband 

from all liability with respect to the mortgage had been fulfilled on August 30, 2021, some 

seven months before the trial court’s decision in this matter. 

{¶27} The evidence in the record is clear, it was not until Husband discovered that 

Wife stood to make a profit from the sale of the home that Husband developed any interest 

in the property subsequent to the divorce.

{¶28} We find the trial court’s decision concerning the disposition of the proceeds 

from the Wife’s sale of her property, filed March 31, 2022, arbitrarily voided the terms and 

the clear intent of the Separation Agreement concerning the marital residence to which 

the parties had agreed. We cannot find that the intent of the language concerning the 

refinancing of the property was to ensure that if Wife sold the house, paid off the mortgage 

through the sale, and made a profit, that Husband would then have the right to a portion 

of that profit. Husband’s liability under the mortgage had already been extinguished and 

the property had already been transferred seven months before the time that the trial 

court held the evidentiary hearing and issued its decision. Thus, the trial court’s decision 

could have no effect on either the disposition of the “real property,” or the Husband’s 

liability under the mortgage for that property. We cannot find any language in the 

Separation Agreement or in R.C. 3105.171 that mandates the trial court order the 

proceeds of the sale of Wife’s asset to be divided with Husband after the property had 

been transferred to a third party and the mortgage had been paid-off. 

{¶29} The sole basis for the trial court’s decision was that the sale had not been 

finalized before the expiration of the six-month time period. We find this reason to be 
Stark County, Case No. 2022 CA 00050 13

arbitrary and to effectively divest Wife of an asset that Husband had voluntarily given her 

free and clear of any claim of his. At the time of the trial court’s decision Wife no longer 

owned the property and Husband’s liability under the terms of the mortgage had been 

extinguished for over seven months. Thus, the intent of the Separation Agreement had 

been fulfilled.

{¶30} We find the trial court’s disposition of the proceeds from the sale of Wife’s 

property to be clearly untenable, legally incorrect, and amounts to a denial of justice. 

Further the trial court’s judgment reaches an end or purpose not justified by reason and 

the evidence. 

{¶31} Appellant-Wife’s sole Assignment of Error is sustained.

{¶32} Section 3(B)(2), Article IV of the Ohio Constitution, gives this Court the 

power to affirm, reverse, or modify the judgment of an inferior court. Accordingly, we hold 

that all proceeds from the sale of the residence located at 5305 Aster Avenue, NE, 

Canton, Ohio 44705 are the property of Wife free and clear of any claim by Husband.
Stark County, Case No. 2022 CA 00050 14

{¶33} The judgment of the Stark County Court of Common Pleas, Domestic 

Relations Division is reversed and this case is remanded for proceedings in accordance 

with our Opinion and the law.

By Gwin, J., 

Wise, Earle, P.J., and

Delaney, J., concur