[Cite as E.B. v. R.N., 2024-Ohio-1455.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

E.B. (nee) N.

Appellant

v.

R.N.

Appellee

C.A. No. 30199

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE No. DR-2019-01-0077

DECISION AND JOURNAL ENTRY

Dated: April 17, 2024

CARR, Judge.

{¶1} Defendant-Appellant E.B. (“Wife”) appeals the judgment of the Summit County 

Court of Common Pleas, Domestic Relations Division. This Court reverses and remands the 

matter for proceedings consistent with this decision.

I.

{¶2} Wife and Plaintiff-Appellee R.N. (“Husband”) were married on August 21, 2016. 

At the time of the marriage, Husband was 39 years old, and Wife was 33 years old. Wife is an 

attorney and Husband is a business owner. After being unable to conceive children, the parties 

sought the help of a fertility specialist and tried artificial insemination. When that was ultimately 

unsuccessful, in June 2018, the couple went to another doctor and opted to try invitro fertilization 

(“IVF”). In so doing, in August 2018, the couple signed a document titled “Disposition of 

Embryos” and subtitled “Declaration of Intent[.]” The document provided information and options 

to the couple concerning what the couple would like done with the embryos in the event of 
2

 

separation, divorce, death, etc. The first round of IVF produced 4 embryos; 2 were determined to 

be normal and 2 were considered abnormal. The second round of IVF produced 10 embryos; nine 

were determined to be normal and one was considered abnormal. The embryos were not implanted 

in Wife and were frozen.

{¶3} In January 2019, Husband filed a complaint for divorce and Wife filed a 

counterclaim for divorce in July 2019. In December 2019, Wife was diagnosed with thyroid 

cancer. Wife underwent surgery to remove her thyroid gland and then received radioactive iodine 

in March 2020. Wife was informed that she should not become pregnant for 12 months following 

her radiation treatment. 

{¶4} The matter proceeded to a trial before a magistrate in early 2021. However, 

following the trial, the magistrate left employment with the trial court and a new judge was 

assigned to the case. At that time, the matter was assigned to a visiting judge. The visiting judge 

opted to rehear the matter. Trial was set to take place in the beginning of October 2021. During 

the first hearing date, the trial court was informed that the parties reached an agreement with 

respect to all matters aside from the disposition of the frozen embryos. After receiving information 

related to the parties’ agreement, the trial court recessed until October 29, 2021, at which point 

testimony pertaining to the disposition of the frozen embryos was heard. 

{¶5} On November 17, 2021, a decree of divorce was filed. The trial court determined 

that frozen embryos were marital property, subject to distribution by the trial court. The trial court 

acknowledged that the parties’ desires for the frozen embryos were at odds: Wife wanted the 

frozen embryos awarded to her so that she could use them to become pregnant and Husband was 

adamant that he wanted to be disentangled from Wife and wanted the frozen embryos to be donated 

to another couple to be used to achieve a pregnancy. Based upon the language of the document, 
3

 

the testimony of the parties, and the paucity of available law, the trial court awarded 7 frozen 

embryos to Wife and 7 to Husband with the requirement that all of the frozen embryos be given to 

the clinic for donation for another couple to use to achieve a pregnancy.

{¶6} Wife has appealed, raising a single assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW IN MISCONSTRUING 

A STANDARD FORM “DECLARATION OF INTENT” CONTRACT 

CREATED BY THE FERTILITY CLINIC AS EXPRESSING THE MUTUAL 

INTENT AND AGREEMENT OF THE PARTIES WITHOUT ANALYZING 

AND PROPERLY BALANCING THE PARTIES’ INTERESTS IN 

DETERMINING THE APPROPRIATE DISPOSITION OF THE FOURTEEN 

PRE-EMBRYOS CREATED THROUGH THE IVF PROCESS SHORTLY 

BEFORE THE HUSBAND FILED FOR DIVORCE.

{¶7} Wife argues in her sole assignment of error that the trial court erred in applying the 

contractual approach to the disposition of the frozen embryos as opposed to the balancing 

approach. Wife argues the Contract was ambiguous as she believed Husband was consenting to 

Wife receiving the frozen embryos to become pregnant herself and Husband believed he did not 

consent to doing so. Because of this alleged ambiguity, Wife argues that her and Husband’s 

interests should have been balanced by the trial court. In addition, Wife asserts that categorizing 

the frozen embryos as marital property is inadequate as they have the potential to develop into 

children. Because this Court concludes that the trial court’s approach was inconsistent with the 

nature of the frozen embryos and overarching principles of Ohio law, we agree the trial court 

abused its discretion. 

{¶8} Three main approaches to determining the disposition of frozen embryos in the 

context of divorce have been recognized: (1) the contractual method; (2) contemporaneousmutual-consent method; and (3) the balancing method. See Kotkowski-Paul v. Paul, 11th Dist. 
4

 

Portage No. 2021-P-0088, 2022-Ohio-4567, ¶ 50. “Under the contractual approach, a court 

considers a contract between the parties and the clinic with which they were treated during the IVF 

process. If the contract is valid and enforceable, the inquiry ends and the contractual provisions 

govern. This approach is embraced by the majority of jurisdictions that have addressed the issue.” 

Id. at ¶ 51. At least two courts in Ohio have previously adopted this approach. See Cwik v. Cwik, 

1st Dist. Hamilton No. C-090843, 2011-Ohio-463, ¶ 56-65; Karmasu v. Karmasu, 5th Dist. Stark 

No. 2008 CA 00231, 2009-Ohio-5252, ¶ 25-29. “Under the contemporaneous-mutual-consent 

approach, the frozen embryos must remain in storage until the parties reach an agreement regarding 

disposition.” Kotkowski-Paul at ¶ 52. “[W]here no agreement exists or * * * [is] deemed 

controlling, courts use the third approach, which balances the parties’ competing interests.” Id. at 

¶ 53. The Eleventh District in Kotkowski-Paul concluded that the trial court there appropriately 

applied the balancing approach under circumstances where there was an executed contract, but it 

was not produced by the parties and the parties could not agree to the allocation of the frozen 

embryos. Id. at ¶ 55.

{¶9} Unfortunately, all of these approaches are inadequate in one way or another, and 

there is a dearth of statutory law in Ohio in this area to make up for these inadequacies; a problem 

that must be rectified by action by the legislature.

{¶10} First, and foremost, the approaches do not account for the fact that what is involved 

is not property, but life or the potential for life. The frozen embryos are life in one of its earliest 

stages of development; the cells are human, alive, and capable of developing into a child. See 

Black’s Law Dictionary (11th ed.2019) (defining “embryo” as “[a] developing but unborn or 

unhatched animal; esp., an unborn human from conception until the development of organs[.]”). 

Because this Court cannot conclude that the frozen embryos are property, we likewise cannot say 
5

 

that they are martial property as that term has been defined in the revised code. See R.C. 

3105.171(A)(3)(a).

{¶11} While there are not specific statutes to address the situation before us, there is the 

express public policy of the State of Ohio, which is to prefer the preservation and continuation of 

life whenever constitutionally permissible. See R.C. 9.041 (“It is the public policy of the state of 

Ohio to prefer childbirth over abortion to the extent that is constitutionally permissible.”). While 

that statute specifically addresses abortion, it is nonetheless telling and instructive to courts 

addressing what should become of frozen embryos caught up in the midst of a divorce proceeding.

{¶12} Additionally, the nature of the consent agreements that are presented to couples by 

clinics to address the disposition of the frozen embryos is also problematic, revealing flaws in the 

contract approach. See generally Forman, Embryo Disposition and Divorce: Why Clinic Consent 

Forms are not the Answer, 24 J. Am. Acad. Matrim. Law 57 (2011). “Research on embryo 

disposition decision-making highlights the difficulty patients experience deciding the fate of their 

embryos and the volatile nature of that decision. The circumstances surrounding review and 

execution of the forms, as well as the substance of the forms themselves, cast further doubt on 

whether these forms accurately reflect the progenitors’ intentions even at the time of signing, let 

alone whether they can reasonably forecast preferences years into the future in the context of 

divorce.” Id. at 66-67. The check-the-box options within many of the documents, including the 

one involved here, are inadequate because they 

cannot hope to capture all the nuances that couples might find relevant in a divorce 

situation. For example, the forms do not allow the couples to specify different 

dispositions based on the outcome of the IVF cycle, such as a successful birth 

versus a failed attempt. This fact plays a critical role for many patients in forming 

their disposition preferences. [One] could imagine myriad other possibilities 

couples might want to consider that standardized forms do not typically offer, such 

as dividing the remaining embryos between the parties; allowing for one party to 

use the embryos, but specifying that the ex-spouse not be considered a legal parent 
6

 

under that situation, or specifying that parental rights would flow from postdissolution use of any embryos. Forms also usually fail to differentiate embryos 

created with gamete donors, even though it seems doubtful that a court would 

actually enforce a disposition giving control of such embryos to the non-genetic 

spouse or partner.

Id. at 78-79. 

{¶13} The form at issue here contains confusing statements with limited options for the 

involved parties. The document contains only three check-the-box options for the couple to choose 

among in the event of divorce. They are:

[1.] A court decree and/or settlement agreement will be presented to the Clinic 

directing use to achieve pregnancy in one of us or donation to another couple for 

that purpose.

[2.] Award for research purposes, including but not limited to embryonic stem cell 

research, which may result in the destruction of the embryos, but will not result in 

the birth of a child.

[3.] Destroy the embryos.

{¶14} The parties here chose the first option; however, an examination of the provision 

reveals it actually contains multiple options: either a decree or a settlement agreement will issue 

and, within either option, either the frozen embryos will be used to achieve a pregnancy in a party 

or in another couple. 

{¶15} Given the foregoing, we cannot say that adopting the contract approach in this 

matter effectively addresses the important and complicated issues present. Instead, until there is 

statutory guidance to further direct this Court, we determine that these matters should each be 

considered upon their unique facts taking into account the fact that the frozen embryos are not 

property, but life or the potential for life. 

{¶16} While the trial court characterized the parties’ wishes as being completely at odds, 

this is not entirely the case. Both parties want the frozen embryos to be used to achieve a 

pregnancy. Thus, the general wishes of the parties are in line with the public policy of Ohio. See 
7

 

R.C. 9.041. The dispute centers on whether Wife should be permitted to utilize the frozen embryos 

to attempt to achieve a pregnancy in herself. 

{¶17} Recently, the Ohio Constitution was amended to provide that:

Every individual has a right to make and carry out one’s own reproductive 

decisions, including but not limited to decisions on:

1. contraception;

2. fertility treatment;

3. continuing one’s own pregnancy;

4. miscarriage care; and

5. abortion.

Ohio Constitution, Article I, Section 22(A). 

{¶18} Here, both Husband and Wife made the decision to have frozen embryos created 

using their respective sperm and eggs; by doing so they exercised rights that are now recognized 

by the Ohio Constitution. These potential biological children exist. Husband now desires that the 

frozen embryos be donated to an unknown couple; it appears his wishes are largely rooted in 

wanting to both be disentangled from Wife and having no knowledge of what ultimately becomes 

of the frozen embryos, and therefore no responsibility or guilt associated with that decision. This 

seems to ignore the weight and importance of the decision both parties have already made: to 

bring the frozen embryos into existence in the first place. Wife on the other hand already considers 

the frozen embryos to be her children and desperately wants to utilize them to become pregnant. 

Wife believes that the frozen embryos might represent the last best chance for her to have her own 

biological child. Due to her health and age, Wife in essence is arguing that Husband is trying to 

deny Wife her opportunity and choice to become pregnant with her own biological child. 
8

 

{¶19} Regardless, if the parties’ general wish is successful, there will be one or more 

children in the world who are biologically related to Husband and Wife. Husband cannot escape 

that fact by donating the frozen embryos to an unknown couple. His opportunity to avoid that 

possibility ended when he agreed, along with Wife, to have the frozen embryos created. While 

the unknown couple could live across the country, they also could live next door to Husband.

{¶20} Given the circumstances before this Court, we determine Wife should have the 

opportunity to utilize the frozen embryos to attempt to achieve pregnancy. This result honors the 

parties’ wishes that the frozen embryos be used to achieve a pregnancy. While Husband’s wish 

that Wife not be allowed to utilize the frozen embryos may be understandable in the context of a 

divorce, it also appears to be based on a desire to avoid the consequences of creating potential 

biological children. However, consequences from such a choice are inevitable. The frozen 

embryos contain biological material from both Husband and Wife, thereby connecting Husband 

and Wife to the frozen embryos irrespective of whether that is no longer desired. Wife’s request 

is more consistent with honoring the parties’ wishes while taking into account the fact the frozen 

embryos also are connected to Husband and Wife. 

{¶21} While typically this Court will remand matters to the trial court for it to reconsider 

its decision if the Court concludes an incorrect approach has been taken, see, e.g., In re S.H., 9th 

Dist. Summit No. 29884, 2021-Ohio-3448, ¶ 29, this is not a typical case. Based upon the 

discussion above, this Court concludes allowing Wife to utilize the frozen embryos to achieve 

pregnancy is the only reasonable approach. Therefore, the trial court abused its discretion in 

concluding otherwise. Further, because Wife’s chances of successfully achieving pregnancy with 

those frozen embryos will only decrease with the passage of time given her advancing age, we 

conclude it is not in the interests of justice to delay the matter longer by first remanding the matter 
9

 

to the trial court for it reconsider the whole issue. Nonetheless, Husband should still have a say in 

what role, if any, he will play in the child’s life should Wife’s pregnancy be successful. Wife 

expressed during the hearing that she would abide by Husband’s wishes. Upon remand, Husband 

should be given the opportunity to set forth those wishes with respect to the potential offspring, 

and those wishes should be incorporated into the amended decree. 

{¶22} Wife’s assignment of error is sustained.

III.

{¶23} Wife’s assignment of error is sustained. The order of this Court is that Wife is 

entitled to the use of all fourteen of the embryos for implantation if she so chooses. The judgment 

of the Summit County Court of Common Pleas, Domestic Relations Division, is reversed, and the 

matter is remanded for proceedings consistent with this decision.

Judgment reversed,

and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the 

docket, pursuant to App.R. 30.
10

 

Costs taxed to Appellee.

DONNA J. CARR

FOR THE COURT

JILL FLAGG LANZINGER, J.

CONCURRING.

{¶24} I concur with the majority opinion. I write separately, however, to emphasize a few 

points. 

{¶25} I agree with the majority’s conclusion that frozen embryos cannot be classified as 

marital property and divided under the principles of property law in this circumstance. Like 

anything containing one’s own genetic material, a human embryo is not marital property subject 

to a property division in a divorce action. See Render, The Law of the Body, 62 Emory L.J. 549, 

555 (2013) (addressing a New York case wherein the court determined that a kidney donated from 

one spouse to another during the parties’ marriage could not be considered marital property in a 

divorce action). To hold otherwise is nonsensical. 

{¶26} Ohio law does not confer human rights on embryos or treat them as persons under 

the law unless and until there is an intent of the birthing person to gestate the embryos. This is 

embodied in Ohio’s murder statute, which criminalizes the “unlawful termination of another’s 

pregnancy[,]” as well as the recent amendment to the Ohio Constitution, which provides that 

“[e]very individual has a right to make and carry out one’s own reproductive decisions, including 

* * * continuing one’s own pregnancy * * *.” R.C. 2903.02(A); Ohio Constitution, Article I, 

Section 22(A). 
11

 

{¶27} Here, Wife has expressed her intent to gestate embryos created with her own 

genetic material. It is a biological parent’s–as opposed to another person’s–fundamental right to 

have custody and parent his or her own child(ren). In re Adoption of P.L.W., 9th Dist. Medina No. 

20CA0032-M, 2020-Ohio-5559, ¶ 11, quoting In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 

28 (“Ohio courts have long emphasized that ‘[t]he right to parent one’s children is a fundamental 

right.’”); In re Brayden James, 113 Ohio St.3d 420, 2007-Ohio-2335, ¶ 16 (“[T]he Constitutions 

of both the United States and the state of Ohio afford parents a fundamental right to custody of 

their children.”). Ordering parties to donate their frozen embryos when at least one parent is 

willing and able to have custody and parent a child(ren) violates this fundamental right. 

{¶28} Even if this Court were to accept the trial court’s categorization of embryos as 

marital property subject to division, the trial court’s decision in this case is still erroneous, 

warranting reversal. Treating the frozen embryos as marital property, dividing them between the 

parties, and then ordering the parties to donate them to a third party who lacks any ownership 

interest in them is inconsistent with the principles of property division. Simply put, dividing 

property only to then order the parties to donate that property is not a property division; it is a 

circumvention of the law to reach a desired–yet erroneous–result. 

HENSAL, P. J.

CONCURRING IN PART, AND DISSENTING IN PART.

{¶29} As the opinions of my colleagues acknowledge, this matter involves significant 

questions that have not yet been addressed by the legislature. Nonetheless, this Court’s role is 

constrained by the Ohio Constitution: when exercising our appellate jurisdiction, we are a 

reviewing court. See Ohio Constitution, Article IV, Section 3(B)(2). Consistent with this mandate, 
12

 

this Court “follow[s] the principle of party presentation.” State v. Gwynne, __ Ohio St.3d __, 

2023-Ohio-3851, ¶ 33 (Fischer, J., concurring in judgment only). In other words,

[W]e rely on the parties to frame the issues for decision and assign to courts the 

role of neutral arbiter of matters the parties present.” Greenlaw v. United States, 

554 U.S. 237, 243 (2008). We are certainly not limited to the analysis presented 

by the parties or the analysis of the lower court in resolving an issue before the 

court, as this court must apply correct legal principles to resolve legal issues. See

Turner v. CertainTeed Corp., 155 Ohio St.3d 149, 2018-Ohio-3869, ¶ 11; In re 

D.R., ___Ohio St.3d __, 2022-Ohio-4493, ¶ 37, fn. 2 (Fischer, J., dissenting). But 

this does not mean that we can address issues that are not before the court simply 

because they are tangentially related to the proposition of law presented for review. 

The parties decide what issues to raise for review—it is not the role of this court to 

question those decisions.

Id. Therefore, this Court refrains from deciding cases based on errors that have not been raised by 

the parties. State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, ¶ 21. We apply a plain-error 

standard of review when parties argue error that was not brought to the attention of the trial court. 

Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. When appellants fail to articulate an 

argument in support of an alleged error, this Court declines to construct one on their behalf. See, 

e.g., State v. Dardie, 9th Dist. Summit No. 30168, 2023-Ohio-1656, ¶ 29; I.R. v. D.R., 9th Dist. 

Wayne No. 22AP0012, 2023-Ohio-1427, ¶ 23. These practices are not hurdles that this Court 

places in the path of parties. They are safeguards that ensure that this Court operates within the 

parameters set for us in the Ohio Constitution. 

{¶30} These practices also reflect the “cardinal principle” of judicial restraint: “if it is not 

necessary to decide more, it is necessary not to decide more.” State ex rel. King v. Cuyahoga Cty. 

Bd. of Elections, 170 Ohio St.3d 42, 2022-Ohio-3613, ¶ 34, quoting State ex rel. LetOhioVote.org 

v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, ¶ 51. Because “our role, as members of the 

judiciary, requires fidelity to the separation-of-powers doctrine[,]” this Court must also “respect 

that the people of Ohio conferred the authority to legislate solely on the General Assembly.” State 
13

 

v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, ¶ 28 (O’Connor, C.J., concurring). Consequently, 

although this Court may agree that an area of the law needs clarification, we must exercise judicial 

restraint. AJZ’s Hauling, L.L.C. v. TruNorth Warranty Programs of North America, __ Ohio St.3d 

__, 2023-Ohio-3097, ¶ 22. 

{¶31} In this case, the parties unequivocally framed the question before the trial court as 

one of contract interpretation. They tailored the presentation of evidence, including the objections 

raised during the hearing, based on that assumption: both argued that the document unambiguously 

reflected their respective positions, but in the event that the trial court found the document to be 

ambiguous, both presented testimony regarding their intent. Neither party argued that the 

Agreement was “inadequate” or “confusing.” They did not maintain that the Agreement conflicted 

with the public policy of the State of Ohio. Neither Husband nor Wife argued for or against an 

approach to this question other than discerning their intent from the terms of the document within 

the framework of a contract analysis. Because Article I, Section 22 of the Ohio Constitution did 

not yet exist, neither addressed its implications. 

{¶32} In her appellate brief, Wife still framed her arguments in contractual terms, 

maintaining that the trial court erred by determining that the Agreement was unambiguous. Within 

that framework, however, Wife argued for the first time on appeal that the Agreement was not 

only ambiguous but that it failed to reflect the mutual agreement and intentions of the parties. As 

a consequence, Wife argued for the first time on appeal that “the Contract should not and cannot 

be the sole, dispositive and controlling authority for the trial court’s disposition” and that “a 

blended approach is necessary and required by the law and the circumstances in this case[.]” Wife 

maintained that there was no meeting of the minds—in other words, that there was no contract at 

all and, therefore, that a “balancing approach” was required.
14

 

{¶33} This Court should not take up these arguments for the first time on appeal. In doing 

so—and, indeed, in going further than Wife advocates in her brief—this Court violates the 

foundational principles of judicial restraint that are central to our role as a reviewing court. Doing 

so in this case has far-reaching consequences. By implication, this Court has invalidated the 

agreements between fertility clinics and countless couples who desire to have children, adding 

further confusion to an area that requires clarity instead. This Court has done so with reference to 

a constitutional amendment that was not in existence when this case was argued in the trial court 

or briefed on appeal, based upon arguments that the trial court did not have the opportunity to 

consider, and founded on a record that was constrained by the parties’ unequivocal expression of 

the issue presented to the trial court. In addition, I cannot concur with the extraordinary step of 

entering judgment based on resolution of matters that the parties have not argued and the trial court 

has not had the opportunity to consider in the first instance.

{¶34} My analysis of this matter, therefore, would begin where the parties began: with 

the Agreement. I agree that the trial court erred in the manner in which it considered that issue. 

See Gwynne, __ Ohio St.3d __, 2023-Ohio-3851, at ¶ 33 (Fischer, J., concurring in judgment only).

{¶35} Revised Code Section 3105.011(A) explains that “[t]he court of common pleas 

including divisions of courts of domestic relations, has full equitable powers and jurisdiction 

appropriate to the determination of all domestic relations matters.” A “domestic relations matter” 

includes “Any matter committed to the jurisdiction of the division of domestic relations of 

common pleas courts under section 2301.03 of the Revised Code.” Id.; R.C. 3105.011(B)(1). 

Section 2301.03(I)(1), in turn, designates two judges of the Summit County Court of Common 

Pleas as judges of the domestic relations division. Those judges “exercise the same powers and 

jurisdiction” as other judges of the court of common pleas. Id. See also Clark v. Weekly, 9th Dist. 
15

 

Medina No. 17CA0090-M, 2018-Ohio-2546, ¶ 7, quoting Pula v. Pula-Branch, 129 Ohio St.3d 

196, 2011-Ohio-2896, ¶ 6 (noting that this language “is not a limiting provision, but rather a 

specific grant of authority.”). 

{¶36} Although Civil Rule 75(F) provides that a judgment in a divorce action must 

include division of property, determination of spousal support when appliable, and allocation of 

parental rights and responsibilities, those categories do not exhaust the equitable powers and 

jurisdiction described by Section 3105.011(A). Therefore, as an initial matter, it is not necessary 

for a domestic relations judge to characterize the matter before this Court into one of those 

categories. In this case, the trial court presumed that it was necessary to categorize this as a form 

of property division. Given the equitable powers described in Section 3105.011(A), that 

presumption was incorrect. In addition, although the equitable powers of the domestic relations 

division are broad, they are not without boundaries. Not only do the opinions of my colleagues 

engage in an analysis of the nature of the embryos that the trial court did not conduct, they presume 

that the question itself is within the authority of the domestic relations division to decide. Whether 

the question is a “domestic relations matter,” however, is also a question that should not be 

determined by this Court in the first instance. R.C. 3105.011(B).

{¶37} It is well-established that a contract is “a promise, or set of promises, actionable 

upon breach.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 16. The essential elements 

of a contract “include an offer, acceptance, contractual capacity, consideration[,] * * * a 

manifestation of mutual assent and legality of object and of consideration.” Id., quoting Perlmuter 

Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). Husband and Wife agreed 

that the Agreement is a contract. The parties to the Agreement were Husband and Wife – acting 

together – and the Clinic. The Agreement consisted of “a promise, or set of promises, actionable 
16

 

upon breach” between the Clinic and the couple, and the elements necessary for the formation of 

a contract were present in the same respect. Id. The Agreement did not bind Husband with respect 

to Wife or Wife with respect to Husband. 

{¶38} It follows that the trial court’s analysis should not have focused on the interpretation 

of a contract for purposes of an action upon breach. In other words, the Agreement constitutes 

evidence of Husband’s and Wife’s intentions, but the trial court was not constrained by the 

Agreement in its analysis. To the extent that the trial court limited its consideration of the issue at 

hand in this way, that limitation was error. I would reverse the trial court’s decision and remand 

this matter for further proceedings on that basis. In doing so, however, I am aware that the First 

District Court of Appeals, in a decision released after briefing and argument were complete in this 

case, has taken a different position. See Reeder v. Reeder, 1st Dist. Hamilton No. C-220631, 2023-

Ohio-2678, ¶ 40 (analyzing a similar agreement as if in an action upon breach). 

{¶39} Because neither the parties nor the trial court have addressed the correct framework 

for considering the Agreement as an exercise of the trial court’s equitable powers under Section 

3105.011(A), however, I would not do so in the first instance. Therefore, I cannot agree that this 

Court should enter judgment based on any other analysis instead of remanding this matter to the 

trial court. As a result, I concur only in the disposition that the judgment of the trial court must be 

reversed and that the matter must be remanded for further proceedings. 

APPEARANCES:

ERIC H. ZAGRANS, Attorney at Law, for Appellant.

ADAM R. MORRIS and RANDAL LOWRY, Attorneys at Law, for Appellee.