Salter v. Salter , 2013 Ohio 559 ( 2013 )

[Cite as Salter v. Salter, 2013-Ohio-559.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CORY D. SALTER C.A. No. 26440
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JENNIFER E. SALTER nka ELIJAH COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. 2010 02 0437
DECISION AND JOURNAL ENTRY
Dated: February 20, 2013
BELFANCE, Judge.
{¶1} Cory Salter appeals the trial court’s interpretation of the divorce decree. For the
reasons set forth below, we affirm.
I.
{¶2} Mr. Salter and Jennifer Elijah married in 2008. In early 2010, Mr. Salter filed a
complaint for divorce. The parties entered into a separation agreement, which the court
incorporated into the final decree of divorce. One month after the trial court issued the divorce
decree, Ms. Elijah filed a contempt motion against Mr. Salter, alleging that he refused to pay the
Fifth Third Bank credit cards as agreed in the separation agreement.
{¶3} Ms. Elijah subsequently moved for relief from judgment pursuant to Civ.R.
60(B)(3) and also sought a declaratory judgment from the court interpreting the parties’ divorce
decree. Mr. Salter opposed Ms. Elijah’s motions. The trial court denied Ms. Elijah’s Civ.R.
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60(B) motion but issued an entry stating that the divorce decree required Mr. Salter to pay the
Fifth Third Bank credit cards.
{¶4} Mr. Elijah has appealed, raising three assignments of error for our review. For
ease of discussion, we have rearranged his assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT INTERPRETED AN
UNAMBIGUOUS SEPARATION AGREEMENT CONTRARY TO THE
ORDINARY MEANING OF THE SEPARATION AGREEMENT AND THE
INTENT OF THE PARTIES.
{¶5} In Mr. Salter’s first assignment of error, he argues that the separation agreement
unambiguously makes Ms. Elijah responsible for the Fifth Third Bank credit cards. We disagree.
{¶6} “Separation agreements are contracts, subject to the same rules of construction as
other contracts.” (Internal quotations and citations omitted.) Hahn v. Hahn, 9th Dist. No.
11CA0064-M, 2012-Ohio-2001, ¶ 9. “The interpretation of any terms of a separation agreement
is a question of law, as is the determination of whether a contract is ambiguous[,]” and, therefore,
this Court reviews both propositions de novo. Id. at ¶ 9. “In construing any written instrument,
the primary and paramount objective is to ascertain the intent of the parties. The general rule is
that contracts should be construed so as to give effect to the intention of the parties.” Aultman
Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51, 53 (1989). “Common words
appearing in a written instrument will be given their ordinary meaning unless manifest absurdity
results, or unless some other meaning is clearly evidenced from the face or overall contents of
the instrument.” (Internal quotations and citations omitted). Id. at 54.
{¶7} The separation agreement, in relevant part, reads:
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Each party warrants and represents that they know of no other debts in the name
of the other party not specifically set forth herein, and further warrants and
represents that they have not incurred any debt in the name of the other party not
specifically set forth herein. See Exhibit A[.] Both parties hereby agree to
assume the sole liability and responsibility for any and all other debts, obligations
or liabilities of any nature not enumerated above in his or her own name
whatsoever, whether assumed before or hereafter.
Specifically, each shall be responsible for any and all credit and/or
credit/charge/debit card debt in his or her own name * * *.
(Emphasis deleted.). “See Exhibit A” was inserted in handwriting and initialed by Mr. Salter and
Ms. Elijah. “Exhibit A” was a handwritten addendum on the final page of the document, directly
beneath the parties’ signatures, which stated:
[Ms. Elijah] shall indemnify & hold [Mr. Salter] harmless on her Chase and Bank
of America credit cards, and all other cards in her name.
[Mr. Salter] shall indemnify & hold [Ms. Elijah] harmless on his Chase, both Fifth
Third, and Capital One credit cards, and all other cards in his name.
{¶8} Mr. Salter argues that “[t]he ordinary meaning of the companion paragraphs in
Exhibit A is that [Ms.] Elijah keeps her credit card and their associated debt, and [Mr.] Salter
keeps his credit cards and associated debt.” He further argues that Exhibit A should be read to
require Mr. Salter to pay “his Chase, both [his] Fifth Third, [and his] CapitalOne credit cards * *
*.” Generally, an initial modifier will modify all elements that follow unless there is a
subsequent modifier. See, e.g., Strunk and White, The Elements of Style, 27 (4th Ed.2000)
(“[A]n article or a preposition applying to all the members of a series must either be used only
before the first term or else be repeated before each term.”). See also Washington Edn. Assn. v.
Natl. Right to Work Legal Defense Found., Inc., 187 Fed.Appx. 681, 682 (9th Cir.2006)
(compiling cases explaining this general rule). However, in this sentence, “both” is a subsequent
modifier, meaning that “his” would not apply to the Fifth Third portion of the clause. Both is
commonly defined as meaning “the one as well as the other” or “affecting or involving the one
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and the other[.]” Merriam-Webster’s Collegiate Dictionary, 145 (11th Ed.2005). Thus, the clear
import of Exhibit A is that Mr. Salter is responsible for “one [of the Fifth Third credit cards] as
well as the other[,]” regardless of whose name was on the account.
{¶9} Nevertheless, Mr. Salter argues that Exhibit A of the separation agreement must
be read in concert with the rest of the agreement. According to Mr. Salter, “[t]he theme
emanating from the [s]eparation [a]greement is ‘[y]ou take what what is yours, I will take what is
mine[,]’” and, Exhibit A should be read with this in mind. However, Mr. Salter’s interpretation
of the separation agreement ignores that the term “Exhibit A” was inserted before the phrase
“[b]oth parties hereby agree to assume the sole liability and responsibility for any and all other
debts, obligations or liabilities of any nature not enumerated above in his or her own name * *
*.” (Emphasis deleted.). Thus, Exhibit A is an exception to the more general catch-all provision
since the debts in Exhibit A must be considered as having been “enumerated above[.]”
{¶10} We acknowledge that Exhibit A could have been clearer; namely, it could have
specifically listed the account numbers corresponding to the Fifth Third accounts for which Mr.
Salter was responsible. Nevertheless, the clear import of Exhibit A is that the parties had two
Fifth Third credit cards and that Mr. Salter was responsible for both of them, regardless of whose
name was on the account.
{¶11} Accordingly, Mr. Salter’s first assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT RETROACTIVELY MODIFIED THE PARTIES’
DIVISION OF PROPERTY CONTRARY TO R.C. 3105.171(I) WHEN IT
ORDERED APPELLANT, CORY SALTER, TO PAY FOR APPELLEE’S
“FIFTH THIRD OVERDRAFT” DEBT, WHICH WAS NOT SPECIFICALLY
IDENTIFIED IN THE PARTIES’ SEPARATION AGREEMENT.
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{¶12} Mr. Salter argues in his third assignment of error that the trial court’s
determination that he must pay the “overdraft” debt impermissibly modified the final divorce
decree by requiring him to pay a debt that was not a credit card debt. See R.C. 3105.171(I) (“A
division or disbursement of property or a distributive award made under this section is not
subject to future modification by the court except upon the express written consent or agreement
to the modification by both spouses.”). He argues that, to the extent Exhibit A of the separation
agreement requires him to pay the Fifth Third Bank credit cards, it did not require him to pay the
“overdraft” debt because this debt was not a credit card. However, Mr. Salter never raised this
issue in the trial court despite Ms. Elijah arguing that he was responsible for the overdraft
account, and this Court will typically not address arguments raised for the first time on appeal.
See Raykov v. Raykov, 9th Dist. No. 26107, 2012-Ohio-2611, ¶ 18.
{¶13} Furthermore, Mr. Salter even stated in his motion in opposition that Ms. Elijah
“has demanded that [he] pay for * * * two Fifth-Third credit cards that are in [her] name.” In
other words, not only did Mr. Salter not raise the issue below, his actions in the trial court are
inconsistent with his position on appeal. As we noted in Mr. Salter’s first assignment of error,
there is no other reasonable interpretation of Exhibit A other than that the parties had two Fifth
Third credit cards and Mr. Salter was responsible for both of them. Notably, the parties’
agreement makes no distinction between the accounts, and nothing in the agreement would allow
us to conclude that the “overdraft” account is anything other than a credit card. Given that Mr.
Salter never disputed the issue below, we cannot conclude that the trial court’s journal entry
constituted a modification of the division of marital property after the decree had been finalized.
{¶14} Accordingly, Mr. Salter’s third assignment of error is overruled.
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ASSIGNMENT OF ERROR II
ASSUMING, ARGUENDO, THAT THE SEPARATION AGREEMENT WAS
AMBIGUOUS, THE TRIAL COURT’S INTERPRETATION RELIED ON
OUTDATED AFFIDAVITS TO DETERMINE THE PARTIES’ INTENT, AND
THE COURT’S INTERPRETATION IS NOT SUPPORTED BY COMPETENT,
CREDIBLE EVIDENCE.
{¶15} In Mr. Salter’s second assignment of error, he argues that, if the separation
agreement was ambiguous, the trial court was required to hold an evidentiary hearing. However,
because we have concluded that the separation agreement was not ambiguous, this assignment of
error is moot, and, therefore, we decline to address it. See App.R. 12(A)(1)(c).
III.
{¶16} Mr. Salter’s first and third assignments of error are overruled, and his second
assignment of error is moot. The judgment of the Summit County Court of Common Pleas,
Domestic Relations Division, is affirmed.
Judgment affirmed.
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
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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.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
CHARLES E. GRISI, Attorney at Law, for Appellant.
PAUL E. ZINDLE, Attorney at Law, for Appellee.