Brown v. Brown, 92-G-1726

• Decision Date: 04 October 1993
• Docket Number: No. 92-G-1726,92-G-1726
• Citation: 630 N.E.2d 763,90 Ohio App.3d 781
• Parties: BROWN et al., Appellees, v. BROWN, Appellant. *
• Court: Ohio Court of Appeals

Page 781

90 Ohio App.3d 781

630 N.E.2d 763

BROWN et al., Appellees, v. BROWN, Appellant. ^*

No. 92-G-1726.

Court of Appeals of Ohio, Eleventh District, Geauga County.

Decided Oct. 4, 1993.

Patricia J. Schraff, Chardon, for appellees.

A.M. Psenicka, Chardon, for appellant.

CHRISTLEY, Presiding Judge.

This is an accelerated appeal from a decision of the Geauga County Court of Common Pleas, granting summary judgment in favor of appellees, James H. Brown and Tammy Velotta, on their complaint for a declaratory judgment. Appellees are the co-executors of the estate of Chester Brown.

Appellant, Eleanor M. Brown, was married to Chester for approximately thirty-one years. On January 10, 1992, appellant and Chester filed a petition for the dissolution of their marriage. Attached to this petition was a separation agreement, which the couple had signed two days earlier.

In relation to the marital residence, the separation agreement provided that appellant had agreed to immediately quitclaim her interest in the property to Chester. To then "equalize" the property distribution, the agreement further provided that Chester would pay appellant the sum of $80,000 "on or before January 14, 1992." In addition, the agreement specifically stated that this "exchange" of money for the marital residence "shall be binding on the heirs and executors or administrators of the parties."

On January 17, 1992, Chester committed suicide. Prior to taking his life, Chester had not complied with the separation agreement, in that he had not paid appellant the $80,000. However, upon being appointed the co-executors of Chester's estate, appellees offered to pay appellant the sum. When appellant refused to accept the offer, appellees brought the instant action, seeking an order declaring that the separation agreement was still binding upon appellant and the estate.

After appellant had answered and also filed two counterclaims, appellees moved for summary judgment. In responding to the motion, appellant argued, inter alia, that the separation agreement was no longer binding because Chester had failed to pay the $80,000 on or before January 14, 1992. In its entry granting appellees' motion, the trial court rejected this argument, noting that the agreement did not provide that it was conditioned upon the payment of the sum. As a result, the court declared that the agreement was still binding upon the parties.

Before this court, appellant has advanced two assignments of error for review. The first assignment pertains to the merits of the trial court's decision on appellees' motion. Appellant contends that the trial court erred in granting summary judgment because Chester's failure to pay the money in a timely manner constituted a material breach of the separation agreement. Specifically, she submits that Chester's actions prior to his death rendered the agreement nonbinding because time was of the "essence" as to the payment of the money.

Before addressing the merits of this argument, this court would note that the agreement at issue contained certain covenants indicating that the couple intended for the agreement to be the final settlement of their respective rights arising from their marriage. Besides providing that the exchange of money for the marital residence would be binding upon the couple's heirs and executors, the agreement also stated that it would continue to be binding even if a final decree were not issued in the proceeding to dissolve the marriage. In interpreting similar provisions, courts of this state have held that such language indicates that the parties intended to be bound even when one party dies before the marriage is dissolved. In re Estate of Hogrefe (1986), 30 Ohio App.3d 238, 30 OBR 397, 507 N.E.2d 414. Thus, if the agreement were valid in all other respects, it would still be binding upon appellant and Chester's estate.

As a general proposition, a separation agreement is subject to the same rules of construction as any other type of contract. Forstner v. Forstner (1990), 68 Ohio App.3d 367, 372, 588 N.E.2d 285, 288. Likewise, as with any other contract, the proper interpretation of an agreement is a question of law. Id.

Ohio courts have generally held that in contractual relationships, the time of performance is not of the essence. See, e.g., Lake Ridge Academy v. Carney (Oct. 16, 1991), Lorain App. No. 91CA005063, unreported, at 10, 1991 WL 215024, citing Kirby v. Harrison (1853), 2 Ohio St. 326. However, the parties can alter this basic rule by including an express stipulation on the matter. Mays v. Hartman (1947), 81 Ohio App. 408, 37 O.O. 228, 77 N.E.2d 93. Moreover, the courts of this state have consistently held that such a requirement can be implied from the nature of the contract itself, or from the circumstances under which it was negotiated. Lake Ridge Academy; Green, Inc. v. Smith (1974), 40 Ohio App.2d 30, 69 O.O.2d 17, 317 N.E.2d 227; Juratovac v. Gerl (Oct. 2, 1980), Cuyahoga App. No. 41841, unreported. ¹

As appellant correctly notes, some courts have held that even in the absence of an express stipulation, time will be found to have been of the "essence" when the contract sets forth a specific date for performance. Domigan v. Domigan (1933), 46 Ohio App. 542, 189 N.E. 860. Although the Domigan decision is now approximately sixty years old, its basic holding is still being followed by some appellate districts. See Lake Ridge Academy; Everett v. Reece (Feb. 24, 1989), Lucas App. No. L-88-060, unreported, 1989 WL 14745.

However, the support for Domigan has not been unanimous. See Wardell v. Turkovich (July 31, 1992), Tuscarawas App. No. 91AP070037, unreported, 1992 WL 195480; Juratovac. These cases hold that a reference to a specific date for performance does not constitute an express stipulation on whether time was of the essence. Under this line of authority, performance within a reasonable time of the specified date is sufficient to comply with the requirements of the contract.

Wardell involved a contract for the purchase of real property. In holding that the inclusion of a specific date for closing did not make time of the essence, the Fifth Appellate District quoted 3A Corbin on Contracts (1960) 365, Section 716. Although the following was not quoted in Wardell, Corbin indicates that this holding is based upon the following rationale:

"The reason that payment or conveyance at the exact time is not 'of the essence,' even though delay will be a breach of contract and a cause of action, is that the injury caused by the delay is little or nothing. Delays are frequent in these transactions; and it is the custom of men to overlook them, even though they may have stated in advance that they would not. The reason can also be stated in this form: performance at a time later than specified in the contract is 'substantial performance.' " (Footnote omitted.)

Even though the provision at issue in the instant case was just one of many covenants contained in the separation agreement, it was still essentially a promise to pay a sum of money in exchange for an interest in real property. As a result, the...