Salpietro v. Salpietro , 2023 Ohio 169 ( 2023 )

[Cite as Salpietro v. Salpietro, 2023-Ohio-169.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
Gina Salpietro Court of Appeals No. WD-22-028
Appellant Trial Court No. 2021-DR-0037
v.
Benjamin J. Salpietro, Jr. DECISION AND JUDGMENT
Appellee Decided: January 20, 2023
*****
Drew Hanna, for appellant.
Julie S. Hoffman, for appellee.
*****
MAYLE, J.
{¶ 1} Appellant, Gina Salpietro, appeals the April 5, 2022 judgment of the Wood
County Court of Common Pleas, Domestic Relations Division, granting her and appellee,
Benjamin Salpietro Jr., a divorce. With one small modification, we affirm the trial
court’s decision.
I. Background and Facts1
{¶ 2} Gina and Benjamin married in 1990 and separated in 2020. Benjamin is an
orthopedic surgeon, and Gina was a homemaker for much of the parties’ marriage. They
have three emancipated children together.
{¶ 3} Although they began a contested divorce trial, by the start of the second day,
they had “reached an agreement * * * on everything except spousal support and legal
fees.” At the request of Gina’s attorney, Benjamin’s attorney read the terms of the
parties’ settlement into the record. They agreed on the distribution of personal property,
how to handle marital funds in a joint bank account, issues involving automobile loans,
terms for selling the marital home, issues with filing their tax returns, who was
responsible for paying specific bills, Benjamin procuring a life insurance policy with
Gina as the beneficiary, and distribution of Benjamin’s interests in two businesses. Two
terms of the agreement are particularly relevant here. First, the parties agreed that
Benjamin would give Gina a lump sum cash payment to compensate her for half of
Benjamin’s interest in a medical office building that generates rental income and in a
surgical consulting business. Because Benjamin was paying Gina for her interest in the
rental property and the consulting business, the parties agreed that the trial court’s
spousal support award should be based solely on the income he earns from his surgical
practice.
1
For ease of discussion, we present a cursory summary of the facts here, and will discuss
the facts in more detail as they become relevant to Gina’s assignments of error.
2.
{¶ 4} After Benjamin’s attorney recited the agreement, Gina’s attorney “conferred
with [his] client * * *” and said that “what [Benjamin’s attorney] has recited is an
accurate statement of the settlement.” Later, when Benjamin’s attorney clarified that they
had also agreed that the court’s spousal support award should be based only on
Benjamin’s income from his surgical practice because Benjamin was giving Gina a cash
payment for her half of his interests in the rental property and the consulting business,
Gina’s attorney simply responded, “So agreed.”
{¶ 5} Following the divorce hearing, the trial court issued its decision on spousal
support and attorney fees. The court made findings regarding all of the factors in R.C.
3105.18(C)(1), which controls an award of spousal support. The court ultimately decided
to award Gina spousal support of $13,000 per month for four years, followed by $10,000
per month for ten years, and then $6,000 per month indefinitely. Specifically, the court’s
decision said:
IT IS ORDERED that on May 1, 2022 and on the first day of each
month for the following 48 months defendant Benjamin Salpietro shall pay
to plaintiff Gina Salpietro $13,000 as spousal support; that on May 1, 2026
and on the first day of each month for the following 120 months defendant
Benjamin Salpietro shall pay to plaintiff Gina Salpietro $10,000 as spousal
support; and that on May 1, 2032 and on the first day every ensuing month
thereafter defendant Benjamin Salpietro shall pay to plaintiff Gina Salpietro
$6,000 as spousal support.
3.
The court also awarded Gina $25,000 for attorney fees, which was in addition to $10,000
in fees that Benjamin was ordered to pay earlier in the litigation. Gina’s total award for
attorney fees was $35,000.
{¶ 6} Additionally, the trial court ordered Benjamin’s attorney to prepare a
proposed judgment entry incorporating the terms of the parties’ settlement and the trial
court’s decision on spousal support and attorney fees. Benjamin’s attorney certified that
she sent the proposed entry to Gina’s attorney on March 22, 2022, and that he had not
responded, objected, or countered with his own proposed entry. On April 5, 2022, the
trial court signed and filed the entry that Benjamin’s attorney prepared.
{¶ 7} Gina now appeals, raising ten assignments of error:
1. The Court Errs and Abuses its discretion by approving the
proposed Divorce Decree without giving the Appellant/Plaintiff an
opportunity to Object to the proposed Decree, containing major errors.
2. It is Error by the Court to limit Appellee/Defendant’s income for
Spousal Support to just his income as a Surgeon.
3. The Court Errs in ruling there was no Financial Misconduct by the
Appellee/Defendant.
4. The Court Errs by not considering the contributions
Appellant/Plaintiff made to the Appellee/Defendant in completing
Appellee/Defendant’s Surgical Residency.
4.
5. The Court Errs by failing to order Appellee/Defendant to pay
Appellant/Plaintiff’s health, dental, and optical insurance.
6. The Court Errs by reducing Appellant/Plaintiff’s Spousal Support
over time.
7. The Court Errs by limiting Spousal Support to $13,000 per month.
8. The Court Errs by making a clerical error in the Spousal Support
Payment Schedule.
9. The Court Errs by not requiring Appellee/Defendant’s Spousal
Support Payments to be made by Bank Withholding.
10. The Court Errs in granting inadequate Attorney Fees to the
Appellant/Plaintiff.
II. Law and Analysis
{¶ 8} In her assignments of error, Gina argues that the trial court (1) erred by
adopting the final decree of divorce prepared by Benjamin’s attorney, (2) committed
numerous errors in reaching its spousal support award, (3) made a clerical error in the
spousal support schedule, (4) should have found that Benjamin committed financial
misconduct, (5) should have ordered Benjamin to pay spousal support through bank
withholding, and (6) did not award Gina enough attorney fees. We address each
argument in turn.
5.
A. We must disregard items that are not in the trial court record.
{¶ 9} As a preliminary matter, we note that Gina makes multiple arguments based
on information that is not in the appellate record. Appellate review of a trial court’s order
is limited to the record made in the trial court. Fifth Third Bank v. Fin. S. Office
Partners, Ltd., 2d Dist. Montgomery No. 23762, 2010-Ohio-5638, *3, citing Durrstein v.
Durrstein, 2d Dist. Montgomery No. 18688, 2001 WL 1203014 (Oct. 12, 2001). The
record that we can consider is “the record as it existed at the time the trial court rendered
judgment.” Leiby v. Univ. of Akron, 10th Dist. Franklin No. 05AP-1281, 2006-Ohio-
2831, ¶ 7, citing Chickey v. Watts, 10th Dist. Franklin Nos. 04AP-818 and 04AP-1269,
2005-Ohio-4974, ¶ 14; Baker v. Senior Emergency Home Repair EOPA, 6th Dist. Lucas
No. L-14-1203, 2015-Ohio-3083, ¶ 11, quoting State v. Ishmail, 54 Ohio St.2d 402, 377
N.E.2d 500 (1978), paragraph one of the syllabus (“Ohio law is clear that we must limit
our review on appeal to the record before the court at the time of judgment: ‘A reviewing
court cannot add matter to the record before it, which was not a part of the trial court’s
proceedings and then decide the appeal on the basis of the new matter.’”). We cannot
consider any exhibits attached to the parties’ briefs that were not made part of the trial
court’s record. Star Mgt., LLC v. Fayne, 6th Dist. Lucas No. L-12-1342, 2014-Ohio-
2319, ¶ 7.
{¶ 10} Basically, absent some legal authorization, we cannot consider facts that
were not presented to the trial court; documents that were not filed with, admitted into
evidence by, or proffered to the trial court; or any acts that occurred or issues that arose
6.
after a party filed their notice of appeal. Baker at ¶ 11; see also In re Beck, 7th Dist.
Belmont No. 00 BA 52, 2002-Ohio-3460, ¶ 21. An exhibit attached to a party’s appellate
brief—but not filed with the trial court—is not part of the record. In re K.Y., 8th Dist.
Cuyahoga No. 109111, 2020-Ohio-4140, ¶ 9, citing Lisboa v. Lisboa, 8th Dist. Cuyahoga
No. 95673, 2011-Ohio-351, ¶ 10.
{¶ 11} With that in mind, in reviewing Gina’s assignments of error, we will
disregard (1) any factual information that the parties included in their briefs that is not
supported by something in the trial court’s record as it existed on May 3, 2022, when
Gina filed her notice of appeal; (2) the exhibits that Gina attached to her brief that were
not admitted at the divorce trial or otherwise filed with the trial court; (3) Gina’s
attorney’s emails; (4) several unfiled motions that Gina included in her brief; (5) Gina’s
proposed final decree (which the trial court did not adopt and is not in the trial court
record); and (6) the email and proposed final entry from Gina’s attorney that Benjamin
attached to his brief.
B. Gina cannot appeal the portions of the divorce decree that she consented to.
{¶ 12} Gina’s second and third assignments of error each relate to portions of the
final decree that Gina agreed to in her settlement with Benjamin. In her second
assignment of error, Gina contends that the trial court abused its discretion in considering
and applying the spousal-support factors in R.C. 3105.18(C)(1). She argues that the trial
court erred by limiting Benjamin’s income for spousal support purposes to the wages he
made from his surgical practice, rather than including his income from other sources,
7.
including the rental property and consulting business. In her third assignment of error,
Gina argues that the trial court erroneously determined that Benjamin did not commit
financial misconduct because, she claims, he “dissipated” over $358,000 of marital assets
within the meaning of R.C. 3105.171(E)(4) in the 16 months leading up to the final
divorce hearing. Because Gina consented to the trial court limiting Benjamin’s income
and to all parts of the property settlement, she cannot now appeal those issues.
{¶ 13} As the Ohio Supreme Court recognized almost a century ago, when “a
consent decree has been entered by the court, such a decree is not even subject to direct
attack, except for irregularity or fraud in its procurement.” Sponseller v. Sponseller, 110
Ohio St. 395, 399, 144 N.E. 48 (1924), citing Harding v. Harding, 198 U.S. 317, 335, 25
S.Ct. 679, 49 L.Ed. 1066 (1905); Schenk v. Mohre, 6th Dist. Wood No. WD-83-33, 1983
WL 6982, * 1 (Oct. 28, 1983) (“[I]t is well settled that a judgment of a court of
competent jurisdiction, entered by consent of the parties, will not be reversed on error and
is binding and conclusive between the parties in the absence of fraud.”); see also Shanks
v. Shanks, 4th Dist. Ross No. 96CA2252, 1997 WL 114397, *4 (Mar. 10, 1997) (A
divorce decree based on a settlement agreement reached by the parties is “effectively [a]
consent judgment[] * * *.”). We have explicitly held that “unless specifically preserving
its right to appeal, a party participating in a consent judgment will not be allowed to
appeal errors from that judgment.” Kerwin v. Kerwin, 6th Dist. Lucas No. L-04-1002,
2004-Ohio-4676, ¶ 8, citing Sanitary Commercial Servs., Inc. v. Shank, 57 Ohio St.3d
178, 181, 566 N.E.2d 1215 (1991); and Wells v. Warrick Martin & Co., 1 Ohio St. 3868.
(1853), syllabus. This is because “[t]he purpose of a consent judgment is to resolve a
dispute without further litigation, and so would be defeated or at least impaired by an
appeal. The presumption, therefore, is that the consent operates as a waiver of the right
to appeal.” (Internal quotation omitted.) Id., citing Tradesmen Internatl., Inc. v. Kahoe,
8th Dist. Cuyahoga No. 74420, 2000 WL 283081 (Mar. 16, 2000); and Assn. of
Community Orgs. for Reform Now v. Edgar, 99 F.3d 261, 262 (7th Cir.1996).
{¶ 14} In this case, on the second day of trial, Benjamin’s attorney informed the
court that the parties had “reached an agreement * * * on everything except spousal
support and legal fees.” In addition to the 90 minutes that the parties spent negotiating
before the trial began, Gina’s attorney conferred with Gina after asking the court for
“guidance” on the remaining triable issues (i.e., spousal support and attorney fees).
Following that conference, Gina’s attorney told the court that “[they]’re ready to
proceed.” At Gina’s attorney’s request, Benjamin’s attorney read the parties’ agreement
into the record. After she recited the agreement, Gina’s attorney “conferred with [his]
client [Gina],” and said that “what [Benjamin’s attorney] has recited is an accurate
statement of the settlement.” (Emphasis added.) In addition to Gina’s attorney agreeing
to the terms as recited by Benjamin’s attorney, Gina did not personally voice any
objections about the settlement or its terms (although she did interject to clarify terms at
least twice).
{¶ 15} As part of the settlement, the parties agreed that only Benjamin’s surgical
income should be considered for purposes of determining spousal support because
9.
Benjamin was giving Gina a cash payment equivalent to half of the value of his interest
in his rental property and his consulting business. The parties also believed that the issue
of financial misconduct was resolved by the settlement, as evidenced by (1) their
representations to the court that the only remaining issues were spousal support and
attorney fees, (2) the transcript of the second day of the divorce trial being devoid of any
reference to financial misconduct, (3) Benjamin’s attorney failing to question Benjamin
about the financial misconduct allegations during his direct testimony, and (4) Gina’s
attorney specifically withdrawing the exhibits related to financial misconduct after the
court noted that “a lot of” Gina’s exhibits from the first day of trial were “not terribly
relevant in consideration of the settlement that you’ve reached[.]”
{¶ 16} As discussed below, the proposed judgment entry that the trial court signed
and filed as the final divorce decree accurately represents the parties’ agreement, and
Gina does not allege any “irregularity or fraud in [the agreement’s] procurement.”
Sponseller at 399. Thus, because the divorce decree is a consent judgment that was
properly procured, Gina cannot appeal the portions of the judgment that she agreed to.
Id.; Schenk at *1; Kerwin at ¶ 8. Accordingly, Gina’s second and third assignments of
error are not well-taken.
C. The trial court properly approved the proposed
decree submitted by Benjamin’s attorney.
{¶ 17} In her first assignment of error, Gina argues that the trial court improperly
approved the proposed final decree of divorce prepared by Benjamin’s attorney, and that
10.
the proposed decree “contain[ed] major [e]rrors.” Although she contends that the trial
court violated its local rules by not giving her 14 days to object to the contents of the
proposed decree before the judge signed and filed it, Gina’s real complaint under this
assignment of error is that the final decree did not preserve her right to pursue Benjamin
for violations of the parties’ temporary support order. Benjamin responds that his
attorney complied with the local rule, the trial judge signed the final order after the
appropriate time had passed, and Gina’s attorney did not attempt to object to the
proposed decree until after the time for objecting had passed.
{¶ 18} Under Local Rule 4.05(B)(4) of the Court of Common Pleas of Wood
County, General Division, after an attorney who is ordered to prepare a judgment entry
submits the proposed entry to opposing counsel, opposing counsel can either sign the
entry or respond to preparing counsel with an entry containing proposed modifications.
If opposing counsel does not respond within 14 days, preparing counsel is required to
submit their proposed entry to the court with a certification statement indicating that
preparing counsel sent the proposed entry to opposing counsel, the date it was sent, the
manner in which it was sent, and that the proposed order “HAS NOT BEEN
RETURNED, REVISED NOR [sic] OBJECTED TO.” Local Rule 4.05(B)(5); see also
Local Rule 6.11(I) (Proposed entries in domestic relations cases “shall conform to Local
Rule 4.05 and shall contain the certification in Local Rule 4.05(B)(5) if the attorney who
prepared the entry has not received a response from the opposing attorney * * *.”). The
rule also requires opposing counsel who does not agree with preparing counsel’s
11.
proposed entry to “prepare and submit to the original preparing counsel an entry with
proposed modification * * *.” Local Rule 4.05(B)(4).
{¶ 19} Generally speaking, when the parties put the terms of their settlement on
the record in open court, the trial court is free to adopt a proposed entry that accurately
reflects the terms of the settlement, unless the record reflects some objection by the non-
drafting party. See, e.g., Johnson-Rome v. Rome, 2d Dist. Montgomery No. 27200, 2017-
Ohio-4099, ¶ 7; Benz v. Benz, 11th Dist. Geauga No. 2004-G-2589, 2005-Ohio-5870, ¶
14. This is because an in-court settlement is a binding contract between the parties that
neither party can repudiate unless they prove fraud, duress, overreaching, undue
influence, or a factual dispute about the terms of the agreement. Wade v. Wade, 6th Dist.
Fulton No. F-02-14, 2003-Ohio-686, ¶ 7, citing Walther v. Walther, 102 Ohio App.3d
378, 383, 657 N.E.2d 332 (1st Dist.1995); and Spercel v. Sterling Industries, Inc., 31
Ohio St.2d 36, 285 N.E.2d 324 (1972), paragraph one of the syllabus. Thus, it is not
error for a trial court to adopt a proposed entry that one party submits in compliance with
the court’s local rules when the other party remains silent or fails to comply with the local
rules. See Johnson-Rome at ¶ 8 (no error when opposing party failed to object to drafting
party’s proposed entry as required by the local rules); compare Bd. of Twp. Trustees of
Thorn Twp. v. Roberts, 5th Dist. Perry No. 02 CA 2, 2002-Ohio-5804, ¶ 15-17 (trial court
erred by adopting one party’s proposed entry before the expiration of the time specified
in the local rules for the opposing party to object).
12.
{¶ 20} Based on the record before us, there is nothing indicating that the trial court
or Benjamin’s attorney failed to comply with Local Rule 4.05(B). The parties entered
into a binding settlement of all issues except spousal support and attorney fees, which
neither party can repudiate without showing fraud, duress, overreaching, undue influence,
or a factual dispute about the terms of the agreement. Wade at ¶ 7. Gina does not argue
that any of those exceptions apply in this case.
{¶ 21} The certification on the entry that Benjamin’s attorney prepared (and the
trial court signed) shows that she sent the proposed entry to Gina’s attorney on March 22,
2022. Local Rule 4.05(B)(4) then put the burden on Gina’s attorney to either approve
and sign the proposed entry or submit a modified proposed entry to Benjamin’s attorney.
When Benjamin’s attorney did not receive a response from Gina’s attorney “within 14
days”—in this case, by April 5, 2022—she was required by Local Rule 4.05(B)(5) to
submit her proposed entry to the court with the certification that she had sent the entry to
Gina’s attorney on March 22, and that Gina’s attorney had not returned, revised, or
objected to the entry. Beyond that 14-day window for objections, Local Rule 4.05 does
not dictate when the trial court can or must sign a proposed entry. And the trial court
here chose to sign and file Benjamin’s proposed entry at the end of the day on April 5.
The record does not reflect that Gina alerted the trial court to her objections by, for
example, filing a motion to rescind the parties’ settlement agreement or seeking relief
from judgment under Civ.R. 60(B); in fact, the trial court’s docket shows that Gina did
13.
not file anything other than her notice of appeal and its related documents until more than
four months after the trial court entered the final divorce decree.2
{¶ 22} Moreover, assuming that the trial court erred by signing Benjamin’s
proposed entry, Gina cannot show that the trial court’s actions prejudiced her. The
parties entered into a binding in-court settlement of all issues except spousal support and
attorney fees. The terms of the parties’ divorce that Benjamin’s attorney included in the
proposed decree are the same as the terms that Benjamin and Gina agreed to on the
record before the second day of the trial began. And (with the exception of the clerical
error discussed under Gina’s eighth assignment of error) the entry also accurately reflects
the trial court’s findings on spousal support and attorney fees. A party cannot establish
prejudicial error when the trial court adopts a proposed entry that accurately reflects the
parties’ settlement agreement. Benz, 11th Dist. Geauga No. 2004-G-2589, 2005-Ohio-
5870, at ¶ 20.
{¶ 23} Gina’s real complaint under this assignment of error is that the trial court’s
final entry did not preserve her right to pursue Benjamin for violations of the parties’
temporary support order. However, unless a temporary order is reduced to a separate
judgment or specifically referred to in the final decree, all temporary orders merge into
the final decree of divorce and become moot. Row v. Row, 6th Dist. Lucas No. L-21-
2
Although we are not considering the non-record exhibits that the parties submitted with
their briefs in reaching our decision, we parenthetically note that Gina’s attorney did not
submit anything purporting to be an objection to the proposed entry to the trial court until
after the court was closed on April 5—i.e., after the time to object had fully passed.
14.
1231, 2022-Ohio-2525, ¶ 54, citing Dimmerling v. Dimmerling, 7th Dist. Noble No. 18
NO 0460, 2019-Ohio-2710, ¶ 140-141; Cotter v. Cotter, 9th Dist. Summit No. 25656,
2011-Ohio-5629, ¶ 10; and Colom v. Colom, 58 Ohio St.2d 245, 389 N.E.2d 856 (1979),
syllabus. A party’s right to enforce any temporary or interlocutory order that is not
reaffirmed by a separate judgment or incorporation into the final decree is extinguished
when the trial court issues the final decree. Id.{¶ 24} Here, there is nothing in the record showing that the trial court reduced an
obligation Benjamin had under the temporary order to a separate judgment, and there is
no mention of the temporary order in the final decree.3 The parties told the trial court on
the second day of the divorce trial that they had settled all issues except spousal support
and attorney fees, but the settlement agreement that Benjamin’s attorney read into the
record—and that Gina’s attorney agreed with—did not include any terms related to
Benjamin’s obligations under the temporary order. Because the final decree disposed of
all matters before the court, the temporary order merged into the final decree, rendering
any violations of the temporary order moot. Row at ¶ 54-55. Moreover, to the extent that
Gina agreed to forego prosecuting violations of the temporary order by entering into a
3
In July 2021, Gina filed two motions to hold Benjamin in contempt for violating the
temporary order. Although the record shows that the magistrate held a hearing in July
2021—apparently to address contempt motions filed by both parties—the transcript of
that hearing is not in the record, and neither the magistrate nor the trial court filed any
entries or orders related to the contempt motions. However, when the trial court fails to
expressly decide a pretrial motion at the conclusion of the case, we presume that the
motion is denied. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58,
¶ 13, citing State ex rel. V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198(1998). Therefore, we presume that the trial court denied Gina’s motions.
15.
settlement agreement and consent decree without reserving the right to appeal, she cannot
now object to the trial court’s judgment entry on that basis. Sponseller, 110 Ohio St. at
399, 144 N.E. 48; Kerwin, 6th Dist. Lucas No. L-04-1002, 2004-Ohio-4676, at ¶ 8.
{¶ 25} Because there is no evidence in the record showing that the trial court
violated the court’s local rules or otherwise improperly signed the proposed final entry,
the temporary order merged into the final decree, and Gina waived her right to appeal this
issue, we find that Gina’s first assignment of error is not well-taken.
D. The trial court properly awarded spousal support.
{¶ 26} Gina’s fourth, fifth, sixth, seventh, eighth, and ninth assignments of error
address issues related to the trial court’s award of spousal support. With the exception of
a clerical error in the support schedule, we find that the trial court did not abuse its
discretion in issuing the spousal support award.
1. Standard of review
{¶ 27} We review a trial court’s judgment awarding spousal support for abuse of
discretion. King v. King, 6th Dist. Erie No. E-17-072, 2019-Ohio-1561, ¶ 8, citing
Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990); and Bowen v. Bowen, 132
Ohio App.3d 616, 626, 725 N.E.2d 1165 (9th Dist.1999). Abuse of discretion means that
the trial court’s decision was unreasonable, arbitrary, or unconscionable. State ex rel.
Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996). An unreasonable
decision is one that lacks sound reasoning to support the decision. Hageman v. Bryan
City Schools, 10th Dist. Franklin No. 17AP-742, 2019-Ohio-223, ¶ 13, citing AAAA
16.
Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,
161, 553 N.E.2d 597 (1990). “An arbitrary decision is one that lacks adequate
determining principle and is not governed by any fixed rules or standard.” Id., citing
Porter, Wright, Morris & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. Franklin No.
08AP-69, 2008-Ohio-3567, ¶ 11. And an unconscionable decision is one “that affronts
the sense of justice, decency, or reasonableness.” Id.{¶ 28} Although a trial court has broad discretion in awarding spousal support, its
determination of whether spousal support is “appropriate and reasonable,” and the nature,
amount, duration, and terms of payment of spousal support is controlled by the factors in
R.C. 3105.18(C)(1). King at ¶ 8, citing Crites v. Crites, 6th Dist. Wood Nos. WD-04-034
and WD-04-042, 2004-Ohio-6162, ¶ 26-27; and Schultz v. Schultz, 110 Ohio App.3d 715,
724, 675 N.E.2d 55 (10th Dist.1996). A trial court is not required to articulate each R.C.
3105.18(C)(1) factor in its decision, but the court’s judgment entry must show that it
considered all the “relevant factors.” Id., citing Stockman v. Stockman, 6th Dist. Lucas
No. L-00-1053, 2000 WL 1838937, *3 (Dec. 15, 2000). The trial court’s judgment entry
must also “contain sufficient detail to enable a reviewing court to determine that the
spousal support award is ‘fair, equitable and in accordance with the law.’” Crites at ¶ 27,
quoting Kaechele v. Kaechele, 35 Ohio St.3d 93, 97, 518 N.E.2d 1197 (1988).
{¶ 29} Under R.C. 3105.18(C)(1), when determining whether awarding spousal
support is “appropriate and reasonable” and deciding the terms of any award, the trial
court is required to consider:
17.
(a) The income of the parties, from all sources, including, but not
limited to, income derived from property divided, disbursed, or distributed
[as part of the divorce proceedings] under section 3105.171 of the Revised
Code;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional conditions of
the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party, because
that party will be custodian of a minor child of the marriage, to seek
employment outside the home;
(g) The standard of living of the parties established during the
marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but not
limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training, or
earning ability of the other party, including, but not limited to, any party’s
contribution to the acquisition of a professional degree of the other party;
18.
(k) The time and expense necessary for the spouse who is seeking
spousal support to acquire education, training, or job experience so that the
spouse will be qualified to obtain appropriate employment, provided the
education, training, or job experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of spousal
support;
(m) The lost income production capacity of either party that resulted
from that party’s marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant and
equitable.
{¶ 30} The trial court cannot consider any single R.C. 3105.18(C) factor in
isolation. Kaechele at paragraph one of the syllabus. Rather, the court must consider all
of the statutory factors with the goal of reaching an equitable result because a spousal
support award cannot be determined by resorting to a mathematical formula. Pearson v.
Pearson, 6th Dist. Wood No. WD-21-066, 2022-Ohio-642, ¶ 12, citing Kaechele at 96.
{¶ 31} With this framework in mind, we turn to Gina’s assignments of error.
19.
2. The trial court considered Gina’s contribution to Benjamin’s residency training.
{¶ 32} In her fourth assignment of error, Gina contends that the trial court abused
its discretion under R.C. 3105.18(C)(1) by not considering the contributions she made to
Benjamin during his surgical residencies. Benjamin responds that the trial court correctly
concluded that Gina did not contribute to him completing his residency training.
{¶ 33} We find that the trial court acted within its discretion when it determined
under R.C. 3105.18(C)(1)(j) that “[t]here was no evidence that Gina’s earnings * * *
subsidized Benjamin’s training to become an orthopedic surgeon.” Courts generally
require more evidence of support than simply paying bills while the other spouse pursues
education or training. See, e.g., Budd v. Budd, 9th Dist. Summit No. 25469, 2011-Ohio-
565 (husband contributed to wife’s education by helping with childcare, paying her
tuition and book fees, and transporting her to and from classes); Addington v. Addington,
4th Dist. Scioto No. 04CA2951, 2004-Ohio-6931 (parties sold their business and home
and moved so that husband could go to medical school, and wife was sole wage-earner
while husband was in school); and compare, e.g., Nieman v. Nieman, 3d Dist. Allen No.
1-16-22, 2016-Ohio-7169 (affirming trial court’s finding that neither spouse contributed
to the other’s education because both had finished school and husband was preparing to
start his residency when they married); Murphy v. Murphy, 2d Dist. Montgomery No.
15693, 1996 WL 629522, *4 (Nov. 1, 1996) (Although husband attended medical school
and received his medical degree during the marriage, there was no evidence in the record
20.
that “one spouse has forgone educational or employment opportunities in order to provide
financial support to the other spouse * * *.”).
{¶ 34} Gina testified that she and Benjamin married after Benjamin finished
medical school, while he was in his first residency. Gina had bachelor’s and master’s
degrees and was a licensed social worker when they married. Although Gina worked
full-time and “[p]aid bills” during the seven years that Benjamin was completing his
surgical residencies, she specifically said that she “didn’t pay for [Benjamin’s] education,
[she] just paid the bills.” There was no other testimony regarding Gina’s contribution to
Benjamin’s education and training, and Gina did not claim that Benjamin’s residencies
were unpaid or that he made no contributions to the household during that time. Further,
rather than failing to consider any contribution that Gina made to Benjamin’s training and
education, the trial court concluded (based on the scant testimony that Gina gave on the
issue) that Gina failed to show that her employment and income for the first seven years
of the parties’ marriage led to Benjamin becoming an orthopedic surgeon. It was not
unreasonable, arbitrary, or unconscionable for the trial court to do so. Therefore, Gina’s
fourth assignment of error is not well-taken.
3. The trial court’s spousal support award was reasonable and appropriate.
{¶ 35} In her fifth, sixth, seventh, eighth, and ninth assignments of error, Gina
argues that the trial court abused its discretion by (1) only awarding her $13,000 per
month in support, (2) reducing her monthly support award over time, (3) not requiring
Benjamin to pay for her insurance, (4) not ordering Benjamin to pay support through
21.
bank withholding, and (5) making a clerical error in the support schedule included in the
final divorce decree.
{¶ 36} Benjamin responds that (1) the trial court considered all of the factors in
R.C. 3105.18(C)(1) in fashioning the support order, and it acted within its discretion in
doing so; (2) Gina never asked for Benjamin to be responsible for her insurance after the
divorce, and the support award should be sufficient to allow Gina to obtain her own
insurance; (3) the trial court had the discretion to allow Benjamin to make support
payments directly to Gina; and (4) Gina should have sought to have the clerical error
modified by the trial court under Civ.R. 60(A) rather than assigning it as error on appeal.
a. The amount of the spousal support award is reasonable and appropriate.
{¶ 37} In her seventh assignment of error, Gina argues that the trial court acted
unreasonably when it awarded her only $13,000 per month in spousal support—far short
of the $33,000 per month that she requested. She contends that she presented the trial
court with “extensive and persuasive Documentation of [her] Monthly Expenses” that
justified a spousal support award of $33,000 per month, and argues $13,000 per month is
inadequate “[c]onsidering the Standard of Living of the parties, and the Abandonment of
[Gina] by [Benjamin] * * *.” Benjamin responds that the trial court “specifically
evaluated each and every factor under R.C. 3105.18(C)(1) in making the spousal support
award, [and] provid[ed] ample reasoning and explanation of the specifics of each factor
in this case[,]” which, he contends, shows that the trial court’s spousal support award was
not erroneous or unreasonable.
22.
{¶ 38} When an appellate court reviews a trial court’s spousal support award, it is
important to remember that “[a] trial court must not base its determination [under R.C.
3105.18(C)] upon any one factor taken in isolation. * * * ‘[A]ll of the statutory factors
must be considered, with the goal of reaching an equitable result.’” (Second brackets
sic.) Galloway v. Galloway, 6th Dist. Erie No. E-21-043, 2023-Ohio-29, ¶ 51, quoting
Pearson, 6th Dist. Wood No. WD-21-066, 2022-Ohio-642, at ¶ 12; and citing Organ v.
Organ, 2014-Ohio-3474, 17 N.E.3d 1192, ¶ 15 (9th Dist.); Kaechele, 35 Ohio St.3d 93,
518 N.E.2d 1197, at paragraph one of the syllabus; and King, 6th Dist. Erie No. E-17-
072, 2019-Ohio-1561, at ¶ 8-9.
{¶ 39} Gina’s argument on appeal relies solely on the parties’ standard of living
during the marriage.4 However, neither party is guaranteed the same standard of living
post-divorce, and the trial court is not required to apply an equal standard of living to the
parties; all that the trial court is required to do is consider all of the factors in R.C.
3105.18(C)(1) and fashion an award that is appropriate and reasonable. Dunham v.
Dunham, 171 Ohio App.3d 147, 2007-Ohio-1167, 870 N.E.2d 168, ¶ 76-77 (10th Dist.).
{¶ 40} In its decision, the trial court made the following findings relative to the
factors in R.C. 3105.18(C)(1):
4
Although Gina also refers to Benjamin’s “abandonment” of her, the trial court expressly
determined that spousal support’s “purpose is not to punish a spouse[,]” and that
“Benjamin’s infidelity * * * was not a relevant and equitable factor to be considered”
under the “[a]ny other factor” provision of R.C. 3105.18(C)(1)(n). This finding was not
an abuse of the trial court’s discretion.
23.
• (C)(1)(a) – The income of the parties, from all sources, including, but not
limited to, income derived from property divided, disbursed, or distributed
pursuant to the divorce.
The trial court determined that Gina would have $430,000 in income
from the division of marital property and would be “relatively debt free.”
Benjamin would have his salary from the surgical practice and income from
the rental property, which was a gross amount of approximately $874,000 in
2021. The court said that it would “primarily consider Benjamin’s earnings
ability as an orthopedic surgeon” for spousal support purposes. Benjamin
planned to incur around $500,000 in unsecured debt to fulfill his settlement
agreement with Gina. The parties agreed that their income from the marital
property was equal.
• (C)(1)(b) – The relative earning abilities of the parties.
The court found that Benjamin, an orthopedic surgeon, had gross
income that averaged nearly $800,000 over the three years before the divorce
trial, but that his “take home pay” from his surgical practice was closer to
$490,000. Benjamin’s contract with his current employer was set to expire in
April 2022, but would automatically extend for 1-year terms unless either party
terminated it. Benjamin’s employer was affiliated with St. Luke’s Hospital,
which had recently been acquired by a new owner, but any impact that might
have on Benjamin’s income was “purely speculative.”
24.
The court also found that Gina has two master’s degrees and can get her
Ph.D. in social work from the University of Michigan after four years of study.
She worked full-time in the social work field from 1990 to 1997, but had not
worked in the last 25 years. Neither party presented evidence regarding the
potential earnings of someone with either a master’s degree or a Ph.D. in social
work.
• (C)(1)(c) – The ages and the physical, mental, and emotional conditions of the
parties.
Both parties were born in 1963. There was no evidence regarding
Gina’s physical health, but she had suffered anxiety and depression when she
and Benjamin separated. Her mental health was improving. There was no
evidence regarding Benjamin’s physical or mental health.
• (C)(1)(d) – The retirement benefits of the parties.
Each party would have approximately $500,000 in a retirement fund.
• (C)(1)(e) – The duration of the marriage.
The parties had been married for over 31 years at the time of the trial.
• (C)(1)(f) – The extent to which it would be inappropriate for a party, because
that party will be custodian of a minor child of the marriage, to seek
employment outside the home.
This factor is inapplicable.
25.
• (C)(1)(g) – The standard of living of the parties established during the
marriage.
The trial court described the parties’ standard of living as “extravagant.”
They lived in a large home in Perrysburg, and recently sold their second home
in Florida for $875,000. Both parties had several cars, including Porches.
Gina testified that their monthly expenses exceeded $33,000.
• (C)(1)(h) – The relative extent of education of the parties.
The court reiterated that Gina has two master’s degrees, and Benjamin
has a medical degree and is an orthopedic surgeon.
• (C)(1)(i) – The relative assets and liabilities of the parties, including but not
limited to any court-ordered payments by the parties.
The court found that the parties divided their marital assets equitably,
and neither party had any separate property.
• (C)(1)(j) – The contribution of each party to the education, training, or earning
ability of the other party, including, but not limited to, any party’s contribution
to the acquisition of a professional degree of the other party.
Gina and Benjamin married after Benjamin finished medical school.
Although Gina worked full-time for the first seven years of their marriage, the
court found that “[t]here was no evidence that Gina’s earnings from 1990 to
1997 subsidized Benjamin’s training to become an orthopedic surgeon.”
26.
• (C)(1)(k) – The time and expense necessary for the spouse who is seeking
spousal support to acquire education, training, or job experience so that the
spouse will be qualified to obtain appropriate employment, provided the
education, training, or job experience, and employment is, in fact, sought.
The court reiterated that Gina has two master’s degrees, and had
testified that she could obtain her Ph.D. from the University of Michigan in
four years.
• (C)(1)(l) – The tax consequences, for each party, of an award of spousal
support.
The parties did not present evidence on this factor.
• (C)(1)(m) – The lost income production capacity of either party that resulted
from that party’s marital responsibilities.
Gina left the workforce in 1997 when the parties’ youngest child was
born, and had not returned to work after the children were emancipated.
• (C)(1)(n) – Any other factor that the court expressly finds to be relevant and
equitable.
Although Gina sought to have Benjamin’s “infidelity” recognized under
this subsection, the court “found that was not a relevant and equitable factor to
be considered.”
{¶ 41} As demonstrated by the trial court’s spousal support decision, the court
took into account the parties’ “extravagant standard of living” during the marriage—
27.
along with every other factor in R.C. 3105.18(C)(1)—which is all that it was required to
do. The trial court also had before it the temporary support order, in which the magistrate
found—based on Gina’s testimony—that Gina and Benjamin had been living above their
means while they were married. And the court took into account the parties’ incomes,
earning potential, relative financial positions following the division of marital property,
health, ages, and Gina’s need and desire for further education. In light of these facts, and
when all of the facts and factors are considered together, there is no evidence that the trial
court acted unreasonably, arbitrarily, or unconscionably in setting the amount of spousal
support. Accordingly, Gina’s seventh assignment of error is not well-taken.
b. The trial court properly reduced Gina’s spousal support over time.
{¶ 42} In her sixth assignment of error, Gina argues that the trial court abused its
discretion by reducing the amount of spousal support over time. She contends that it was
unreasonable for the trial court to reduce the spousal support award because the award
does not cover her monthly expenses, it is “questionable” that she can retrain for gainful
employment “[a]t her age,” retraining would be expensive, and there is no guarantee that
she could find “employment or significant pay, after being out of the workforce for 25
years * * *.” Benjamin again argues that the trial court considered all of the statutory
factors in fashioning the spousal support award, so its decision to reduce the award over
time was not an abuse of discretion.
{¶ 43} The crux of Gina’s argument under this assignment of error is that the trial
court did not give her enough spousal support to meet her needs, and further reducing that
28.
amount is unreasonable. But a spousal support award is not based on need; it is based on
what is reasonable and appropriate in light of the factors in R.C. 3105.18(C)(1). Basista
v. Basista, 6th Dist. Wood No. WD-14-076, 2016-Ohio-146, ¶ 28, citing Organ, 2014-
Ohio-3474, 17 N.E.3d 1192, at ¶ 14; and Heslep v. Heslep, 7th Dist. Monroe No. 825,
2000 WL 818909, *4 (June 14, 2000). And the trial court explained that it was awarding
Gina $13,000 per month for the first four years to give her time to earn her Ph.D., after
which she “will have the ability to earn income.” Then, Gina will receive $10,000 per
month for ten years, at which time Benjamin will be 72 years old and “could reasonably
reduce his workload or retire.” From that point on, Gina will receive $6,000 per month
indefinitely. The court also retained jurisdiction to modify the amount and duration of
the spousal support award, so either party can seek to change the amount of the award if
their circumstances change.
{¶ 44} The trial court’s broad discretion over spousal support awards encompasses
the ability to craft an award that changes over time based on the anticipated financial
situations of the parties. Arthur v. Arthur, 130 Ohio App.3d 398, 409-410, 720 N.E.2d
176 (5th Dist.1998). The trial court’s explanation for structuring the support the way it
did shows that the court considered the parties’ anticipated financial situations over the
coming years and structured a reasonable and appropriate award for those anticipated
circumstances. The court also retained jurisdiction over spousal support so that either
party can seek a modification, if necessary. This was not unreasonable, arbitrary, or
unconscionable. Gina’s sixth assignment of error is not well-taken.
29.
c. The trial court did not abuse its discretion by failing
to order Benjamin to pay Gina’s insurance premiums.
{¶ 45} In her fifth assignment of error, Gina argues (without citing any law) that
she testified to the cost of her health insurance and “[c]onsidering [Benjamin] has an
Annual Gross Income in excess of $900,000, it is unreasonable, and an Error for the
Court not to require him to pay for [Gina’s] Health, Dental, and Optical Insurance.”
Benjamin responds that Gina did not ask the court to order Benjamin to pay for her
insurance, the spousal support award should cover the costs of her insurance, and because
the final decree does not address insurance, there is a presumption that each party is
responsible for their own insurance costs after a divorce.
{¶ 46} Although a person who carries health insurance that covers their spouse is
prohibited from terminating the spouse’s health insurance coverage while a divorce is
pending, R.C. 3105.71(A), nothing in the statute requires the person to maintain the
spouse’s coverage after the divorce is finalized. Whether to require someone to maintain
health insurance for their spouse after the divorce is “firmly within the discretionary
power of the domestic relations court.” Roskwitalski v. Roskwitalski, 5th Dist. Licking
No. 94 CA 103, 1995 WL 498124, *3 (Aug. 10, 1995). “Once the court grants a divorce,
we must assume in the absence of intent to the contrary, that each party becomes
responsible for carrying their own health insurance, because the divorce decree
essentially permits the parties to go their own way, with all the concomitant
responsibilities that attach to those who are no longer married.” Ianiro v. Pastis, 8th Dist.
30.
Cuyahoga No. 83368, 2004-Ohio-2987, ¶ 26. In other words, unless the divorce decree
specifically orders one party to carry the other’s insurance, the parties are each
responsible for their own insurance after they are divorced.
{¶ 47} In this case, the trial court had before it Gina’s monthly expenses for health
insurance premiums, and we presume that the court considered those premiums along
with the rest of Gina’s living expenses when it determined how much spousal support to
award. Thus, we also presume that the court intended for Gina to pay for her insurance
out of the spousal support award. The closest Gina came to asking the court to order
Benjamin to pay for her insurance was when she said on direct that “I think that he
should have to give me support for life including health insurance * * *.” But Gina’s
attorney never asked the court in any filings or during the trial to order that Benjamin pay
for Gina’s insurance, and the parties did not include insurance payments in their
settlement agreement. Under these circumstances, we do not believe that the trial court
abused its discretion by failing to order Benjamin to pay for Gina’s health insurance.
Gina’s fifth assignment of error is not well-taken.
d. The court properly allowed Benjamin to make direct support payments.
{¶ 48} In her ninth assignment of error, Gina argues that the trial court should
have ordered Benjamin to make his support payments through bank withholding because
Benjamin violated the temporary support order and owes arrearages under the temporary
order, and the court “did not resolve the issue of non-compliance by [Benjamin] with the
Temporary Support Order.” Benjamin responds that the trial court was permitted to order
31.
direct payments, and Benjamin was never found in contempt of any court orders, so the
trial court did not abuse its discretion by ordering direct payments.
{¶ 49} Direct payments of support are authorized by R.C. 3121.441(A), which
provides:
Notwithstanding the provisions * * * of the Revised Code providing
for the office of child support in the department of job and family services
to collect, withhold, or deduct spousal support, when a court * * * issues or
modifies an order requiring an obligor to pay spousal support * * *, the
court may permit the obligor to make the spousal support payments directly
to the obligee instead of to the office if the obligee and the obligor have no
minor children born as a result of their marriage and the obligee has not
assigned the spousal support amounts to the department * * *.
Whether to permit an obligor to make direct spousal support payments “is clearly
discretionary.” Dingey v. Dingey, 5th Dist. Muskingum No. CT2020-0006, 2020-Ohio-
5340, ¶ 38; Allen v. Allen, 2022-Ohio-3198, 196 N.E.3d 368, ¶ 84 (11th Dist.). And there
is no requirement that the court “conduct an analysis of an obligor’s possible failure to
comply with a direct payment order” before deciding whether to allow direct payments.
Dingey at ¶ 38.
{¶ 50} Gina’s only argument under this assignment of error is that Benjamin failed
to comply with the temporary order and still owes arrearages under the temporary order.
As we have already discussed, any issues that Gina had with the temporary orders are
32.
now moot because they were not separately reduced to judgment or preserved in the final
decree. Row, 6th Dist. Lucas No. L-21-1231, 2022-Ohio-2525, at ¶ 54. And nothing in
the record indicates that the trial court acted unreasonably, arbitrarily, or unconscionably
by allowing Benjamin to make direct support payments. Therefore, Gina’s ninth
assignment of error is not well-taken.
e. The trial court made a clerical error in the spousal support schedule.
{¶ 51} In her final assignment of error related to spousal support, Gina argues that
the trial court made an error in the support schedule it included in the final divorce
decree. She contends that the trial court has the year when her support award reduces to
$6,000 per month wrong; the court listed 2032 as the date of the change, which is ten
years after the support order went into effect, not 14 years later, as the court ordered
earlier in its decision. Benjamin argues that Gina should have filed a motion to correct
the error in the trial court, but because she did not, we should overrule this assignment of
error.
{¶ 52} Although a trial court has the authority under Civ.R. 60(A) to correct a
clerical mistake—i.e., “a mistake or omission, mechanical in nature and apparent on the
record which does not involve a legal decision or judgment[,]” State ex rel. Litty v.
Leskovyansky, 77 Ohio St.3d 97, 100, 671 N.E.2d 236 (1996)—this is not the exclusive
remedy for clerical errors. Nothing in Civ.R. 60(A) deprives an appellate court of its
ability to “[r]eview and affirm, modify, or reverse the judgment or final order
appealed[.]” App.R. 12(A)(1)(a). In fact, “App.R. 12(A)(1)(a) and 12(B) empower this
33.
court to modify judgments as a matter of law.” Nastasi v. Nastasi, 11th Dist. Trumbull
No. 94-T-5023, 1994 WL 721611, *1 (Dec. 16, 1994). On that basis, we find Benjamin’s
argument that Gina missed her opportunity to correct the clerical error in the final decree
unavailing.
{¶ 53} Turning to the error in the decree, we agree with Gina that the trial court
erred when it entered the date on which Gina’s spousal support decreases to $6,000. In
its decision following the divorce hearing, the trial court clearly stated in its analysis that
it had decided to award Gina $13,000 per month for four years, followed by $10,000 per
month for ten years, and that the final reduction to $6,000 per month was to happen after
14 years, when Benjamin is 72 years old. However, in its orders, the court wrote:
IT IS ORDERED that on May 1, 2022 and on the first day of each
month for the following 48 months defendant Benjamin Salpietro shall pay
to plaintiff Gina Salpietro $13,000 as spousal support; that on May 1, 2026
and on the first day of each month for the following 120 months defendant
Benjamin Salpietro shall pay to plaintiff Gina Salpietro $10,000 as spousal
support; and that on May 1, 2032 and on the first day every ensuing month
thereafter defendant Benjamin Salpietro shall pay to plaintiff Gina Salpietro
$6,000 as spousal support.
(Emphasis added.) Rather than reducing the support order to $6,000 after 14 years, the
court’s order reduced the award to $6,000 after only 10 years. The error was carried over
into the final divorce decree.
34.
{¶ 54} It is clear from the record that the trial court intended for Gina to receive
spousal support of no less than $10,000 for 14 years—i.e., until May 1, 2036. Because
the court’s spousal support decision and final divorce decree contain a typographical
error, we hereby modify the spousal support award in the final decree to reflect the trial
court’s decision. The spousal support order in the final decree, as modified by this
decision, should read:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
pursuant to Judge Kelsey’s decision that on May 1, 2022, and on the first
day of each month for the following 48 months, Husband shall pay to Wife
$13,000.00 as spousal support; that on May l, 2026, and on the first day of
each month for the following 120 months, Husband shall pay to Wife
$10,000.00 as spousal support; and that on May 1, 2036, and on the first
day of every ensuing month thereafter, Husband shall pay to Wife
$6,000.00 as spousal support.
(Modifications bolded and underlined.)
{¶ 55} Gina’s eighth assignment of error is well-taken.
4. The trial court’s fee award was fair and equitable.
{¶ 56} In her tenth and final assignment of error, Gina argues that the trial court’s
attorney fees award was inadequate because the court only awarded her $35,000, rather
than the $65,000 that she requested. She claims that the award was unreasonable because
she “has not worked in 25 years and is in complete economic reliance upon [Benjamin’s]
35.
income.” She also contends that her attorney’s bill “shows the major amount of work
necessary to prepare this case for Trial, and the lengthy Exhibits, including assembling all
of the expenses of the parties to establish their Standard of Living.” Benjamin responds
that the trial court considered all of the statutory factors related to an attorney fee award,
and the award was appropriate in light of Gina’s and her attorney’s litigation tactics that
added delay and expense to the proceedings.
{¶ 57} In divorce cases, an award of attorney fees is controlled by R.C.
3105.73(A). Under the statue, the trial court “may award all or part of reasonable
attorney’s fees and litigation expenses to either party if the court finds the award
equitable.” Before awarding fees, the trial court may consider (1) the parties’ marital
assets and income, (2) any temporary spousal support ordered, (3) the parties’ conduct,
and (4) “any other relevant factors the court deems appropriate.” Id. “An award of
attorney fees must be fair, equitable, and serve the ends of justice.” Steinle v. Steinle,
2018-Ohio-3985, 120 N.E.3d 478, ¶ 41 (6th Dist.), citing Garritano v. Pacella, 6th Dist.
Lucas No. L-07-1171, 2009-Ohio-2928, ¶ 101; and Bowen, 132 Ohio App.3d at 642, 725
N.E.2d 1165. We review a trial court’s award of fees for an abuse of discretion. Row,
6th Dist. Lucas No. L-21-1231, 2022-Ohio-2525, at ¶ 58, citing Kim v. Kim, 2020-Ohio-
22, 150 N.E.3d 1229, ¶ 47 (9th Dist.).
{¶ 58} In determining the issue of attorney fees, the trial court explicitly
considered the factors in R.C. 3105.73(A). The court noted:
36.
that Gina unnecessarily added [Benjamin’s businesses] as third party
defendants; that she objected unnecessarily to the court’s standard
temporary restraining order; that she sought, without much basis in law, to
have many of Benjamin’s expenditures characterized as financial
misconduct, R.C. 3105.171(E)(4); and that she sought, without much basis
in law, to argue that Benjamin should be punished through additional
spousal support awards for his “adulterous” conduct prior to the divorce.
The court also noted that Benjamin had already been ordered to pay $10,000 of Gina’s
legal fees. Based on this information, the trial court ordered Benjamin to pay an
additional $25,000 of Gina’s legal fees, for a total of $35,000.
{¶ 59} Our review of the record shows that the trial court did not abuse its
discretion in awarding attorney fees. The court considered the statutory factors and
recognized that Gina and her attorney were responsible for some of the fees because they
“unnecessarily” added parties and filed objections and pursued dubious legal strategies
that were “without much basis in law * * *.” Gina’s trial testimony also revealed that she
had paid her attorney approximately $60,000 by the time of trial, some of which was paid
out of marital funds that the court’s temporary support order earmarked for other joint
expenses. See Baum v. Perry-Baum, 6th Dist. Wood No. WD-18-085, 2019-Ohio-3923,
¶ 31-32 (finding that the trial court did not abuse its discretion in awarding attorney fees
to wife when, among other things, wife was responsible for some of the delay in the case
and paid her attorneys from marital funds).
37.
{¶ 60} Because the trial court’s fee award was fair and equitable, and the court did
not abuse its discretion in arriving at the award, we find that Gina’s tenth assignment of
error is not well-taken.
III. Conclusion
{¶ 61} Because the trial court properly signed the proposed judgment entry and
did not abuse its discretion in awarding spousal support or attorney fees, the April 5,
2022 judgment of the Wood County Court of Common Pleas, Domestic Relations
Division, is affirmed with the modification of “May 1, 2032” to “May 1, 2036” in the
spousal support schedule. Gina is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowsi, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
38.