A.M. v. J.M.

• Court: Ohio Court of Appeals
• Decided: July 2, 2026
• Docket: 114462; 114488
• Status: Published

Opinion

[Cite as A.M. v. J.M., 2026-Ohio-2532.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

A.M., :

Plaintiff-Appellant/ : Cross-Appellee, Nos. 114462 and 114488 v. :

J.M., :

Defendant-Appellee/ : Cross-Appellant.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 2, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-20-382494

Appearances:

McCarthy, Lebit, Crystal & Liffman, Co., LPA, Robert T. Glickman, and Jenna C. Sholk, for appellant/cross- appellee.

Stafford Law Co., L.P.A., and Nicole A. Cruz, for appellee/cross-appellant.

SCOT STEVENSON, J.:

Plaintiff-Appellant/Cross-Appellee, A.M. (“Husband”), and

Defendant-Appellee/Cross-Appellant, J.M. (“Wife”) appeal from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division. For the

reasons set forth below, this Court affirms.

I. Husband and Wife were married on August 8, 2015, and two children

were born as issue of the marriage. Husband filed a complaint for divorce in

September 2020. In his complaint, he requested that the court determine the

enforceability of the parties’ antenuptial agreement (“Agreement”). Husband

alleged that the terms of the Agreement were vague and nonsensical and as a result

there may not have been a meeting of the minds necessary to form a contract.

Husband reversed course and subsequently amended his complaint to request a

determination that the Agreement is actually valid and enforceable.

Wife answered and counterclaimed for divorce. She asserted in her

counterclaim that the Agreement was valid but requested that it be reformed to

correct a scrivener’s error to reflect the original intent of the parties at the time of

execution regarding the division of property. She also alleged that the provision in

the Agreement regarding the parties’ waiver of spousal support was unconscionable

and invalid as to her and requested an award of spousal support.

Temporary support orders were issued by agreed entry in January

2021 wherein Husband was ordered to pay the expenses for the residence, certain

of Wife’s personal and health care expenses, and the children’s expenses for school,

day care, health care, and activities. In addition, Husband agreed to pay Wife directly $5,755 per month for her living expenses. The parties also agreed to the

appointment of Mr. Edward Blaugrund as the joint financial expert.

The matter proceeded to trial over the course of 18 days beginning in

January 2024 and concluding in late April 2024. The parties presented numerous

witnesses and exhibits and submitted their closing arguments and requests of the

court in writing. The court issued its final judgment entry on October 9, 2024, that

granted the parties a divorce and made findings and conclusions regarding

Husband’s temporary support arrearages, the Agreement, the division of property,

spousal support, child support, the children’s health care, Wife’s contempt motions,

and Wife’s request for attorney fees.

Husband timely appealed and asserts eight assignments of error for

our review. Wife cross-appealed and asserts two assignments of error for our

review. This Court consolidated the appeals for purposes of briefing, hearing, and

disposition. Husband’s assignments of error will be addressed out of order for ease

of analysis.

II. Husband’s Appeal ASSIGNMENT OF ERROR NO. 1: THE TRIAL COURT ERRED WHEN IT FOUND THAT THERE WAS A TEMPORARY SUPPORT ARREARAGE.

The trial court found that Husband failed to pay $3,918.58 that was

owed to Cleveland Hearing and Speech Center for the parties’ daughter’s treatment

for a traumatic brain injury, and $9,989 in dental bills for the family for a total

expenses arrearage under the temporary orders of $13,808.58. As for Husband’s monthly support obligation of $5,755, the court found that it was paid by Husband’s

father, R.M., and that R.M. testified that Husband directed him to withhold funds

when there was a visitation dispute between Husband and Wife. Based on R.M.’s

testimony, the court found that a total of $15,000 was withheld from Wife’s monthly

support, and therefore, Husband was in arrears under the temporary orders in the

total amount of $28,808.58 ($13,808.58 in expenses + $15,000 in monthly support)

as of April 24, 2024.

Husband argues that there is no temporary support arrearage

because the monthly cash support was eventually reimbursed to Wife and the

medical and dental bills were never presented to Husband in advance of trial.

Husband also argues that the court abused its discretion by ordering him to pay the

entire arrearage within 30 days of the judgment entry of divorce because it did not

take into consideration his monthly income of $13,500, other personal expenses, the

lack of evidence of a savings account, and his need to rely on loans from R.M. to

maintain his obligations to Wife. Husband further argues that the trial court erred

by failing to hear his motion to modify the temporary support, and that if it had done

so and modified the support order, the modification would have related back to

March 23, 2023, thereby reducing his arrearage.

This Court reviews a trial court’s decision concerning a finding of civil

contempt for an abuse of discretion. Perkins v. Gorski, 2013-Ohio-265, ¶ 9 (8th

Dist.). “The term ‘abuse of discretion’ connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When

applying an abuse of discretion standard, a reviewing court is precluded from

substituting its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993). Although Blakemore is often cited as the general

standard for reviewing discretionary decisions, the Ohio Supreme Court has

provided additional guidance about the nature of an abuse of discretion:

Stated differently, an abuse of discretion involves more than a difference in opinion: “‘the term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations.’” State v. Jenkins, 15 Ohio St.3d 164, 222 [] (1984), quoting Spalding v. Spalding, 355 Mich. 382, 384 [] (1959). For a court of appeals to reach an abuse-of-discretion determination, the trial court's judgment must be so profoundly and wholly violative of fact and reason that “‘it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’” Id., quoting Spalding at 384-385 [].

State v. Weaver, 2022-Ohio-4371, ¶ 24.

Our review of the record reveals that Husband did not raise any of the

arguments he makes under this assignment of error in the trial court. Even though

Wife’s multiple motions for contempt regarding Husband’s temporary support

arrearages were before the court for determination at trial and Wife presented

evidence on the issue, Husband’s closing trial brief does not contain any argument

or request regarding his alleged temporary support arrearages. He did not challenge

the fact of his temporary support arrearages, nor the amount Wife alleged that he

was in arrears. Therefore, it is being raised by Husband for the first time on appeal.

Accordingly, due to Husband’s failure to raise these arguments in the trial court and failure to argue plain error, we need not consider them. State v. Tate, 2022-Ohio-

4745, ¶ 19-20 (8th Dist.).

Even if we could reach the merits of Husband’s arguments, the record

does not support his arguments. In his appellate brief, Husband states regarding

the monthly support payments that they “were made by [Husband] or [Husband’s

father R.M.] and are evidenced by [Husband’s] testimony, [R.M.’s] testimony, and

the bank records in evidence. Plaintiff’s Exhibit 56.” Plaintiff’s Exhibit 56 is a

lengthy document containing R.M.’s bank statements from June 2021 through July

2023. Husband does not direct this Court to any specific place within Plaintiff’s

Exhibit 56 or in his or R.M.’s testimony that reflects the alleged payments, nor can

this Court locate one. As this Court has previously stated, “[i]t is not the duty of this

court to sort through the record to root out arguments and evidence in support of an

appellant's assignment of error.” Hausser & Taylor, LLP v. Accelerated Sys.

Integration, Inc., 2005-Ohio-1017, ¶ 10 (8th Dist).

Furthermore, the record reflects that the issue of the dental bill was

addressed by the magistrate in January 2024. Therefore, Husband had notice of it

prior to trial. As for the Cleveland Speech and Hearing bill, the transcript reference

provided by Husband to support his allegation that the bill was not presented until

trial refers to the information about the child’s specific diagnosis, not the amount of

the bill. Based on the foregoing, Husband has failed to meet his burden on

appeal regarding the issue of his temporary support arrearage. His first assignment

of error is overruled.

ASSIGNMENT OF ERROR NO. 2: THE TRIAL COURT ERRED WHEN IT REFORMED THE ANTENUPTIAL AGREEMENT.

At issue under this assignment of error is the language in Section

13(b) of the Agreement which reads as follows in relevant part:

Notwithstanding anything in this Agreement to the contrary, the parties agree that upon the termination event, [Wife] shall receive from [Husband] Assets at [Husband’s] death, the applicable sum as follows:

...

(2) If married at least five (5) years but less than ten (10) years: THREE MILLION DOLLARS ($3,000,000.00), plus ten percent (10%) of the value of [Husband’s] Premarital Net Assets, plus twenty percent (20%) of the value of [Husband’s] Post Marital Net Assets, but such total amount shall be not be (sic) less than FIVE MILLION DOLLARS ($5,000,000.00)[.]

(Emphasis added.) The “termination event” was defined in Section 13(a) of the

Agreement as “divorce, dissolution or legal separation[.]”

At trial, Husband’s position was that the terms “at [Husband’s] death”

were intentional and unambiguous, and that the parties agreed that any settlement

to Wife would not be paid until Husband’s death rather than at the termination

event, which in this case is the parties’ divorce. Wife’s position was that this

language was a clear drafting/scrivener’s error resulting in the absurd outcome that

her property settlement in the divorce would not be paid until after Husband’s death, meaning that she would be expected to wait potentially decades to be paid as

Husband is in his thirties.

The court found that in entering into the Agreement, both parties

were represented by counsel who exchanged multiple emails over the course of a

week when negotiating, drafting, and approving the Agreement, and that Husband’s

attorney was the drafter. In its final judgment entry, the court outlined both

counsel’s testimony at length and the details of their email exchanges. The court

found that the Agreement was as set forth in an email to Wife’s counsel from

Husband’s counsel on July 31, 2015, which expressly stated that the terms were for

the payments to be made upon termination of the marriage, not upon Husband’s

death, noting Wife’s counsel’s testimony that he had never drafted a prenuptial

agreement with the payment from a divorce to be paid after death.

The trial court further found that in a subsequent draft of the

Agreement that Husband’s counsel sent back to Wife’s counsel later that same day,

Husband’s counsel included the death language and gave no response during his

testimony when asked if he did so on purpose. The court found that Husband’s

counsel testified he could not recall ever discussing that change with Wife’s counsel

and that he did agree the emails between him and Wife’s counsel referenced payout

amounts upon divorce rather than waiting for the death of either party to collect.

The court also found that Husband’s counsel, like Wife’s counsel, admitted that he

had never prepared a prenuptial agreement with this future payment language and could not explain why it would be necessary when Husband already had a trust that

made provisions for Wife upon his death.

The court ultimately concluded as follows:

Despite [Husband’s counsel’s] sophistry, the Court cannot find that the parties intended that any payment to [Wife] . . . and from Husband . . . was meant to be paid after the death of [Husband]. [Husband] cannot have this argument every way: that the agreement is to be paid on death, that the amount paid is capped at the time of the divorce but not paid until death, that it is ambiguous, that it might be unenforceable, and that [Wife] has waived all payments.

Citing in support the Ohio Supreme Court’s decision in Gross v.

Gross, 11 Ohio St.3d 99 (1984), which established the test for whether antenuptial

agreements are valid and enforceable, the court further concluded that:

The Court cannot identify a more overreaching event than having the party without assets wait decades for a fair division of property.

. . . [T]he Court finds that [Wife] should not be deprived of the agreement she entered into which was a payment upon the “termination event” of divorce when the scribe hired by the other party put in a term that was not discussed by the attorneys in negotiating this document.

Considering its conclusions above, the court then reformed Section

13(b) of the Agreement to remove the “upon [Husband’s] death” language so that

Wife would receive Husband’s assets “upon the termination event.” On appeal,

Husband argues that the trial court erred in finding that the Agreement should be

reformed. Husband also argues that the court’s finding that Husband’s counsel was

not credible was erroneous. We disagree.

In Ohio, [antenuptial agreements] are valid and enforceable (1) if they have been entered into freely without fraud, duress, coercion, or overreaching; (2) if there was full disclosure, full knowledge and understanding of the nature, value and extent of the prospective spouse’s property; and (3) if the terms do not promote or encourage divorce or profiteering by divorce.

Gross, at paragraph two of the syllabus. “[T]he term ‘overreaching’ is used in the

sense of one party by artifice or cunning, or by significant disparity to understand

the nature of the transaction, to outwit or cheat the other.” Id. at 105.

Reformation is an inherent, equitable remedy that allows a court to

change the language in a contract where the parties’ true intentions have not been

properly represented due to a mutual mistake or fraud. Wong v. CCH Dev. Corp.,

2021-Ohio-1099, ¶ 14-15 (8th Dist.). Generally, a trial court may reform a written

instrument only for mutual mistake and not in the case of a unilateral mistake. Id.

at ¶ 16.

However, when a unilateral mistake occurred ‘due to a drafting error by one party and the other party knew of the error and took advantage of it, the trial court may reform the contract. [. . .] Reformation is appropriate if one party believes a contract correctly integrates the agreement and the other party is aware that it does not, even though the mistake was not mutual.’

Id. at ¶ 17, quoting 425 Beecher, L.L.C., v. Unizan Bank, Natl. Assn., 2010-Ohio-412,

¶ 44 (10th Dist.), quoting Galehouse Constr. Co., Inc. v. Winkler, 128 Ohio App.3d

300, 303 (9th Dist. 1998). It is not necessary as a prerequisite to the reformation of

a contract that the contract be ambiguous. Cuthbert v. Trucklease Corp, 2004-

Ohio-4417, ¶ 34 (10th Dist.); Gooslin v. B-Affordable Tree Serv., 2011-Ohio-4048, ¶ 19 (6th Dist.). See also Williams Trucking, Inc. v. Gable, 2000 WL 739541 (8th

Dist. June 8, 2000).

Where, as here, reformation of a contract is sought on the basis of

mistake, the party seeking such reformation must establish the existence of the

mistake by clear and convincing evidence. Wagner v. Natl. Fire Ins. Co., 132 Ohio

St. 405 413 (1937); Pepper Pike Properties Ltd. Partnership v. Wilson, 2002 WL

199902, *3 (8th Dist. Jan. 31, 2002). Clear and convincing evidence is the degree of

evidence necessary to “produce[] in the mind of the trier of fact a firm belief or

conviction as to the facts sought to be established.” In re M.S., 2015-Ohio-1028, ¶ 8

(8th Dist.). Whether the trial court’s findings are supported by clear and convincing

evidence will only be reversed on appeal if they are against the manifest weight of

the evidence. In the Matter of: Dorazio, 1985 WL 7461, *2 (8th Dist. Jan. 24, 1985).

In weighing the evidence, “the court of appeals must always be mindful of the

presumption in favor of the finder of fact.” Eastley v. Volkman, 2012-Ohio-2179, ¶

21.

A review of the record establishes that the trial court’s findings were

supported by clear and convincing evidence. Wife’s counsel testified that the “upon

Husband’s death” language was “[a]bsolutely a mistake” and an oversight,

emphasizing that there is a separate provision for payment to Wife upon Husband’s

death in Section 13(a) of the Agreement; therefore, it would not make any sense to

have two such provisions in the same agreement. The email exchanges between

counsel, which were admitted into evidence, reflect that their negotiations and communication were that the parties intended for Wife to receive payment at the

time of the parties’ divorce rather than at the time of Husband’s death. However,

after initially submitting those terms to Wife’s counsel and representing that they

were approved by Husband as the Agreement, Husband’s counsel changed the

Agreement to include the “upon Husband’s death” language and did not inform

Wife’s counsel that he had done so.

On cross-examination, Husband’s counsel testified as follows on this

subject:

Q. (Wife’s counsel): And then on the terminating event . . . how much would [Wife] get at five - - after five years [of marriage]?

A: (Husband’s counsel) (As read) “If married at least five years but less than 10 years, 20 percent of [Husband’s] net asset value with a $5 million floor.”

Q. Okay, But that’s not what you put in the agreement, is it?

A. Correct.

Q. Did you tell [Wife’s counsel] that you went back on your statements?

A. I don’t recall having conversations with [Wife’s counsel] - -

Q. For the record the second time, did you tell [Wife’s counsel] in words or in an e-mail that you were changing what you sent to him on July 31st, 2015?

A. No.

Q. You sent an agreement, but you didn’t tell him - - you didn’t tell him that you changed the terms from your prior e-mail, did you?

A. I did not have discussions with [Wife’s counsel]. ...

Q. Well, you didn’t tell him in an email.

Q. Okay, So your claim is, in the negotiations, you went back to [Wife’s counsel] and said to him, “No. [Wife] only gets the money at death.” You told him that, wrote it to him, or explained it to him.

A. I sent him an agreement with that in the agreement.

Q. So you never told anyone? . . .

A. I - -

Q. Right?

Based on the testimony and evidence regarding counsel’s

communication, there was clear and convincing evidence that the Agreement

contained a unilateral mistake which did not comport with the parties’ intentions at

the time of the Agreement and that reformation was appropriate to properly

represent the parties’ true intentions. Husband’s counsel knew of the error and took

advantage of it by not bringing it to the attention of Wife’s counsel, and instead,

simply presented the Agreement with the additional language. Husband’s counsel

was aware that the Agreement did not correctly integrate the parties’ intentions

while Wife’s counsel believed that it did. While Wife’s counsel mistakenly

overlooked the change when he reviewed the Agreement after it was returned to him

by Husband’s counsel, he did so in reliance upon Husband’s counsel’s silence as to

any changes that had been made. Keeping in mind the presumption in favor of the finder of fact, we cannot say that the trial court lost its way when it found that

Husband’s counsel was not credible. Eastley, 2012-Ohio-2179, at ¶ 21. His lack of

forthrightness with Wife’s counsel was evident from his testimony.

Based on the foregoing, the trial court did not err in reforming the

Agreement to align with the parties’ intentions at the time of the marriage.

Husband’s second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3: THE TRIAL COURT ERRED IN ITS VALUATION OF THE PROPERTY DIVISION AMOUNT OWED TO [WIFE].

In its final judgment entry, the court listed the R.C. 3105.171(F)

factors that it was required to take into consideration when dividing property and

made findings as to each one with specific facts in support. Thereafter, using the

formula set forth in Paragraph 13(b)(2) of the Agreement, the trial court found that:

As to the property amount that [Wife] is entitled to under the Agreement, [Wife] is entitled to $3,000,000 plus 10% of [Husband’s] “Premarital Net” which is $5,335,993.70, plus 20% of [Husband’s] “Post Marital Ne[t] Assets” or $1,712,379. The total [Husband] owes [Wife] is $10,048,372.

The court ordered Husband to pay Wife the total owed by December 31, 2024.

In determining Husband’s Premarital Net of $5,335,993.70, the court

relied on the 2015 list of Husband’s assets attached to the Agreement as Exhibit

A/A1 and determined that Husband had premarital assets totaling $53,359,937

which was comprised of $18,000 in PNC Bank, $130,000 in First Merit Bank, 50%

of AJAPPJR, LLC with a net worth $53,164,937 as of March 12, 2015, a 2011 BMW

worth $27,000, and a violin worth $20,000. The trial court noted that Husband’s own spreadsheet (Exhibit A/A1) showed that he had total net assets valued at

$53,164,937. Ten percent of $53,359,937, the total of all these assets, is the

Premarital Net found by the court of $5,335,993.70.

The court then arrived at the $1,712.379 figure for Husband’s Post

Marital Net Assets by first determining that the net value of the property acquired

after the Agreement was $17,653,397. In making that determination, the court

compared the 2015 list of the parties’ premarital assets that was attached to the

Agreement (Exhibit A/A1) with the 2022 Cash Flow Spreadsheet submitted by

Husband (Exhibit 88) to determine what new properties were acquired during the

marriage. The court found that there were six properties listed on Exhibit 88 that

were not listed on Exhibit A/A1: Woolworth Annex, HOB Retail, Woolworth Garage,

WT Grant Retail, 629 Euclid Hotel, and Citizen’s Pie. The court also found that there

was testimony as to an additional three properties that were also not included in the

list of premarital assets: Voss Industries, the marital residence, and 50% of 3409

Superior Ave. The court then concluded that “[t]he total of these ‘Post Marital’

assets is $17,653,397 [and] [o]ne half of that is the [Husband’s], or $8,826,699.”

The court’s findings included columns for the properties’ fair market value,

mortgage balances, and net value. Husband does not dispute these values.

The court then acknowledged that the Agreement provided that

Husband’s Post Marital assets were to be “‘reduced by any taxes and expenses

(including, but not limited to, capital gains tax, income tax, real property tax,

conveyance fees, brokerage fees and financing fees) that otherwise would be incurred if such assets were sold at fair market value as of the termination event.’”

On that issue, the court found that “[t]he parties stipulated that [a] broker’s fee of

3% was reasonable.” The court further found that there was no evidence of any taxes

being paid on any entity, and therefore, the three percent brokerage fee should be

used. In making that finding regarding the taxes, the court noted that Husband

called Mr. Brendan Fitzgerald as a witness to testify to the tax calculations for the

hypothetical sales of property. Mr. Fitzgerald had been retained by Mr. Blaugrund,

the agreed financial expert, to provide the tax calculations that would in turn be used

in Mr. Blaugrund’s business valuation. However, the court struck Mr. Fitzgerald’s

testimony because it found that he was not on the witness list and Mr. Blaugrund

never testified at trial nor was his business valuation report ever submitted to the

court. Therefore, the court found that it was “not appropriate to take testimony

related to an expert witness who did not testify concerning a report that was neither

offered nor admitted.”

After deducting the three percent broker’s fee from Husband’s one

half of the Post Marital assets, the court arrived at a Post Marital Net asset figure for

Husband of $8,561,898 ($8,826,699 - 264,800 (the three percent fee)), which was

the figure it then used to calculate Wife’s 20% share under the Agreement of

$1,712.379 (.20 x $8,561,898). The court added up the $3,000,000 lump sum,

Husband’s $5,335,993.703 Premarital Net Assets, and the $1,712,379 (20% of

Husband’s Post Marital Net Assets) to arrive at the total of $10,048,372 as

Husband’s payment to Wife for her division of property under the Agreement. Husband argues under this assignment of error that the trial court

erred as follows: 1) it abused its discretion by finding under R.C. 3105.171(F)(4) that

the assets of the marital estate are not liquid while at the same time requiring that

the $10,048,372 payment to Wife be made by December 31, 2024; 2) it erred by

omitting taxes and conveyance fees when calculating the net value of the company;

and 3) it abused its discretion in finding Husband had no credibility because of

violations of the mutual restraining orders.

“A trial court has broad discretion in dividing marital property.”

Hampton v. Hampton, 2001 WL 777013, * 4 (8th Dist. July 5, 2001), citing Bisker

v. Bisker, 69 Ohio St.3d 608 (1994). R.C. 3105.171(F) lists nine specific factors for

the trial court to consider when dividing the parties’ marital property. It also

provides that the court can consider “[a]ny other factor that [it] expressly finds to be

relevant and equitable.” R.C. 3105.171(F)(10). We review the trial court’s division of

property for an abuse of discretion. La Spisa v. La Spisa, 2023-Ohio-3467, ¶ 28 (8th

Dist.). We incorporate the abuse of discretion standard outlined above.

As for the trial court’s findings regarding the valuation of marital

property, “we must affirm a trial court’s determination if it is supported by

competent credible evidence[.]” Chattree v. Chattree, 2014-Ohio-489, ¶ 43 (8th

Dist.). “[W]hen there is some competent, credible evidence in the record to support

a trial court’s decision, there is no abuse of discretion.” Victor v. Kaplan, 2020-

Ohio-3116, ¶ 25 (8th Dist.) Turning to Husband’s first argument, he points to the testimony of

Mr. Rico Pietro, a real estate broker with CRESCO Real Estate, who testified that he

was hired in 2021 to market several of Husband and J.M.’s properties for lease

and/or sale. Husband states that Mr. Pietro testified that the Uptown properties

could be sold for $50,000,000 and the Tudor Arms properties could gross between

$13,000,000 and $14,000,000 respectively, but Husband argues that those sales

would only cover the debt on the properties, leaving no cash to pay Wife. In support,

Husband relies on the 2021 Global Real Estate Cash Flow report (Husband’s Exhibit

101).

The record reflects that Mr. Pietro’s testimony regarding the Uptown

and Tudor Arms properties was in response to Wife’s counsel’s question on cross-

examination regarding which properties could be quickly liquidated into cash. Mr.

Pietro identified the two Uptown properties as one of three sets of properties that

could be quickly sold. While Husband relies on the debt position of the Uptown

properties as reflected in the 2021 Global Real Estate Cash Flow Report to support

his argument that there is no net equity in those properties, that report is not the

only evidence in the record and was not considered by the court. The court utilized

the more recent 2022 AJAPPJR Global Real Estate Cash Flow Report (Husband’s

Exhibit 88) in calculating the payment to Wife under the Agreement. Husband does

not allege that the 2022 Report was not properly utilized by the court in its

calculations. In the 2022 Report, the two Uptown properties were worth over

$50,000,000 and carried debt in the amount of $24,205,616 and $14,962,480 respectively, leaving net equity in the amount of $13,297,004 ($4,425,170 and

$8,871,834), which is well above the $10,048,372 necessary to pay Wife.

Furthermore, when asked whether “all of [Husband’s families’] property, all of their

holdings can be liquidated,” Mr. Pietro answered “[a]bsolutely.” (Emphasis added.)

Thus, according to expert testimony, Husband’s liquidity extended beyond the

Uptown properties. Therefore, Husband’s argument on this issue is overruled.

Next, Husband argues that the trial court erred in finding that

$53,000,000 is the net equity of AJAPPJR at the time of the marriage because that

figure does not include liquidation costs as required by the Agreement; that the court

erred when it chose to disregard the testimony of Mr. Fitzgerald regarding the

capital gains effect of the hypothetical sale of the properties because the Agreement

requires the court to include a reduction for taxes; and that the court erred by

omitting the conveyance fees that the County would impose at the time of sale as

anticipated in the Agreement.

First, Husband did not raise any of these arguments in the trial court.

In his trial brief, under his argument regarding the Agreement, Husband noted

parenthetically that his net premarital interest in AJAPPJR, LLC was obtained from

his own Exhibit A/A1 of the Agreement as well as Wife’s Exhibit DDDDDD which

reflected “[his] net worth at over $53,000,000” in the company as of January 1,

2015. He did not challenge this number nor did he propose any other calculations.

The trial court used Husband’s own spreadsheet (Exhibit A1 of the Agreement) to

determine that his net equity after debt and expenses was $53,164,937. Husband made no argument to the trial court that the list of expenses on the spreadsheet did

not include the liquidation costs under the Agreement or were somehow incorrect.

Regarding Mr. Fitzgerald, the trial court’s reference to its exclusion of

his testimony pertained to its calculation of Husband’s Post Marital Net Assets.

Husband made no reference in his trial brief to Mr. Fitzgerald’s testimony, as he

does here on appeal, regarding $29,044,296 in capital gains, a net investment

income tax of 3.8%, or an Ohio tax of $1,393,255 in calculating his Post Marital Net

Assets. Husband said nothing in his trial brief about the amount of conveyance fees.

Other than requesting a three percent broker’s commission, which the court

included in its calculations, Husband made no argument in the trial court about Mr.

Fitzgerald’s testimony as to the taxes, expenses, financing fees, conveyance fees etc.,

that the court should have utilized as a reduction in its calculation of his Post Marital

Assets under the Agreement.

Therefore, as Husband did not raise these issues in the trial court, he

is raising them for the first time on appeal which we have repeatedly said means we

cannot consider them absent plain error. Tate, 2022-Ohio-4745, at ¶ 19, 20 (8th

Dist.). Husband does not argue plain error. Even if Husband had properly

preserved his challenge regarding Mr. Fitzgerald’s testimony, his argument would

fail. Mr. Fitgerald’s report was identified as Exhibit 133 but it was never admitted

into evidence. Mr. Fitzgerald prepared the report so that Mr. Blaugrund could use

it to complete his business valuation, but as the trial court noted, Mr. Blaugrund did

not testify nor did either party submit his business valuation report for consideration by the court. It is not an abuse of discretion to decline to consider

testimony based on reports that were not admitted into evidence.

As for Husband’s third argument, he maintains that the trial court’s

finding that he lacked credibility because of his violations of the mutual restraining

orders was contrary to the evidence. In support, he states that “[t]he Company was

not restrained from its ordinary course of business until on or about April 18, 2024,

when it was made a party to the divorce action and restraining orders were

implemented.” Yet, on April 14, 2022, two years prior, Husband’s counsel moved

for partial release of temporary mutual restraining order so that 629 Euclid could be

sold. Thus, Husband’s argument fails as his own motion contends that a mutual

restraining order was in effect well before April 18, 2024. Also, the court’s final

judgment entry recites several incidents where Husband testified that he felt

justified in violating the mutual restraining orders because of the delays in the

litigation and Husband does not dispute those findings.

Nonetheless, even if Husband was correct that the court erred in

finding that he was not credible based on his potential violations of the mutual

restraining orders, the court found that Husband lacked credibility for many other

reasons. In its final judgment entry, the court listed numerous examples of

Husband’s lack of credibility: the lack of candor by Husband and his family that

prevented the court from having a full picture of the properties owned by them; the

multiple substitutions of counsel; the lack of prepared expert witnesses; Husband’s

lack of responsiveness to discovery; the various appeals that contributed to delays; the wedding between Husband and Dr. Basak Can while Husband was still married

to Wife which Husband characterized as a Jewish religious celebration but that the

court found was a “collaborative effort . . . to deny the plain truth . . . and goes to the

credibility of [Husband] and his witnesses[;]”and three pages dedicated to the

subject of “What is MRN?” that described the inconsistencies and confusion

between various witnesses as to the ownership and holdings of MRN, particularly as

it related to AJAPPJR, a company owned by both Husband and J.M. Therefore,

considering the many other reasons why the court found that Husband lacked

credibility, even if it erred in finding that he violated the mutual restraining orders,

its overall determination that Husband lacked credibility would have been

unaffected. Husband’s argument on this point is overruled.

All the trial court’s findings under the R.C. 3105.171(F) factors are

supported by record evidence as recited in its findings and conclusions, including

but not limited to the 2022 Cash Flow Report (Exhibit 88), the 2015 list of

premarital assets attached to the Agreement, and the testimony of the parties. Thus,

the trial court’s calculation of Husband’s payment to Wife for her share of the

division of property was supported by competent, credible evidence.

Accordingly, based on the foregoing, Husband’s third assignment of

error is overruled. ASSIGNMENT OF ERROR NO. 4: THE TRIAL COURT ABUSED ITS DISCRETION IN ITS FINDING THAT DENIAL OF SPOUSAL SUPPORT UNDER THESE CIRCUMSTANCES WOULD BE UNCONSCIONABLE.

The trial court concluded that despite the parties’ waiver of spousal

support in the Agreement, “it would be unconscionable for the Court to deny spousal

support to [Wife] who was unemployed at the time of the separation and without

means while [Husband] has had almost unlimited funds at his disposal.”

Thereafter, upon considering all the R.C. 3105.18(C)(1) factors and making express

findings under each one, the court then found that:

it is appropriate and reasonable for [Husband] to pay spousal support to [Wife] in the form of the direct payments for the monthly mortgage, real estate taxes, homeowner’s insurance, gas, electric, water, sewer, internet and maintenance including the exterminator for the marital residence . . . until such time as [Wife] receives her property division payment in FULL, subject, however, with a grace period for [Wife] to find alternate housing.

When reviewing the spousal support provisions of a prenuptial

agreement, the court must apply a “further standard of review [beyond the three

elements required for enforceability] . . . one of conscionability of the provisions at

the time of the divorce[.]” Gross, 11 Ohio St.3d at 109 (1984). “Because the

provisions related to spousal support have the ability to become invalid based on a

change in circumstances of one of the parties to the marriage, a court must review

the circumstances of the parties as they exist at the time of the divorce to determine

if they remain conscionable.” Saari v. Saari, 2009-Ohio-4940, ¶ 10 (9th Dist.),

citing Gross at 109. The analysis of whether spousal support provisions are

unconscionable at the time of the divorce is guided by the factors applicable to the

initial determination of spousal support pursuant to R.C. 3105.18(C)(1). Gross at

109-110. “In determining whether to grant spousal support and in determining the

amount and duration of the payments, the trial court must consider the factors listed

in R.C. 3105.18(C)(1)(a)-(n).” Hloska v. Hloska, 2015-Ohio-2153 ¶ 10 (8th Dist.).

The goal of spousal support is to reach an equitable result and there is no set

mathematical formula to reach this goal. Id. at ¶ 11. In determining spousal support,

the trial court must weigh all the factors listed in R.C. 3105.18(C) and not base its

determination on any single factor in isolation. Kaechele v. Kaechele, 35 Ohio St.3d

93, 96 (1988) The trial court need not comment on each factor, but the record must

demonstrate that the court considered each factor in making its spousal support

award. La Spisa, 2023-Ohio-3467, at ¶ 91 (8th Dist.)

An appellate court’s review of a trial court’s decision regarding

conscionability of a spousal support provision in an antenuptial agreement

“implicates a mixed question of law and fact.” Mann v. Mann, 2010-Ohio-1489, ¶ 10

(9th Dist.). A determination of whether a written contract is unconscionable is an

issue of law that is reviewed de novo. Taylor Bldg. Corp. of Am. v. Benfield, 2008-

Ohio-938, ¶ 34. “When a trial court makes factual findings, however, supporting its

determination that a contract is or is not unconscionable . . . those factual findings

should be reviewed with great deference.” Id. at ¶ 37. Husband correctly asserts that the analysis of whether spousal

support provisions are unconscionable at the time of the divorce is governed by the

R.C. 3105.18(C)(1) factors. The trial court made detailed, express findings as to each

of the R.C. 3105.18(C)(1) factors. Husband does not challenge any of the trial court’s

findings as to those factors. Husband argues that the trial court erred in awarding

spousal support to Wife because she has already received four years’ worth of

temporary support for a five-year marriage and has had plenty of time during the

pendency of the parties’ divorce to obtain employment, and thus, the purpose of

spousal support to mitigate the drastic and abrupt lifestyle changes occasioned by

divorce has been satisfied. Other than this general argument that Wife no longer

needs spousal support because she has had time to find employment and, in his

opinion can work, Husband does not identify with any record evidence or argument

how the trial court erred in its findings regarding any of the R.C. 3105.18(C)(1)

factors.

Moreover, the trial court’s findings are based in part on Husband’s

overall lack of credibility and whether he might delay the division of property. As

spousal support is to be paid only until Husband pays the property division, it is not

an abuse of discretion to find that the statutory factors support an award until the

property division permits Wife to be financially independent. Husband’s argument

does not challenge his lack of credibility. Accordingly, as Husband has once again failed to meet his burden on

appeal by failing to properly support his argument, Husband’s fourth assignment of

error is overruled.

ASSIGNMENT OF ERROR NO. 5: THE TRIAL COURT ERRED IN ITS CHILD SUPPORT CALCULATION.

ASSIGNMENT OF ERROR NO. 6: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN APPLYING AN UPWARD DEVIATION TO THE CHILD SUPPORT WORKSHEET CALCULATION.

Husband’s fifth and sixth assignments of error will be addressed

together as their analysis is intertwined.

R.C. 3119.02 provides that a parent’s child support obligation shall be

calculated under the basic child support schedule, the applicable guideline

worksheet, and the other provisions of Revised Code Chapter 3119. However,

pursuant to R.C. 3119.04, if the combined annual income of both parties is greater

than the maximum annual income listed on the guideline worksheet, the court “shall

determine the amount of the obligor’s child support obligation on a case-by-case

basis and shall consider the needs and the standard of living of the children who are

the subject of the child support order and of the parents.” R.C. 3119.04.

In this case, the trial court concluded that the parties’ combined

income exceeded the maximum under the basic child support schedule, and

therefore, pursuant to R.C. 3119.04, the child support obligation had to be

determined on a case-by-case basis. The trial court’s guideline worksheet utilized

the $336,000 income cap to arrive at a baseline from which to determine appropriate support of $3665.77 ($1832.83 per child) and total cash medical

support of $80.70. After considering the needs and standard of living of the children

and the parents, the court found that the guideline amount would be inappropriate

and not in the best interest of the children, and ordered Husband to pay child

support to Wife in the amount of $8,000 per month ($4000 per child) and cash

medical support in the amount of $80.70 ($40.35).

Regarding the parties’ incomes, the trial court determined that Wife

was voluntarily unemployed and imputed to her potential income in the annual

amount of $20,900, which represents minimum wage in Ohio. In arriving at that

income figure, the court found that Wife did not have any prior employment other

than owning an art gallery for a period of time that made no money; that she had a

bachelor’s and master’s degree; that she had no mental or physical disabilities; and

that she could work while the children were in school. The court noted that no

evidence was presented regarding the availability of employment to Wife in the

geographic area or as to any special skills and training that she possessed.

Regarding Husband’s income, the trial court found that he did not

provide any income documentation, so it relied instead on the tax returns submitted

by Husband’s brother, J.M., who testified that his income was the same as

Husband’s because they were equal business partners. The court found that

Husband receives a monthly draw from AJAPPJR, LLC in the amount of $17,500

($210,000 annually) and interest income from several businesses in the average

amount of $198,730 per year (using 2019-2021), for a total annual income of $408,730. The court noted that this was a conservative number as Wife testified

that Husband’s income was $439,000 based on a tax form K-1 belonging to

Husband, and that a loan application reflected that he earned $463,00 in interest

income in 2019 in addition to $163,000 in cash distributions.

In his fifth assignment of error, Husband does not dispute the trial

court’s finding that Wife is voluntarily unemployed. Rather, he argues that the trial

court erred in only imputing minimum wage to Wife, asserting that “[i]t is

reasonable and appropriate to impute an income of $50,000 to [her].” In support

of his argument, Husband states that:

[Wife] holds a masters degree in psychology and testified to running an art gallery. She is in good health. There is no evidence [Wife] is limited to minimum wage positions. . . . Certainly, with her qualifications, [Wife] could earn far more than $26,000.00 per year.

“Whether a parent is ‘voluntarily unemployed’ is a matter to be

determined by the trial court based upon the facts and circumstances of each case.”

Phelps v. Saffian, 2016-Ohio-5514, ¶ 43 (8th Dist.) “Absent an abuse of discretion,

that factual determination will not be disturbed on appeal.” Rock v. Cabral, 67 Ohio

St.3d 108, 112 (1993). We incorporate the abuse of discretion standard utilized

above.

Pursuant to R.C. 3119.01(C)(18)(a)(i)-(xi), the trial court must

consider the following factors when imputing income to a parent: the parent’s prior

employment experience; the parent’s education; the parent’s physical and mental

disability, if any; the availability of employment in the geographic area in which the parent lives; the parent’s special skills and training; the age and special needs of the

child for whom child support is being calculated; the parent’s increased earning

capacity because of experience; the parent’s decreased earning capacity because of

a felony conviction; and any other relevant factor. As noted above, the trial court

expressly addressed each of those factors in support of its decision to impute income

to Wife in the amount of $20,900.

Husband’s request to impute $50,000 to Wife is based solely on his

personal opinion and is unsupported by any record evidence pertaining to the

statutory factors, nor does Husband point to any evidence that disputes any of the

trial court’s findings regarding the factors. For example, although Husband claims

Wife could earn much more than minimum wage, he did not present a vocational

assessment or any other expert opinion regarding Wife’s suitability for employment

in a particular occupation given her employment history and education. He did not

present a list of job openings in the area for which she is qualified. While he claims

that the court erred in finding that Wife did not work prior to or during the marriage,

the transcript reference he provides in his brief is Wife’s testimony that she had an

art gallery that made no money and that Husband terminated the lease in 2022.

Thus, Husband’s claim that wife worked during the marriage does not support his

allegation that she could earn $50,000 in that occupation.

As for Husband’s own income, while he does not use the exact words

in his merit brief that the trial court committed error, he states that “[t]here is no

evidence that [Husband] receives any other income” than the “$13,500.00 per month from the Company as a distribution” and “$500.00 per month from [R.M.],

as and for rental income . . . .” We will treat those statements as Husband’s challenge

to the trial court’s use of $408,730.00 as his income for child support purposes.

“Because a determination of gross income for support purposes is a factual finding,

we must review the trial court’s decision to determine whether it is supported by

competent, credible evidence.” Trolli v. Trolli, 2015-Ohio-4487, ¶ 45 (8th Dist.)

In support of his argument, Husband relies solely on his and his

brother J.M.’s testimony. He does not point to any documentation contradicting the

trial court’s finding that his income is $408,730 as reflected on J.M.’s tax returns.

His tax returns are not in the record because he failed to produce them. He does not

contradict his loan application’s representation that he earned $463,000 in 2019.

The court, as the trier of fact, was in the best position to make credibility

determinations and, as previously noted, we “must always be mindful of the

presumption in favor of the finder of fact.” Eastley, 2012-Ohio-2179, at ¶ 21. The

court found his brother’s tax returns to be more credible than Husband’s and R.M.’s

testimony on this issue which it was permitted to do.

Based on the foregoing, the trial court did not abuse its discretion by

imputing $20,900 in income to Wife as the court properly considered the relevant

statutory factors. The court’s finding that Husband’s income was $408,730 for child

support purposes was a supported by competent, credible evidence in the form of

tax returns. Husband’s fifth assignment of error is overruled. In his sixth assignment of error, Husband argues that the trial

court’s upward “deviation” in child support is not equitable nor in the children’s best

interest. Husband argues specifically that the children have no special needs, and

the trial court improperly considered the standard of living of the children’s cousins.

Husband characterizes this alleged “deviation” as “de facto spousal support”

intended to prolong Wife’s excessive standard of living post-divorce. We disagree

with Husband.

First, Husband mischaracterizes the trial court’s child support award

as a “deviation.” As explained in our analysis under Husband’s fifth assignment of

error, because the parties’ combined income exceeded the maximum on the basic

child support schedule, the support guidelines do not apply. “[I]nstead, the court

must determine child support on a case-by-case basis.” Siebert v. Tavarez, 2007-

Ohio-2643, ¶ 31 (8th Dist.). Pursuant to R.C. 3119.04, “the only statutory

requirement is that the trial court consider ‘the needs and the standard of living of

the children [. . .] and of the parents’ in determining the amount of the obligor’s child

support obligation.” V.C. v. O.C., 2022-Ohio-1506, ¶ 8 (8th Dist.). “We have

expressly stated that R.C. 3119.22, relating to deviations from the child support

schedule for listed combined incomes, is no longer applicable in the case-by-case

approach.” Siebert at ¶ 31. The statute does not provide any factors that the court

must use to determine the amount of child support nor is the trial court required to

explain or provide specific reasons in support of its determination of the amount of

support. V.C. at ¶ 8. This determination is within the discretion of the trial court, and we review it for an abuse of that discretion. V.C. at ¶ 10. Again, we incorporate

the abuse of discretion standard utilized above.

The trial court made the following findings regarding the needs and

standard of living of the children and parents: Husband has stopped seeking time

with the children, leaving the entire burden of the children with Wife; Husband’s

income could not accurately be determined beyond the $408,730 calculated as a

minimum; the children’s standard should be the same as for Husband’s other child

and what it would have been had the parties’ remained married; and the court

declined to make a separate order for private school. The court noted

parenthetically that J.M.’s children have trust funds which are funded while the

parties’ children have trust funds that are not funded, presumably pointing out that

Husband does not plan to provide for his children. Based on these findings, we

cannot say the trial court abused its discretion.

Further, Husband does not challenge any of these findings with any

citations to testimony or other record evidence to support his claims that the support

award is excessive, unreasonable, and not in the best interest of the children.

Accordingly, based on Husband’s failure to meet his burden on appeal, we cannot

say that the trial court’s child support award constitutes an abuse of discretion.

Husband’s sixth assignment of error is overruled. ASSIGNMENT OF ERROR NO. 7: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND THAT [HUSBAND] WAS I[N] ARREARS FOR THE NONPAYMENT OF [WIFE’S] INTERIM ATTORNEY FEES.

On March 14, 2024, Wife filed an emergency motion for interim

attorney fees in the amount of $250,000. Husband responded in opposition. The

court granted Wife’s motion and ordered Husband to advance $250,000 to Wife’s

counsel within seven days of the entry. Wife subsequently moved to show cause

based on Husband’s failure to comply with the order.

The trial court concluded that:

as of the end of trial, the interim fees were not paid. [Husband] paid $1500. He testified that he asked his brother [J.M.] for the money but did nothing else to pay or comply with this order. [Husband] is in contempt of Court for this failure to comply. The Court notes that [Husband] testified to borrowing money from his father during this case for other things.

The court ordered that Husband was in civil contempt in the amount

of $248,500 for interim attorney fees as of April 24, 2024. Husband was sentenced

and purge conditions were established.

Husband argues on appeal that the attorney fee award was contrary

to the language of the Agreement which provided that each party would be

responsible for their own personal debt. He also argued that Wife caused an

unnecessary increase in litigation costs by prolonging the litigation, and thus, the

attorney fee award was unnecessary. To reiterate, this Court reviews a trial court’s

decision concerning a finding of contempt for an abuse of discretion. Perkins, 2013-

Ohio-265, at ¶ 9 (8th Dist.), Husband’s captioned assignment of error challenges the trial court’s

finding of contempt regarding the order to pay Wife attorney fees in the amount of

$248,500. However, Husband’s actual argument challenges the appropriateness of

the underlying award of attorney fees that gave rise to Wife’s motion to show cause.

He does not deny that he failed to comply with the order or assert that he made any

payments other than $1500. His argument is that he should not have to comply with

the order because he should not have been responsible for Wife’s attorney fees in

the first place. “‘This court rules on assignments of error, not mere arguments.’”

Meehan v. Meehan, 2023-Ohio-2772, ¶ 69 (8th Dist.), quoting Huntington Natl.

Bank v. Burda, 2009-Ohio-1752, ¶ 21 (10th Dist.); see also App.R. 12(A)(2) (“[t]he

court may disregard an assignment of error presented for review if the party raising

it fails to . . . argue the assignment separately in the brief as required under App.R.

16(A).”) Because Husband’s arguments go beyond the scope of his captioned

assignment of error and he did not separately challenge the court’s award of interim

attorney fees, this Court declines to address those arguments.

Even if we could reach the merits of Husband’s argument, it would be

overruled for Husband’s failure to properly raise the matter in the trial court below.

Husband’s brief in opposition to Wife’s motion for attorney fees did not contain any

argument that finding Husband in arrears for attorney’s fees would be inconsistent

with the language of the Agreement. His argument was that Wife failed to provide

an itemized statement pursuant to Loc.R. 21; that Wife’s monthly support is

sufficient to allow her to pay her own attorney fees; that Wife’s allegation of Husband’s misconduct is unfounded; and that he does not have the money to pay

Wife’s attorney fees. Again, as previously discussed, we cannot consider arguments

raised for the first time on appeal absent plain error and Husband does not argue

plain error. Tate, 2022-Ohio-4745, at ¶ 19, 20 (8th Dist.).

For all the reasons set forth above, Husband’s seventh assignment of

ASSIGNMENT OF ERROR NO. 8: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ISSUED AN UNREASONABLE AND IMPOSSIBLE PURGE OF [HUSBAND’S] CONTEMPT.

Husband was found in civil contempt for nonpayment of temporary

support in the amount of $28,808.58, and nonpayment of Wife’s interim attorney

fees in the amount of $248,500. The trial court sentenced Husband to 100 hours of

community service for each contempt, for a total of 200 hours, to be completed

within 60 days unless he purged the contempt. The purge condition was payment

of the arrearages within 30 days of the contempt order. Husband argues that 200

hours of community service to be completed within 60 days is unreasonable and

that compliance would be impossible due to his employment. Husband requested

that the court adjust the requisite hours and timeline for completion.

Wife’s counsel informed the Court at oral argument that Husband

had paid the temporary support arrearage of $28,808 and completed 100 hours of

community service. Considering those facts, Husband’s counsel agreed that this assignment of error is moot but reserved for appellate review the issue of the

underlying arrearages as set forth under his first and seventh assignments of error.

Therefore, based on the foregoing, Husband’s eighth assignment of

error is overruled as moot.

Wife’s Cross-Appeal ASSIGNMENT OF ERROR I: THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN ITS VALUATION OF [HUSBAND’S] BUSINESS INTERESTS/POST MARITAL ASSETS

Wife argues here that the trial court erred in its calculation in the

valuation of Husband’s Post Marital Net Assets because Husband’s personal

financial statements, as set forth in Exhibit YYYYY, revealed that his Post Marital

Assets consisted of cash, savings, and checking in the amount of $2,750,000.00, and

real estate in the amount of $39,259,902.00 (Exhibit YYYYY value of $92,619,839

minus Agreement Exhibit A1 value of $53,359,937). Wife further states that the trial

court’s valuation was “contrary to the record and the sworn declarations made by

[Husband] to Buckey[e] Community Bank . . . . See Exhibit YYYYY.”

In reviewing the record, Exhibit YYYYY was never admitted into

evidence. On April 24, 2024, the last day of trial, both parties’ counsel orally moved

their exhibits into evidence. According to the transcript, Exhibit YYYYY was not

included in the list of exhibits moved into evidence by either party. Therefore, as

Exhibit YYYYY was never admitted into evidence, the court did not err in failing to

consider it in its valuation of Husband’s Post Marital assets. To the extent that Exhibit YYYYY was allegedly part of Husband’s

“sworn declarations” made to Buckeye Community Bank in his loan application,

which was admitted into evidence as Wife’s Exhibit LLLLL, it is not attached to

Exhibit LLLLL.

Accordingly, based on the foregoing, Wife’s first assignment of error

is without merit and is overruled.

ASSIGNMENT OF ERROR II: THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION BY FAILING TO HOLD [HUSBAND] IN DIRECT CONTEMPT FOR HIS IMPROPER CONDUCT DURING THE TRIAL IN THIS MATTER.

Here, Wife argues that the trial court abused its discretion by failing

to hold Husband in contempt for his repeated outbursts and threatening conduct

throughout the proceedings. Wife points to several incidents as examples of the

court’s failure in this regard. The first occurred during Husband’s cross-examination

on the morning of March 29, 2024, when he began taking photographs of Wife and

Wife’s counsel from the witness stand. When Wife’s counsel objected, Husband

began using profanity towards Wife’s counsel. The court’s deputy intervened,

instructing and admonishing Husband at length to cease his conduct and inquiring

if he understood. Wife’s counsel then orally moved for Husband to be found in direct

contempt and sent to jail over the weekend. The trial judge indicated that while she

would hold a contempt hearing to address Husband’s behavior, she was not going

to do so at that time and would wait until the end of the day. As the matter

proceeded, the court repeatedly admonished Husband to stop talking and to respond only to the questions asked rather than offer his unsolicited opinions. The

court took a recess to give everyone time to regain composure.

The next incident that Wife raises occurred shortly after the lunch

break later that same day. The trial judge threatened that if Husband continued

talking, she would “just call the sheriff and send him on his way.” The last incident

that Wife raises occurred near the end of the same day when Wife’s counsel renewed

his request for a direct contempt hearing. The court proceeded to admonish

Husband as follows:

Sir, [] any of the comments that you have made at any point in this time could be construed as impeding the process. . . . I’m not going to be finding you in contempt today. But you understand that, at any point, if you say something that is inappropriate, there is certainly enough evidence already that you have tried to impede the process. I have not let you impede it, because I have just kept everyone going. But at some point, I may not be able to do that anymore. You need to understand that you are in serious jeopardy here. And it’s not funny. . . . Also you could be sentenced in the future. So just because you are not going [to jail] this weekend, it doesn’t mean that it won’t be a weekend when you do ultimately go, if it comes to that.

Following the above admonishment, Wife’s counsel objected, stating that the court’s

statements were not sufficient to properly address Husband’s behavior.

“Direct contempt is an act ‘of misbehavior in the presence of or so

near the court or judge as to obstruct the administration of justice.’” (Emphasis in

original.) In re McGinty, 30 Ohio App.3d 219, 223 (8th Dist. 1986) quoting R.C.

2705.01. R.C. 2705.01 provides that “[a] court, or judge at chambers, may

summarily punish a person guilty of misbehavior in the presence of or so near the

court or judge as to obstruct the administration of justice.” “[S]ince the primary interest involved in a contempt proceeding is the authority and proper functioning

of the court, great reliance should be placed upon the discretion of the trial judge.”

Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16 (1988). Again,

we review a trial court’s decision regarding contempt under an abuse of discretion

standard. Perkins, 2013-Ohio-265, at ¶ 9 (8th Dist.). We incorporate by reference

First, App.R. 16(A)(8) requires that “[t]he appellant shall include in

its brief. . . [a] conclusion briefly stating the precise relief sought.” (Emphasis

added.) Here, Wife states in her conclusion that she “requests that this Court hold

[Husband] accountable[.]” However, she does not specify what judgment she wishes

this Court to issue that would hold Husband accountable. Thus, she has not made a

request for any “precise relief” as required by App.R. 16(A)(8). Accordingly, Wife

has not met her burden on appeal regarding this assignment of error.

Despite Wife’s failure to meet her burden on appeal, we have

nonetheless reviewed the transcript and conclude that the trial court did not abuse

its discretion in failing to hold Husband in contempt. It is clear from the record that

in each of the incidents at issue, the trial court addressed Husband’s behavior

immediately, admonishing him to cease his misconduct and warning him of the

consequences of any future infractions, including a potential jail sentence. Keeping

in mind that the trial judge has wide discretion in managing and controlling the

functioning of her courtroom, there is nothing in the record reflecting that she

neglected to address any of the matters now challenged by Wife. The court was clearly attempting to balance the necessity of keeping the trial moving forward with

managing Husband’s disruptions.

Based on the record before us we cannot conclude that this is a case

where the court showed “perversity of will, not the exercise of judgment but defiance

thereof” that constitutes an abuse of discretion. Weaver, 2022-Ohio-4371, at ¶ 24.

Accordingly, Wife’s second assignment of error is overruled.

III. Based on the foregoing, Husband’s assignments of error are

overruled. Wife’s assignments of error are also overruled. The judgment of the

Cuyahoga County Court of Common Pleas, Domestic Relations Division, is affirmed.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

__________________________________ SCOT ALLAN STEVENSON, JUDGE

BETTY SUTTON, P.J., and JILL FLAGG LANZINGER, J., CONCUR IN JUDGMENT ONLY

(Sutton, J., Stevenson, J., and Flagg Lanzinger, J., of the Ninth District Court of Appeals, sitting by assignment.)