Frankart v. Frankart

2024 Ohio 4963

• Court: Ohio Court of Appeals
• Decided: October 15, 2024
• Docket: 5-24-04
• Status: Published

Opinion

[Cite as Frankart v. Frankart, 2024-Ohio-4963.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

JULIA M. FRANKART, CASE NO. 5-24-04 PLAINTIFF-APPELLEE,

v.

RAYMOND E. FRANKART, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Domestic Relations Division Trial Court No. 2021 DR 357

Judgment Affirmed

Date of Decision: October 15, 2024

APPEARANCES:

Drew A. Wortman for Appellant

Craig M. Witherell for Appellee Case No. 5-24-04

WALDICK, J. {¶1} Defendant-appellant, Raymond E. Frankart (“Ray”), brings this appeal

from the January 2, 2024 judgment of the Hancock County Common Pleas Court,

Domestic Relations Division, awarding plaintiff-appellee, Julia M. Frankart

(“Julia”), spousal support and child support in the parties’ final divorce decree. On

appeal, Ray argues that the trial court erred by awarding Julia spousal support

because, he claims, the evidence showed that he actually earned less than Julia. He

also argues that the trial court erred by not retaining jurisdiction over spousal

support, and he argues that the trial court erred in its calculation of child support.

For the reasons that follow, we affirm the judgment of the trial court.

Background

{¶2} Ray and Julia were married in June of 1992. They had two children

together. One child emancipated prior to the parties filing for divorce.

{¶3} On September 9, 2021, Julia filed a complaint for divorce. Ray

subsequently filed an answer and counterclaim, also seeking a divorce.

{¶4} As the case progressed, the parties came to an agreement on numerous

issues, including shared parenting of their minor child and the division of nearly all

of their assets. However, the parties could not reach an agreement on spousal

support, the calculation of child support, and responsibility for outstanding debts on

three business credit accounts.

-2- Case No. 5-24-04

{¶5} A hearing was held before a magistrate on the unresolved issues on

January 23, 2023, and February 27, 2023. Both parties testified at the hearing and

numerous exhibits were entered into evidence detailing, inter alia, the parties’

earnings.

{¶6} From 2007 to 2022, the parties were partners in a successful real estate

business, operating a Remax franchise. Julia served as the operations manager of

the business and Ray served as the managing broker. However, Julia also took care

of the parties’ children. The parties lived what they described as a “very good”

lifestyle, taking numerous vacations, owning a second home on Lake Erie, and

owning a substantial amount of personal property. They also had numerous bank

accounts, investment accounts, and retirement accounts.

{¶7} Despite being partners in the business, the parties’ earnings history

taken from their tax records reflects a significant disparity. Julia had no taxable

earnings from 2001 through 2015. She had little earnings in 2016, and her earnings

were “35-37.5%” of the parties combined taxable earnings from 2017 through 2020.

{¶8} For example, according to joint trial exhibits, from 2016 through

September of 2022, Ray earned over $1,600,000 total in real estate commissions.

He had a high year of $305,134 in commissions in 2021, and a low year of $136,197

in commissions in 2020. (Joint Exs. XIV; XV). By contrast, during the same time

period, Julia earned a total of just over $125,000 in commissions. See (Joint Exs.

X-XV). She had a high year of $71,762.04 in 2020, and low years of $0 in 2016 and

-3- Case No. 5-24-04

2017.1 Further, Julia earned a total amount of taxable social security wages of just

over $115,000 from 2001-2021, while Ray earned over $1,000,000 in taxable social

security wages during the same period. (Joint Exs. VIII, IX).

{¶9} In September of 2022, the parties’ franchise agreement with Remax

expired. Ray started a new real estate partnership, which included a handful of

individuals from the parties’ prior business. He also took “seven or eight” property

listings from the prior business. (Feb. 27, 2023, Tr. At 36). Julia took a job at

Marathon earlier in 2022, earning a set salary of $90,000 per year. For purposes of

calculating child support for temporary orders, the parties had previously agreed

that Ray’s actual or potential income was $280,000 and Julia’s was $90,000.2 (Doc.

No. 34). Through the first eight months of 2022, Ray earned over $206,000 in

commissions, while Julia earned $16,600, separate from her new salary with

Marathon. (Joint Ex. XVII).

{¶10} The magistrate reviewed the evidence presented and issued a 28-page

decision on June 21, 2023. The magistrate discussed the parties’ earnings during

their lengthy marriage and how that impacted their retirement/social security. The

magistrate also discussed the parties’ future earnings, factoring-in that Julia would

be the primary caretaker of the parties’ minor child. The magistrate ultimately

determined that Ray should pay Julia a total of $600,000 in spousal support in

1 We are aware that commissions earned does not directly reflect gross income; however, these numbers are used as an example of the earning disparity between the parties in their partnership. 2 The joint tax return from 2021 contained in the record shows taxable income of $362,810.

-4- Case No. 5-24-04

installments of $5,000 per month for 10 years. The obligation could be fulfilled

earlier if the amount was paid-in-full. The magistrate also recommended that the

trial court not retain jurisdiction to modify the amount or duration of spousal

support. In addition, Ray was ordered to pay $704.04 per month, plus processing

fees, in child support.

{¶11} Ray filed multiple objections to the magistrate’s decision.

Specifically, he objected to paying spousal support, arguing that the evidence

showed that Julia’s income was higher than his, particularly since Ray was starting

a new business toward the end of 2022. He also argued, inter alia, that the magistrate

erred in its calculation of child support.

{¶12} On December 14, 2023, the trial court filed a decision overruling all

but one of Ray’s objections.3 In its decision, the trial court independently analyzed

Ray’s objections related to spousal support and child support and overruled them.

{¶13} On January 2, 2024, the trial court issued its final decree of divorce. It

is from this judgment that Ray appeals, asserting the following assignments of error

for our review.

First Assignment of Error

The Magistrate erred in fashioning a spousal support award requiring the appellant to pay the appellee. Appellant asserts that this is error because evidence produced at trial showed Appellee’s income was higher than Appellant’s income.

3 The sustained objection has no relevance to this appeal.

-5- Case No. 5-24-04

Second Assignment of Error

The Magistrate erred in finding that Appellee’s retirement was the reason spousal support should be awarded.

Third Assignment of Error

The Magistrate erred in the calculation of child support, and in determining each party’s respective income.

Fourth Assignment of Error

The Magistrate erred in making the spousal support award non- modifiable.

{¶14} For ease of discussion, we elect to address the first and second

assignments of error together.

First and Second Assignments of Error

{¶15} In Ray’s first assignment of error, he argues that the trial court erred

by ordering him to pay spousal support to Julia. In his second assignment of error,

he argues that the magistrate and the trial court improperly determined that Ray

should pay Julia spousal support based primarily on the disparity in the parties’

retirement funds.

Standard of Review

{¶16} Trial courts have broad discretion concerning an award of spousal

support. Schwieterman v. Schwieterman, 2020-Ohio-4881, ¶ 69. Therefore, a trial

-6- Case No. 5-24-04

court’s decision related to spousal support will not be reversed absent an abuse of

discretion. Id.

Relevant Authority

{¶17} Revised Code 3105.18 governs the award of spousal support in

divorce cases. “‘[S]pousal’ support means any payment or payments to be made to

a spouse or former spouse . . . that is both for sustenance and for support of the

spouse or former spouse.” R.C. 3105.18(A). “In divorce . . . proceedings, upon the

request of either party and after the court determines the division or disbursement

of property . . ., the court of common pleas may award reasonable spousal support

to either party.” R.C. 3105.18(B).

{¶18} Importantly, an award of spousal support is not based solely on the

need of a party. Schwieterman at ¶ 69. An award of spousal support must be

balanced against the obligor’s ability to pay. Id.

{¶19} In order to determine whether spousal support is appropriate and

reasonable, R.C. 3105.18(C)(1) provides a list of factors that a trial court must

consider. These factors read as follows:

(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed 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; -7- Case No. 5-24-04

(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;

(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.

-8- Case No. 5-24-04

Analysis

{¶20} The magistrate in this case discussed spousal support in two separate

portions of her lengthy decision: pages 3-6 and pages 9-16. After the magistrate

awarded spousal support to Julia, Ray objected to the magistrate’s decision, making

essentially the same arguments that he does in the instant appeal. The trial court

reviewed Ray’s objections and rejected his arguments in the following analysis:

[Ray] characterizes his current income as far below that of Plaintiff. He explains over two pages about his income and his new business venture, which currently operates at a loss. . . . Defendant testified that in this new venture, he did not generate any income and had a negative balance sheet. . . . He did testify that his business was almost to a break-even point, but was not quite there yet. [citation omitted.] . . .

The Court first addresses [Ray’s] contention that the Magistrate solely or primarily considered income in making her Decision. To the contrary, the Magistrate considered the issue of spousal support in great detail. Her Decision spans approximately seven pages on this single issue. . . . In that span, she properly considered the statutory factors set forth in R.C. § 3105.18(A) and other relevant sections related to spousal support. . . .

As [Julia] addresses, the Magistrate considered not only the current incomes of the parties, but the historic disparity of income between them. [Ray]’s income always far exceeded [Julia]’s during the course of their thirty-year marriage. As part of the divorce proceedings, [Ray] refused offers to sell the original real estate business. . . . [Ray] then chose to start a new business venture which requires substantial investments and an understanding that the business will likely not be profitable until several months or years later. The magistrate clearly addressed this and other issues in her Decision. . . .

The Magistrate addressed the parties’ previous lifestyle, which she characterized as “moderately lavish.” . . . She also considered each

-9- Case No. 5-24-04

party’s age, working ability, and future likely incomes. She addressed their educations and potentials. . . .

In Objection 2, [Ray] focuses on the Magistrate’s statement that “the most compelling factor in support of [Julia’s] request for spousal support is the difference between the retirement resources for Plaintiff and Defendant and the lost income production by [Julia] during the marriage.” . . . [Ray’s] arguments would suggest that retirement was nearly the sole basis on which the Magistrate based her Decision on this issue. The Magistrate does focus a great deal on the disparate retirement accounts for each party, but in this Court’s opinion, does so correctly. This is a proper statutory factor under R.C. § 3105.18(C)(1). [Ray] appears [to] ignore[] the latter part of the sentence, which states the Magistrate also considered [Julia’s] “lost income production” for nearly thirty years. . . .

[The Magistrate] further focused on the individual facts relevant to this argument. She clearly considered [Julia’s] lack of social security earnings for many years. . . . The Magistrate addressed the significant gap in the parties’ retirement assets. [Ray] acknowledges this gap but argues that this “gap is already closing.” . . . Both parties are currently employed and will hereafter continue to accumulate their own retirement earnings, but the Magistrate’s Decision properly utilizes spousal support to help equalize the discrepancies between the two parties. She even addressed [Ray]’s arguments that his income was less than [Julia] argued, but ultimately found, based on all of the evidence, that his income was sufficient for the granted spousal support award. In its independent review of the evidence, this Court agrees with the Magistrate’s reasoning and factual findings.

(Doc. No. 122).

{¶21} Ray continues to argue to this Court that the magistrate and the trial

court did not properly consider how his income had changed when he began his new

partnership. However, the magistrate and the trial court’s analysis reflect otherwise.

{¶22} Ray contends that following the closure of the parties’ Remax

franchise in September of 2022, the parties’ earnings changed dramatically. He -10- Case No. 5-24-04

argues that Julia was making $90,000 per year in her new job with Marathon, while

at the time of the final hearing, Ray’s business was not yet turning a profit. Ray

testified that he thought he would be turning a profit within eighteen months, but at

the time of the final hearing he was using his savings to help pay business expenses.

Ray argues that there was no evidence that he was earning anywhere near the

$280,000 amount that was used for his income for spousal support purposes in 2022

or 2023. Further, he contends that the magistrate’s spousal support award was based

almost entirely on the parties’ disparate retirement earnings.

{¶23} Ray wants his future income for spousal support purposes to be based

largely on his 2022 income. During the final quarter of 2022, Ray was putting

money into a new business with a partner. The business already had five employees,

not including the two partners, and Ray testified that he expected to be turning a

profit within eighteen months. Further, Ray noted that he was a real estate broker,

whereas Julia was not, permitting him to own the business and oversee other agents.4

In addition, Ray noted in his testimony that during 2022, some of his large clients

were not sending him any business (such as Marathon), but he was hopeful that

would change in the near future. By all accounts, Ray’s income in 2022 appears to

be an extreme outlier as he got his new real estate business off the ground.

{¶24} Moreover, the record is clear that both the magistrate and the trial court

considered the spousal support factors contained in R.C. 3105.18(C)(1). The parties’

4 Ray specifically testified that as a managing broker he can own the business and run the business.

-11- Case No. 5-24-04

current and past incomes were considered as were the parties’ earning abilities, their

ages and conditions, their retirements, the duration of the marriage, their standard

of living, their education, their assets and liabilities, and Julia’s lost income due to

parenting the parties’ minor child.

{¶25} Further, we also reject Ray’s argument that the spousal support award

was based almost solely on the parties’ retirement income disparity, because the

magistrate and the trial court clearly considered the requisite statutory factors in

addition to retirement. Regardless, retirement income is a proper factor for the trial

court to consider when fashioning a spousal support award, and here Ray had

substantially greater social security earnings, and he also received a military benefit

from being in the Navy.5

{¶26} Given all the evidence that was presented and considered, we do not

find that the trial court abused its discretion by determining that Julia should be

awarded spousal support. Brown v. Brown, 2014-Ohio-2402, ¶ 39 (8th Dist.)

(holding the trial court’s consideration of all the factors in R.C. 3105.18(C)(1)

supported spousal support award). Therefore, Ray’s first and second assignments of

error are overruled.

Third Assignment of Error In his third assignment of error, Ray argues that the magistrate and the trial court erred in its child support calculation, particularly in determining each party’s respective income.

5 Ray received $1,118.44 as “service-connected disability compensation” per month.

-12- Case No. 5-24-04

{¶27} “Matters involving child support are reviewed under an abuse-of-

discretion standard.” Morrow v. Becker, 2013-Ohio-4542, ¶ 9.

{¶28} After reciting the relevant legal authority a trial court is required to

consider when determining an award of child support in his brief, Ray

“reincorporates the arguments” he made in the first assignment of error inasmuch

as they relate to his third assignment of error. More specifically, he contends that

“once the record is reviewed, a proper finding of each parties’ income will be made

and then a child support worksheet should be ran again.” (Appt.’s Br. At 10). This

is the exact same argument he made to the trial court when he objected to the

magistrate’s decision on child support, and the trial court rejected Ray’s argument,

holding:

[T]he magistrate did not err in her calculation of the parties’ respective incomes. This includes determinations related to [Julia’s] bonus as unexpected income and her statements that she is not continuing her real estate practice at this time, as she is too busy being a mom and working full time. . . .

{¶29} Similar to the trial court, we have already rejected the arguments Ray

made in his first assignment of error that he attempts to apply here as well. We

emphasize that Ray’s income for child support purposes was based on documented -13- Case No. 5-24-04

income of $181,021 in 2021. Ray cites to no legal authority showing how a trial

court abuses its discretion by determining income based on actual documented

income.

{¶30} As to Julia’s income, the trial court used Julia’s $90,000 salary and

added the $60,000 of spousal support to reach an income of $150,000. We find no

abuse of discretion by using this amount. Given the record before us, we do not find

that the trial court abused its discretion related to child support. Therefore, Ray’s

third assignment of error is overruled.

{¶31} In Ray’s fourth assignment of error, he argues that the magistrate and

the trial court erred by making the spousal support award non-modifiable. However,

Ray did not object to the magistrate’s decision on this issue.

{¶32} Civil Rule 53(D)(3)(b)(ii) governs the filing of objections to a

magistrate’s decision and provides that “[a]n objection to a magistrate’s decision

shall be specific and state with particularity all grounds for objection.” Except for a

claim of plain error, a party is prohibited from assigning as error on appeal the trial

court’s adoption of any finding of fact or legal conclusion, unless the party has

objected to that finding or conclusion of the trial court. Civ.R. 53(D)(3)(b)(iv).

-14- Case No. 5-24-04

{¶33} Ray filed four specific objections to the magistrate’s decision. He

challenged the income the magistrate applied for spousal support purposes; he

challenged the magistrate’s purported reliance on the parties’ disparate retirement

funds as reasoning supporting the spousal support award; he challenged the

magistrate’s determination that Ray should have to pay spousal support even after

Julia died; and he challenged the calculation of child support. Ray’s challenge to

having to pay child support after Julia’s death was sustained by the trial court. Ray

did not file a specific objection arguing that the magistrate erred by making the

spousal support award non-modifiable. Thus he has waived all but plain error.

{¶34} The plain error doctrine is not favored in civil appeals and “may be

applied only in the extremely rare case involving exceptional circumstances where

error, to which no objection was made at the trial court, seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging

the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson,

1997–Ohio–401, syllabus.

{¶35} Here, in reviewing the matter for plain error, we emphasize that R.C.

3105.18(E) permits a court to retain jurisdiction to modify a spousal support award,

but the statute does not require the trial court to retain jurisdiction. Ray cites no

legal authority establishing that in these circumstances that the trial court had to

-15- Case No. 5-24-04

retain jurisdiction to modify spousal support, thus we can find no plain error here.

Therefore, his fourth assignment of error is overruled.

Conclusion

{¶36} Having found no error prejudicial to Ray in the particulars assigned

and argued, his assignments of error are overruled and the judgment of the Hancock

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

ZIMMERMAN and MILLER, J.J., concur.

/jlm

-16-