[Cite as Manos v. Manos, 2012-Ohio-2281.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
TAMMY J. MANOS C.A. No. 26017
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE CHRIS G. MANOS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. 2007 04 1331
DECISION AND JOURNAL ENTRY
Dated: May 23, 2012
GALLAGHER, J.
{¶1} Appellant, Tammy J. Manos (“Wife”), appeals from the judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, that was issued on June 8, 2011.
For the reasons that follow, we reverse the decision of the trial court and remand for corrections
to the judgment entry of divorce.
{¶2} On December 2, 2008, the trial court issued a judgment entry of divorce for Wife
and appellee, Chris G. Manos (“Husband”). Wife appealed that judgment. In relevant part, the
appellate court found that there were inconsistencies as to the duration of spousal support
requiring clarification, that there were inconsistencies with the findings of fact as to who was
responsible for certain bills, and that the trial court erred by not determining the amount of
arrearage Husband owed to Wife, including with regard to temporary spousal support. Manos v.
Manos, 9th Dist. No. 24717, 2010-Ohio-1178, ¶ 30, 38-43 (“Manos I”). The case was remanded
for the trial court to address these issues. Id. [Cite as Manos v. Manos, 2012-Ohio-2281.]
{¶3} Upon remand, the trial court conducted a hearing. Thereafter, the court issued a
judgment entry on June 8, 2011, which reprinted its earlier judgment with modifications. The
court again found Wife was entitled to spousal support for nine years and recognized husband
had been paying for nearly two years. The court then ordered a spousal support term of 84
consecutive months, from the time of judgment. The court further found Husband was
responsible for an arrearage of $4,955 for utilities, medical expenses, condo fees, and auto
repairs, and that “spousal support was current.” It is from this judgment that Wife now appeals.
{¶4} Wife raises two assignments of error for our review, which provide as follows:
1. The trial court erred by failing to incorporate in its judgment entry the term of spousal support agreed to by the parties.
2. The trial court erred by failing to incorporate in its judgment entry the parties’ agreement regarding the amount owed by Mr. Manos for Temporary Support Arrearages.
{¶5} A trial court must follow the mandate of an appellate court when a case is
remanded. Graham v. Graham, 98 Ohio App.3d 396, 400, 648 N.E.2d 850 (2d Dist.1994).
Moreover, the trial court may not extend or vary the mandate given. Nolan v. Nolan, 11 Ohio
St.3d 1, 4, 462 N.E.2d 410 (1984).
{¶6} In the December 2, 2008 judgment entry of divorce, the trial court determined
relative to the spousal support award
that Wife is entitled to spousal support for a period of nine years * * * that Husband has been paying spousal support for nearly two years * * * [and that] Husband shall pay, as spousal support the sum of Fifteen Hundred Dollars ($1,500) a month for seventy two (72) consecutive months or until Wife shall remarry or die.
{¶7} In Manos I, the order was found inconsistent because “the court ordered nine years
of support with credit for nearly two years but then ordered support for 72 months, which is only six years.” Manos, 9th Dist. No. 24717, 2010-Ohio-1178, at ¶ 30. At the hearing on remand, the
trial court acknowledged that it had used two different numbers for the term of spousal support in
the divorce decree. The court stated as follows: “[W]hat I wanted was nine years basically from
the start of temporary.” Wife’s attorney then expressed the apparent agreement that “since the
Temporary Order started July 1, 2007, that spousal [support] would go for nine years or through
June 30, 2016.” The court agreed, stating, “Yeah. Right, we’ve taken care of that. That’s not a
problem.”
{¶8} Despite the court’s indication that spousal support was to run nine years from the
start of temporary spousal support, which was on July 1, 2007, the trial court’s June 8, 2011
judgment entry stated the following:
Wife is entitled to spousal support for a period of nine years. The Court finds that Husband has been paying spousal support for nearly two years. It is, therefore, further ORDERED, ADJUDGED and DECREED that Husband shall pay, as spousal support, the sum of Fifteen Hundred Dollars ($1,500) a month for eighty four (84) consecutive months (at the time of Judgment) or until Wife shall remarry or die.
{¶9} Wife argues that there are two judgment entries, one dated December 2, 2008, and
one dated June 8, 2011, and that the term of spousal support remains unclear. She claims the
trial court erred by using a nonspecific phrase and failing to incorporate the definite term of
spousal support agreed to at the hearing. Husband argues that there was no agreement between
the parties on the term of spousal support. He further argues that the court rectified its prior
entry by extending the term from 72 months to 84 months and incorporating the balance.
{¶10} Our review reflects that the trial court again expressed two inconsistent terms for
spousal support. First, the court indicated a term of nine years, which was intended to run from
the start of temporary spousal support. Then, the court expressed a term of 84 consecutive months (equating to seven years) “at the time of Judgment.” While it would seem logical that
the court was referring to the original judgment entry of divorce, the 84-month term falls
approximately seven months short of a period of nine years from the start of temporary spousal
support. Thus, an inconsistency remains within the trial court’s order.
{¶11} We recognize the trial court conducted a hearing to resolve the issues before it on
remand. Nonetheless, because the judgment entry did not contain the clarification attained at the
hearing and still remained inconsistent in the duration of spousal support, the court fell short of
complying with our mandate. Because the court’s intent is apparent from the record, we modify
the court’s order to reflect spousal support shall run through June 30, 2016, or until Wife shall
remarry or die.
{¶12} Next, the trial court was to determine the amount of arrearage Husband owed to
Wife, including for temporary spousal support, and his responsibility for other items. At the
hearing, Wife’s attorney represented that the parties agreed there was an arrearage owed for
temporary spousal support, and that they only disagreed on the amount. Wife claimed there was
an arrearage of $6,967, while Husband claimed there was an arrearage of $4,717, for a difference
of $2,250. Husband purportedly had two checks showing the disputed amount was paid. It was
indicated that if Husband could produce the two checks, he would receive credit for those
figures. Husband’s attorney represented that Husband had the checks and they would be
provided to the court. The court proceeded to address Husband’s responsibility and amounts
owed for certain bills, expenses, and other items.
{¶13} There is no evidence in the record to reflect whether the two spousal support
checks were ever produced to the court.
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[Cite as Manos v. Manos, 2012-Ohio-2281.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
TAMMY J. MANOS C.A. No. 26017
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE CHRIS G. MANOS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. 2007 04 1331
DECISION AND JOURNAL ENTRY
Dated: May 23, 2012
GALLAGHER, J.
{¶1} Appellant, Tammy J. Manos (“Wife”), appeals from the judgment of the Summit
County Court of Common Pleas, Domestic Relations Division, that was issued on June 8, 2011.
For the reasons that follow, we reverse the decision of the trial court and remand for corrections
to the judgment entry of divorce.
{¶2} On December 2, 2008, the trial court issued a judgment entry of divorce for Wife
and appellee, Chris G. Manos (“Husband”). Wife appealed that judgment. In relevant part, the
appellate court found that there were inconsistencies as to the duration of spousal support
requiring clarification, that there were inconsistencies with the findings of fact as to who was
responsible for certain bills, and that the trial court erred by not determining the amount of
arrearage Husband owed to Wife, including with regard to temporary spousal support. Manos v.
Manos, 9th Dist. No. 24717, 2010-Ohio-1178, ¶ 30, 38-43 (“Manos I”). The case was remanded
for the trial court to address these issues. Id. [Cite as Manos v. Manos, 2012-Ohio-2281.]
{¶3} Upon remand, the trial court conducted a hearing. Thereafter, the court issued a
judgment entry on June 8, 2011, which reprinted its earlier judgment with modifications. The
court again found Wife was entitled to spousal support for nine years and recognized husband
had been paying for nearly two years. The court then ordered a spousal support term of 84
consecutive months, from the time of judgment. The court further found Husband was
responsible for an arrearage of $4,955 for utilities, medical expenses, condo fees, and auto
repairs, and that “spousal support was current.” It is from this judgment that Wife now appeals.
{¶4} Wife raises two assignments of error for our review, which provide as follows:
1. The trial court erred by failing to incorporate in its judgment entry the term of spousal support agreed to by the parties.
2. The trial court erred by failing to incorporate in its judgment entry the parties’ agreement regarding the amount owed by Mr. Manos for Temporary Support Arrearages.
{¶5} A trial court must follow the mandate of an appellate court when a case is
remanded. Graham v. Graham, 98 Ohio App.3d 396, 400, 648 N.E.2d 850 (2d Dist.1994).
Moreover, the trial court may not extend or vary the mandate given. Nolan v. Nolan, 11 Ohio
St.3d 1, 4, 462 N.E.2d 410 (1984).
{¶6} In the December 2, 2008 judgment entry of divorce, the trial court determined
relative to the spousal support award
that Wife is entitled to spousal support for a period of nine years * * * that Husband has been paying spousal support for nearly two years * * * [and that] Husband shall pay, as spousal support the sum of Fifteen Hundred Dollars ($1,500) a month for seventy two (72) consecutive months or until Wife shall remarry or die.
{¶7} In Manos I, the order was found inconsistent because “the court ordered nine years
of support with credit for nearly two years but then ordered support for 72 months, which is only six years.” Manos, 9th Dist. No. 24717, 2010-Ohio-1178, at ¶ 30. At the hearing on remand, the
trial court acknowledged that it had used two different numbers for the term of spousal support in
the divorce decree. The court stated as follows: “[W]hat I wanted was nine years basically from
the start of temporary.” Wife’s attorney then expressed the apparent agreement that “since the
Temporary Order started July 1, 2007, that spousal [support] would go for nine years or through
June 30, 2016.” The court agreed, stating, “Yeah. Right, we’ve taken care of that. That’s not a
problem.”
{¶8} Despite the court’s indication that spousal support was to run nine years from the
start of temporary spousal support, which was on July 1, 2007, the trial court’s June 8, 2011
judgment entry stated the following:
Wife is entitled to spousal support for a period of nine years. The Court finds that Husband has been paying spousal support for nearly two years. It is, therefore, further ORDERED, ADJUDGED and DECREED that Husband shall pay, as spousal support, the sum of Fifteen Hundred Dollars ($1,500) a month for eighty four (84) consecutive months (at the time of Judgment) or until Wife shall remarry or die.
{¶9} Wife argues that there are two judgment entries, one dated December 2, 2008, and
one dated June 8, 2011, and that the term of spousal support remains unclear. She claims the
trial court erred by using a nonspecific phrase and failing to incorporate the definite term of
spousal support agreed to at the hearing. Husband argues that there was no agreement between
the parties on the term of spousal support. He further argues that the court rectified its prior
entry by extending the term from 72 months to 84 months and incorporating the balance.
{¶10} Our review reflects that the trial court again expressed two inconsistent terms for
spousal support. First, the court indicated a term of nine years, which was intended to run from
the start of temporary spousal support. Then, the court expressed a term of 84 consecutive months (equating to seven years) “at the time of Judgment.” While it would seem logical that
the court was referring to the original judgment entry of divorce, the 84-month term falls
approximately seven months short of a period of nine years from the start of temporary spousal
support. Thus, an inconsistency remains within the trial court’s order.
{¶11} We recognize the trial court conducted a hearing to resolve the issues before it on
remand. Nonetheless, because the judgment entry did not contain the clarification attained at the
hearing and still remained inconsistent in the duration of spousal support, the court fell short of
complying with our mandate. Because the court’s intent is apparent from the record, we modify
the court’s order to reflect spousal support shall run through June 30, 2016, or until Wife shall
remarry or die.
{¶12} Next, the trial court was to determine the amount of arrearage Husband owed to
Wife, including for temporary spousal support, and his responsibility for other items. At the
hearing, Wife’s attorney represented that the parties agreed there was an arrearage owed for
temporary spousal support, and that they only disagreed on the amount. Wife claimed there was
an arrearage of $6,967, while Husband claimed there was an arrearage of $4,717, for a difference
of $2,250. Husband purportedly had two checks showing the disputed amount was paid. It was
indicated that if Husband could produce the two checks, he would receive credit for those
figures. Husband’s attorney represented that Husband had the checks and they would be
provided to the court. The court proceeded to address Husband’s responsibility and amounts
owed for certain bills, expenses, and other items.
{¶13} There is no evidence in the record to reflect whether the two spousal support
checks were ever produced to the court. It would appear from the record that in the absence of proof of payment from husband, an arrearage of $6,967 was owed. Despite the representations
to the court, the trial court’s June 8, 2011 judgment entry indicated that “Husband shall be
responsible for any arrearage on the temporary spousal support order of the Court” and that
“spousal support was current.”
{¶14} Wife argues that the trial court’s finding is inconsistent with the agreement reached
before the court. Husband claims that the court specifically found he was obligated for an
arrearage in the sum of $4,955. However, that sum represented amounts owed for items apart
from temporary spousal support, i.e., utilities, medical expenses, condo fees, and auto repairs. It
is unclear from the record how the trial court arrived at the conclusion that spousal support was
current. Because we are unable to ascertain from the record whether the two support checks
were ever produced or whether spousal support was made current by the time of the trial court’s
entry, we must remand the matter for the trial court to make the appropriate determination and
make any necessary corrections to the judgment entry of divorce.
{¶15} Upon remand, the trial court is instructed to correct the judgment of divorce to
reflect (1) that spousal support shall run through June 30, 2016, or until Wife shall remarry or
die, and (2) the correct amount of arrearage, if any, in the payment of temporary spousal support.
Judgment reversed; case remanded for correction.
There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
SEAN C. GALLAGHER FOR THE COURT
MELODY J. STEWART, P.J., and JAMES J. SWEENEY, J., CONCUR
(Sitting by assignment: Sean C. Gallagher, Judge, Melody J. Stewart, Presiding Judge, and James J. Sweeney, Judge, of the Eighth District Court of Appeals.)
APPEARANCES:
DAVID FERGUSON, Attorney at Law, for Appellant.
DON LOMBARDI, Attorney at Law, for Appellee.