Salpietro v. Salpietro

2023 Ohio 169, 205 N.E.3d 1203

• Court: Ohio Court of Appeals
• Decided: January 20, 2023
• Docket: WD-22-028
• Status: Published

Opinion

[Cite as Salpietro v. Salpietro, 2023-Ohio-169.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

Gina Salpietro Court of Appeals No. WD-22-028

Appellant Trial Court No. 2021-DR-0037

v.

Benjamin J. Salpietro, Jr. DECISION AND JUDGMENT

Appellee Decided: January 20, 2023

*****

Drew Hanna, for appellant.

Julie S. Hoffman, for appellee.

***** MAYLE, J.

{¶ 1} Appellant, Gina Salpietro, appeals the April 5, 2022 judgment of the Wood

County Court of Common Pleas, Domestic Relations Division, granting her and appellee,

Benjamin Salpietro Jr., a divorce. With one small modification, we affirm the trial

court’s decision. I. Background and Facts1

{¶ 2} Gina and Benjamin married in 1990 and separated in 2020. Benjamin is an

orthopedic surgeon, and Gina was a homemaker for much of the parties’ marriage. They

have three emancipated children together.

{¶ 3} Although they began a contested divorce trial, by the start of the second day,

they had “reached an agreement * * * on everything except spousal support and legal

fees.” At the request of Gina’s attorney, Benjamin’s attorney read the terms of the

parties’ settlement into the record. They agreed on the distribution of personal property,

how to handle marital funds in a joint bank account, issues involving automobile loans,

terms for selling the marital home, issues with filing their tax returns, who was

responsible for paying specific bills, Benjamin procuring a life insurance policy with

Gina as the beneficiary, and distribution of Benjamin’s interests in two businesses. Two

terms of the agreement are particularly relevant here. First, the parties agreed that

Benjamin would give Gina a lump sum cash payment to compensate her for half of

Benjamin’s interest in a medical office building that generates rental income and in a

surgical consulting business. Because Benjamin was paying Gina for her interest in the

rental property and the consulting business, the parties agreed that the trial court’s

spousal support award should be based solely on the income he earns from his surgical

practice.

1 For ease of discussion, we present a cursory summary of the facts here, and will discuss the facts in more detail as they become relevant to Gina’s assignments of error.

2. {¶ 4} After Benjamin’s attorney recited the agreement, Gina’s attorney “conferred

with [his] client * * *” and said that “what [Benjamin’s attorney] has recited is an

accurate statement of the settlement.” Later, when Benjamin’s attorney clarified that they

had also agreed that the court’s spousal support award should be based only on

Benjamin’s income from his surgical practice because Benjamin was giving Gina a cash

payment for her half of his interests in the rental property and the consulting business,

Gina’s attorney simply responded, “So agreed.”

{¶ 5} Following the divorce hearing, the trial court issued its decision on spousal

support and attorney fees. The court made findings regarding all of the factors in R.C.

3105.18(C)(1), which controls an award of spousal support. The court ultimately decided

to award Gina spousal support of $13,000 per month for four years, followed by $10,000

per month for ten years, and then $6,000 per month indefinitely. Specifically, the court’s

decision said:

IT IS ORDERED that on May 1, 2022 and on the first day of each

month for the following 48 months defendant Benjamin Salpietro shall pay

to plaintiff Gina Salpietro $13,000 as spousal support; that on May 1, 2026

and on the first day of each month for the following 120 months defendant

Benjamin Salpietro shall pay to plaintiff Gina Salpietro $10,000 as spousal

support; and that on May 1, 2032 and on the first day every ensuing month

thereafter defendant Benjamin Salpietro shall pay to plaintiff Gina Salpietro

$6,000 as spousal support.

3. The court also awarded Gina $25,000 for attorney fees, which was in addition to $10,000

in fees that Benjamin was ordered to pay earlier in the litigation. Gina’s total award for

attorney fees was $35,000.

{¶ 6} Additionally, the trial court ordered Benjamin’s attorney to prepare a

proposed judgment entry incorporating the terms of the parties’ settlement and the trial

court’s decision on spousal support and attorney fees. Benjamin’s attorney certified that

she sent the proposed entry to Gina’s attorney on March 22, 2022, and that he had not

responded, objected, or countered with his own proposed entry. On April 5, 2022, the

trial court signed and filed the entry that Benjamin’s attorney prepared.

{¶ 7} Gina now appeals, raising ten assignments of error:

1. The Court Errs and Abuses its discretion by approving the

proposed Divorce Decree without giving the Appellant/Plaintiff an

opportunity to Object to the proposed Decree, containing major errors.

2. It is Error by the Court to limit Appellee/Defendant’s income for

Spousal Support to just his income as a Surgeon.

3. The Court Errs in ruling there was no Financial Misconduct by the

Appellee/Defendant.

4. The Court Errs by not considering the contributions

Appellant/Plaintiff made to the Appellee/Defendant in completing

Appellee/Defendant’s Surgical Residency.

4. 5. The Court Errs by failing to order Appellee/Defendant to pay

Appellant/Plaintiff’s health, dental, and optical insurance.

6. The Court Errs by reducing Appellant/Plaintiff’s Spousal Support

over time.

7. The Court Errs by limiting Spousal Support to $13,000 per month.

8. The Court Errs by making a clerical error in the Spousal Support

Payment Schedule.

9. The Court Errs by not requiring Appellee/Defendant’s Spousal

Support Payments to be made by Bank Withholding.

10. The Court Errs in granting inadequate Attorney Fees to the

Appellant/Plaintiff.

II. Law and Analysis

{¶ 8} In her assignments of error, Gina argues that the trial court (1) erred by

adopting the final decree of divorce prepared by Benjamin’s attorney, (2) committed

numerous errors in reaching its spousal support award, (3) made a clerical error in the

spousal support schedule, (4) should have found that Benjamin committed financial

misconduct, (5) should have ordered Benjamin to pay spousal support through bank

withholding, and (6) did not award Gina enough attorney fees. We address each

argument in turn.

5. A. We must disregard items that are not in the trial court record.

{¶ 9} As a preliminary matter, we note that Gina makes multiple arguments based

on information that is not in the appellate record. Appellate review of a trial court’s order

is limited to the record made in the trial court. Fifth Third Bank v. Fin. S. Office

Partners, Ltd., 2d Dist. Montgomery No. 23762, 2010-Ohio-5638, *3, citing Durrstein v.

Durrstein, 2d Dist. Montgomery No. 18688, 2001 WL 1203014 (Oct. 12, 2001). The

record that we can consider is “the record as it existed at the time the trial court rendered

judgment.” Leiby v. Univ. of Akron, 10th Dist. Franklin No. 05AP-1281, 2006-Ohio-

2831, ¶ 7, citing Chickey v. Watts, 10th Dist. Franklin Nos. 04AP-818 and 04AP-1269,

2005-Ohio-4974, ¶ 14; Baker v. Senior Emergency Home Repair EOPA, 6th Dist. Lucas

No. L-14-1203, 2015-Ohio-3083, ¶ 11, quoting State v. Ishmail, 54 Ohio St.2d 402, 377

N.E.2d 500 (1978), paragraph one of the syllabus (“Ohio law is clear that we must limit

our review on appeal to the record before the court at the time of judgment: ‘A reviewing

court cannot add matter to the record before it, which was not a part of the trial court’s

proceedings and then decide the appeal on the basis of the new matter.’”). We cannot

consider any exhibits attached to the parties’ briefs that were not made part of the trial

court’s record. Star Mgt., LLC v. Fayne, 6th Dist. Lucas No. L-12-1342, 2014-Ohio-

2319, ¶ 7.

{¶ 10} Basically, absent some legal authorization, we cannot consider facts that

were not presented to the trial court; documents that were not filed with, admitted into

evidence by, or proffered to the trial court; or any acts that occurred or issues that arose

6. after a party filed their notice of appeal. Baker at ¶ 11; see also In re Beck, 7th Dist.

Belmont No. 00 BA 52, 2002-Ohio-3460, ¶ 21. An exhibit attached to a party’s appellate

brief—but not filed with the trial court—is not part of the record. In re K.Y., 8th Dist.

Cuyahoga No. 109111, 2020-Ohio-4140, ¶ 9, citing Lisboa v. Lisboa, 8th Dist. Cuyahoga

No. 95673, 2011-Ohio-351, ¶ 10.

{¶ 11} With that in mind, in reviewing Gina’s assignments of error, we will

disregard (1) any factual information that the parties included in their briefs that is not

supported by something in the trial court’s record as it existed on May 3, 2022, when

Gina filed her notice of appeal; (2) the exhibits that Gina attached to her brief that were

not admitted at the divorce trial or otherwise filed with the trial court; (3) Gina’s

attorney’s emails; (4) several unfiled motions that Gina included in her brief; (5) Gina’s

proposed final decree (which the trial court did not adopt and is not in the trial court

record); and (6) the email and proposed final entry from Gina’s attorney that Benjamin

attached to his brief.

B. Gina cannot appeal the portions of the divorce decree that she consented to.

{¶ 12} Gina’s second and third assignments of error each relate to portions of the

final decree that Gina agreed to in her settlement with Benjamin. In her second

assignment of error, Gina contends that the trial court abused its discretion in considering

and applying the spousal-support factors in R.C. 3105.18(C)(1). She argues that the trial

court erred by limiting Benjamin’s income for spousal support purposes to the wages he

made from his surgical practice, rather than including his income from other sources,

7. including the rental property and consulting business. In her third assignment of error,

Gina argues that the trial court erroneously determined that Benjamin did not commit

financial misconduct because, she claims, he “dissipated” over $358,000 of marital assets

within the meaning of R.C. 3105.171(E)(4) in the 16 months leading up to the final

divorce hearing. Because Gina consented to the trial court limiting Benjamin’s income

and to all parts of the property settlement, she cannot now appeal those issues.

{¶ 13} As the Ohio Supreme Court recognized almost a century ago, when “a

consent decree has been entered by the court, such a decree is not even subject to direct

attack, except for irregularity or fraud in its procurement.” Sponseller v. Sponseller, 110

Ohio St. 395, 399, 144 N.E. 48 (1924), citing Harding v. Harding, 198 U.S. 317, 335, 25

S.Ct. 679, 49 L.Ed. 1066 (1905); Schenk v. Mohre, 6th Dist. Wood No. WD-83-33, 1983

WL 6982, * 1 (Oct. 28, 1983) (“[I]t is well settled that a judgment of a court of

competent jurisdiction, entered by consent of the parties, will not be reversed on error and

is binding and conclusive between the parties in the absence of fraud.”); see also Shanks

v. Shanks, 4th Dist. Ross No. 96CA2252, 1997 WL 114397, *4 (Mar. 10, 1997) (A

divorce decree based on a settlement agreement reached by the parties is “effectively [a]

consent judgment[] * * *.”). We have explicitly held that “unless specifically preserving

its right to appeal, a party participating in a consent judgment will not be allowed to

appeal errors from that judgment.” Kerwin v. Kerwin, 6th Dist. Lucas No. L-04-1002,

2004-Ohio-4676, ¶ 8, citing Sanitary Commercial Servs., Inc. v. Shank, 57 Ohio St.3d

178, 181, 566 N.E.2d 1215 (1991); and Wells v. Warrick Martin & Co., 1 Ohio St. 386

8. (1853), syllabus. This is because “[t]he purpose of a consent judgment is to resolve a

dispute without further litigation, and so would be defeated or at least impaired by an

appeal. The presumption, therefore, is that the consent operates as a waiver of the right

to appeal.” (Internal quotation omitted.) Id., citing Tradesmen Internatl., Inc. v. Kahoe,

8th Dist. Cuyahoga No. 74420, 2000 WL 283081 (Mar. 16, 2000); and Assn. of

Community Orgs. for Reform Now v. Edgar, 99 F.3d 261, 262 (7th Cir.1996).

{¶ 14} In this case, on the second day of trial, Benjamin’s attorney informed the

court that the parties had “reached an agreement * * * on everything except spousal

support and legal fees.” In addition to the 90 minutes that the parties spent negotiating

before the trial began, Gina’s attorney conferred with Gina after asking the court for

“guidance” on the remaining triable issues (i.e., spousal support and attorney fees).

Following that conference, Gina’s attorney told the court that “[they]’re ready to

proceed.” At Gina’s attorney’s request, Benjamin’s attorney read the parties’ agreement

into the record. After she recited the agreement, Gina’s attorney “conferred with [his]

client [Gina],” and said that “what [Benjamin’s attorney] has recited is an accurate

statement of the settlement.” (Emphasis added.) In addition to Gina’s attorney agreeing

to the terms as recited by Benjamin’s attorney, Gina did not personally voice any

objections about the settlement or its terms (although she did interject to clarify terms at

least twice).

{¶ 15} As part of the settlement, the parties agreed that only Benjamin’s surgical

income should be considered for purposes of determining spousal support because

9. Benjamin was giving Gina a cash payment equivalent to half of the value of his interest

in his rental property and his consulting business. The parties also believed that the issue

of financial misconduct was resolved by the settlement, as evidenced by (1) their

representations to the court that the only remaining issues were spousal support and

attorney fees, (2) the transcript of the second day of the divorce trial being devoid of any

reference to financial misconduct, (3) Benjamin’s attorney failing to question Benjamin

about the financial misconduct allegations during his direct testimony, and (4) Gina’s

attorney specifically withdrawing the exhibits related to financial misconduct after the

court noted that “a lot of” Gina’s exhibits from the first day of trial were “not terribly

relevant in consideration of the settlement that you’ve reached[.]”

{¶ 16} As discussed below, the proposed judgment entry that the trial court signed

and filed as the final divorce decree accurately represents the parties’ agreement, and

Gina does not allege any “irregularity or fraud in [the agreement’s] procurement.”

Sponseller at 399. Thus, because the divorce decree is a consent judgment that was

properly procured, Gina cannot appeal the portions of the judgment that she agreed to.

Id.; Schenk at *1; Kerwin at ¶ 8. Accordingly, Gina’s second and third assignments of

error are not well-taken.

C. The trial court properly approved the proposed decree submitted by Benjamin’s attorney.

{¶ 17} In her first assignment of error, Gina argues that the trial court improperly

approved the proposed final decree of divorce prepared by Benjamin’s attorney, and that

10. the proposed decree “contain[ed] major [e]rrors.” Although she contends that the trial

court violated its local rules by not giving her 14 days to object to the contents of the

proposed decree before the judge signed and filed it, Gina’s real complaint under this

assignment of error is that the final decree did not preserve her right to pursue Benjamin

for violations of the parties’ temporary support order. Benjamin responds that his

attorney complied with the local rule, the trial judge signed the final order after the

appropriate time had passed, and Gina’s attorney did not attempt to object to the

proposed decree until after the time for objecting had passed.

{¶ 18} Under Local Rule 4.05(B)(4) of the Court of Common Pleas of Wood

County, General Division, after an attorney who is ordered to prepare a judgment entry

submits the proposed entry to opposing counsel, opposing counsel can either sign the

entry or respond to preparing counsel with an entry containing proposed modifications.

If opposing counsel does not respond within 14 days, preparing counsel is required to

submit their proposed entry to the court with a certification statement indicating that

preparing counsel sent the proposed entry to opposing counsel, the date it was sent, the

manner in which it was sent, and that the proposed order “HAS NOT BEEN

RETURNED, REVISED NOR [sic] OBJECTED TO.” Local Rule 4.05(B)(5); see also

Local Rule 6.11(I) (Proposed entries in domestic relations cases “shall conform to Local

Rule 4.05 and shall contain the certification in Local Rule 4.05(B)(5) if the attorney who

prepared the entry has not received a response from the opposing attorney * * *.”). The

rule also requires opposing counsel who does not agree with preparing counsel’s

11. proposed entry to “prepare and submit to the original preparing counsel an entry with

proposed modification * * *.” Local Rule 4.05(B)(4).

{¶ 19} Generally speaking, when the parties put the terms of their settlement on

the record in open court, the trial court is free to adopt a proposed entry that accurately

reflects the terms of the settlement, unless the record reflects some objection by the non-

drafting party. See, e.g., Johnson-Rome v. Rome, 2d Dist. Montgomery No. 27200, 2017-

Ohio-4099, ¶ 7; Benz v. Benz, 11th Dist. Geauga No. 2004-G-2589, 2005-Ohio-5870, ¶

14. This is because an in-court settlement is a binding contract between the parties that

neither party can repudiate unless they prove fraud, duress, overreaching, undue

influence, or a factual dispute about the terms of the agreement. Wade v. Wade, 6th Dist.

Fulton No. F-02-14, 2003-Ohio-686, ¶ 7, citing Walther v. Walther, 102 Ohio App.3d

378, 383, 657 N.E.2d 332 (1st Dist.1995); and Spercel v. Sterling Industries, Inc., 31

Ohio St.2d 36, 285 N.E.2d 324 (1972), paragraph one of the syllabus. Thus, it is not

error for a trial court to adopt a proposed entry that one party submits in compliance with

the court’s local rules when the other party remains silent or fails to comply with the local

rules. See Johnson-Rome at ¶ 8 (no error when opposing party failed to object to drafting

party’s proposed entry as required by the local rules); compare Bd. of Twp. Trustees of

Thorn Twp. v. Roberts, 5th Dist. Perry No. 02 CA 2, 2002-Ohio-5804, ¶ 15-17 (trial court

erred by adopting one party’s proposed entry before the expiration of the time specified

in the local rules for the opposing party to object).

12. {¶ 20} Based on the record before us, there is nothing indicating that the trial court

or Benjamin’s attorney failed to comply with Local Rule 4.05(B). The parties entered

into a binding settlement of all issues except spousal support and attorney fees, which

neither party can repudiate without showing fraud, duress, overreaching, undue influence,

or a factual dispute about the terms of the agreement. Wade at ¶ 7. Gina does not argue

that any of those exceptions apply in this case.

{¶ 21} The certification on the entry that Benjamin’s attorney prepared (and the

trial court signed) shows that she sent the proposed entry to Gina’s attorney on March 22,

2022. Local Rule 4.05(B)(4) then put the burden on Gina’s attorney to either approve

and sign the proposed entry or submit a modified proposed entry to Benjamin’s attorney.

When Benjamin’s attorney did not receive a response from Gina’s attorney “within 14

days”—in this case, by April 5, 2022—she was required by Local Rule 4.05(B)(5) to

submit her proposed entry to the court with the certification that she had sent the entry to

Gina’s attorney on March 22, and that Gina’s attorney had not returned, revised, or

objected to the entry. Beyond that 14-day window for objections, Local Rule 4.05 does

not dictate when the trial court can or must sign a proposed entry. And the trial court

here chose to sign and file Benjamin’s proposed entry at the end of the day on April 5.

The record does not reflect that Gina alerted the trial court to her objections by, for

example, filing a motion to rescind the parties’ settlement agreement or seeking relief

from judgment under Civ.R. 60(B); in fact, the trial court’s docket shows that Gina did

13. not file anything other than her notice of appeal and its related documents until more than

four months after the trial court entered the final divorce decree.2

{¶ 22} Moreover, assuming that the trial court erred by signing Benjamin’s

proposed entry, Gina cannot show that the trial court’s actions prejudiced her. The

parties entered into a binding in-court settlement of all issues except spousal support and

attorney fees. The terms of the parties’ divorce that Benjamin’s attorney included in the

proposed decree are the same as the terms that Benjamin and Gina agreed to on the

record before the second day of the trial began. And (with the exception of the clerical

error discussed under Gina’s eighth assignment of error) the entry also accurately reflects

the trial court’s findings on spousal support and attorney fees. A party cannot establish

prejudicial error when the trial court adopts a proposed entry that accurately reflects the

parties’ settlement agreement. Benz, 11th Dist. Geauga No. 2004-G-2589, 2005-Ohio-

5870, at ¶ 20.

{¶ 23} Gina’s real complaint under this assignment of error is that the trial court’s

final entry did not preserve her right to pursue Benjamin for violations of the parties’

temporary support order. However, unless a temporary order is reduced to a separate

judgment or specifically referred to in the final decree, all temporary orders merge into

the final decree of divorce and become moot. Row v. Row, 6th Dist. Lucas No. L-21-

2 Although we are not considering the non-record exhibits that the parties submitted with their briefs in reaching our decision, we parenthetically note that Gina’s attorney did not submit anything purporting to be an objection to the proposed entry to the trial court until after the court was closed on April 5—i.e., after the time to object had fully passed.

14. 1231, 2022-Ohio-2525, ¶ 54, citing Dimmerling v. Dimmerling, 7th Dist. Noble No. 18

NO 0460, 2019-Ohio-2710, ¶ 140-141; Cotter v. Cotter, 9th Dist. Summit No. 25656,

2011-Ohio-5629, ¶ 10; and Colom v. Colom, 58 Ohio St.2d 245, 389 N.E.2d 856 (1979),

syllabus. A party’s right to enforce any temporary or interlocutory order that is not

reaffirmed by a separate judgment or incorporation into the final decree is extinguished

when the trial court issues the final decree. Id.

{¶ 24} Here, there is nothing in the record showing that the trial court reduced an

obligation Benjamin had under the temporary order to a separate judgment, and there is

no mention of the temporary order in the final decree.3 The parties told the trial court on

the second day of the divorce trial that they had settled all issues except spousal support

and attorney fees, but the settlement agreement that Benjamin’s attorney read into the

record—and that Gina’s attorney agreed with—did not include any terms related to

Benjamin’s obligations under the temporary order. Because the final decree disposed of

all matters before the court, the temporary order merged into the final decree, rendering

any violations of the temporary order moot. Row at ¶ 54-55. Moreover, to the extent that

Gina agreed to forego prosecuting violations of the temporary order by entering into a

3 In July 2021, Gina filed two motions to hold Benjamin in contempt for violating the temporary order. Although the record shows that the magistrate held a hearing in July 2021—apparently to address contempt motions filed by both parties—the transcript of that hearing is not in the record, and neither the magistrate nor the trial court filed any entries or orders related to the contempt motions. However, when the trial court fails to expressly decide a pretrial motion at the conclusion of the case, we presume that the motion is denied. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 13, citing State ex rel. V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998). Therefore, we presume that the trial court denied Gina’s motions.

15. settlement agreement and consent decree without reserving the right to appeal, she cannot

now object to the trial court’s judgment entry on that basis. Sponseller, 110 Ohio St. at

399, 144 N.E. 48; Kerwin, 6th Dist. Lucas No. L-04-1002, 2004-Ohio-4676, at ¶ 8.

{¶ 25} Because there is no evidence in the record showing that the trial court

violated the court’s local rules or otherwise improperly signed the proposed final entry,

the temporary order merged into the final decree, and Gina waived her right to appeal this

issue, we find that Gina’s first assignment of error is not well-taken.

D. The trial court properly awarded spousal support.

{¶ 26} Gina’s fourth, fifth, sixth, seventh, eighth, and ninth assignments of error

address issues related to the trial court’s award of spousal support. With the exception of

a clerical error in the support schedule, we find that the trial court did not abuse its

discretion in issuing the spousal support award.

1. Standard of review

{¶ 27} We review a trial court’s judgment awarding spousal support for abuse of

discretion. King v. King, 6th Dist. Erie No. E-17-072, 2019-Ohio-1561, ¶ 8, citing

Kunkle v. Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990); and Bowen v. Bowen, 132

Ohio App.3d 616, 626, 725 N.E.2d 1165 (9th Dist.1999). Abuse of discretion means that

the trial court’s decision was unreasonable, arbitrary, or unconscionable. State ex rel.

Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d 200 (1996). An unreasonable

decision is one that lacks sound reasoning to support the decision. Hageman v. Bryan

City Schools, 10th Dist. Franklin No. 17AP-742, 2019-Ohio-223, ¶ 13, citing AAAA

16. Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,

161, 553 N.E.2d 597 (1990). “An arbitrary decision is one that lacks adequate

determining principle and is not governed by any fixed rules or standard.” Id., citing

Porter, Wright, Morris & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist. Franklin No.

08AP-69, 2008-Ohio-3567, ¶ 11. And an unconscionable decision is one “that affronts

the sense of justice, decency, or reasonableness.” Id.

{¶ 28} Although a trial court has broad discretion in awarding spousal support, its

determination of whether spousal support is “appropriate and reasonable,” and the nature,

amount, duration, and terms of payment of spousal support is controlled by the factors in

R.C. 3105.18(C)(1). King at ¶ 8, citing Crites v. Crites, 6th Dist. Wood Nos. WD-04-034

and WD-04-042, 2004-Ohio-6162, ¶ 26-27; and Schultz v. Schultz, 110 Ohio App.3d 715,

724, 675 N.E.2d 55 (10th Dist.1996). A trial court is not required to articulate each R.C.

3105.18(C)(1) factor in its decision, but the court’s judgment entry must show that it

considered all the “relevant factors.” Id., citing Stockman v. Stockman, 6th Dist. Lucas

No. L-00-1053, 2000 WL 1838937, *3 (Dec. 15, 2000). The trial court’s judgment entry

must also “contain sufficient detail to enable a reviewing court to determine that the

spousal support award is ‘fair, equitable and in accordance with the law.’” Crites at ¶ 27,

quoting Kaechele v. Kaechele, 35 Ohio St.3d 93, 97, 518 N.E.2d 1197 (1988).

{¶ 29} Under R.C. 3105.18(C)(1), when determining whether awarding spousal

support is “appropriate and reasonable” and deciding the terms of any award, the trial

court is required to consider:

17. (a) The income of the parties, from all sources, including, but not

limited to, income derived from property divided, disbursed, or distributed

[as part of the divorce proceedings] under section 3105.171 of the Revised

Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional conditions of

the parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) The extent to which it would be inappropriate for a party, because

that party will be custodian of a minor child of the marriage, to seek

employment outside the home;

(g) The standard of living of the parties established during the

marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not

limited to any court-ordered payments by the parties;

(j) The contribution of each party to the education, training, or

earning ability of the other party, including, but not limited to, any party’s

contribution to the acquisition of a professional degree of the other party;

18. (k) The time and expense necessary for the spouse who is seeking

spousal support to acquire education, training, or job experience so that the

spouse will be qualified to obtain appropriate employment, provided the

education, training, or job experience, and employment is, in fact, sought;

(l) The tax consequences, for each party, of an award of spousal

support;

(m) The lost income production capacity of either party that resulted

from that party’s marital responsibilities;

(n) Any other factor that the court expressly finds to be relevant and

equitable.

{¶ 30} The trial court cannot consider any single R.C. 3105.18(C) factor in

isolation. Kaechele at paragraph one of the syllabus. Rather, the court must consider all

of the statutory factors with the goal of reaching an equitable result because a spousal

support award cannot be determined by resorting to a mathematical formula. Pearson v.

Pearson, 6th Dist. Wood No. WD-21-066, 2022-Ohio-642, ¶ 12, citing Kaechele at 96.

{¶ 31} With this framework in mind, we turn to Gina’s assignments of error.

19. 2. The trial court considered Gina’s contribution to Benjamin’s residency training.

{¶ 32} In her fourth assignment of error, Gina contends that the trial court abused

its discretion under R.C. 3105.18(C)(1) by not considering the contributions she made to

Benjamin during his surgical residencies. Benjamin responds that the trial court correctly

concluded that Gina did not contribute to him completing his residency training.

{¶ 33} We find that the trial court acted within its discretion when it determined

under R.C. 3105.18(C)(1)(j) that “[t]here was no evidence that Gina’s earnings * * *

subsidized Benjamin’s training to become an orthopedic surgeon.” Courts generally

require more evidence of support than simply paying bills while the other spouse pursues

education or training. See, e.g., Budd v. Budd, 9th Dist. Summit No. 25469, 2011-Ohio-

565 (husband contributed to wife’s education by helping with childcare, paying her

tuition and book fees, and transporting her to and from classes); Addington v. Addington,

4th Dist. Scioto No. 04CA2951, 2004-Ohio-6931 (parties sold their business and home

and moved so that husband could go to medical school, and wife was sole wage-earner

while husband was in school); and compare, e.g., Nieman v. Nieman, 3d Dist. Allen No.

1-16-22, 2016-Ohio-7169 (affirming trial court’s finding that neither spouse contributed

to the other’s education because both had finished school and husband was preparing to

start his residency when they married); Murphy v. Murphy, 2d Dist. Montgomery No.

15693, 1996 WL 629522, *4 (Nov. 1, 1996) (Although husband attended medical school

and received his medical degree during the marriage, there was no evidence in the record

20. that “one spouse has forgone educational or employment opportunities in order to provide

financial support to the other spouse * * *.”).

{¶ 34} Gina testified that she and Benjamin married after Benjamin finished

medical school, while he was in his first residency. Gina had bachelor’s and master’s

degrees and was a licensed social worker when they married. Although Gina worked

full-time and “[p]aid bills” during the seven years that Benjamin was completing his

surgical residencies, she specifically said that she “didn’t pay for [Benjamin’s] education,

[she] just paid the bills.” There was no other testimony regarding Gina’s contribution to

Benjamin’s education and training, and Gina did not claim that Benjamin’s residencies

were unpaid or that he made no contributions to the household during that time. Further,

rather than failing to consider any contribution that Gina made to Benjamin’s training and

education, the trial court concluded (based on the scant testimony that Gina gave on the

issue) that Gina failed to show that her employment and income for the first seven years

of the parties’ marriage led to Benjamin becoming an orthopedic surgeon. It was not

unreasonable, arbitrary, or unconscionable for the trial court to do so. Therefore, Gina’s

fourth assignment of error is not well-taken.

3. The trial court’s spousal support award was reasonable and appropriate.

{¶ 35} In her fifth, sixth, seventh, eighth, and ninth assignments of error, Gina

argues that the trial court abused its discretion by (1) only awarding her $13,000 per

month in support, (2) reducing her monthly support award over time, (3) not requiring

Benjamin to pay for her insurance, (4) not ordering Benjamin to pay support through

21. bank withholding, and (5) making a clerical error in the support schedule included in the

final divorce decree.

{¶ 36} Benjamin responds that (1) the trial court considered all of the factors in

R.C. 3105.18(C)(1) in fashioning the support order, and it acted within its discretion in

doing so; (2) Gina never asked for Benjamin to be responsible for her insurance after the

divorce, and the support award should be sufficient to allow Gina to obtain her own

insurance; (3) the trial court had the discretion to allow Benjamin to make support

payments directly to Gina; and (4) Gina should have sought to have the clerical error

modified by the trial court under Civ.R. 60(A) rather than assigning it as error on appeal.

a. The amount of the spousal support award is reasonable and appropriate.

{¶ 37} In her seventh assignment of error, Gina argues that the trial court acted

unreasonably when it awarded her only $13,000 per month in spousal support—far short

of the $33,000 per month that she requested. She contends that she presented the trial

court with “extensive and persuasive Documentation of [her] Monthly Expenses” that

justified a spousal support award of $33,000 per month, and argues $13,000 per month is

inadequate “[c]onsidering the Standard of Living of the parties, and the Abandonment of

[Gina] by [Benjamin] * * *.” Benjamin responds that the trial court “specifically

evaluated each and every factor under R.C. 3105.18(C)(1) in making the spousal support

award, [and] provid[ed] ample reasoning and explanation of the specifics of each factor

in this case[,]” which, he contends, shows that the trial court’s spousal support award was

not erroneous or unreasonable.

22. {¶ 38} When an appellate court reviews a trial court’s spousal support award, it is

important to remember that “[a] trial court must not base its determination [under R.C.

3105.18(C)] upon any one factor taken in isolation. * * * ‘[A]ll of the statutory factors

must be considered, with the goal of reaching an equitable result.’” (Second brackets

sic.) Galloway v. Galloway, 6th Dist. Erie No. E-21-043, 2023-Ohio-29, ¶ 51, quoting

Pearson, 6th Dist. Wood No. WD-21-066, 2022-Ohio-642, at ¶ 12; and citing Organ v.

Organ, 2014-Ohio-3474, 17 N.E.3d 1192, ¶ 15 (9th Dist.); Kaechele, 35 Ohio St.3d 93,

518 N.E.2d 1197, at paragraph one of the syllabus; and King, 6th Dist. Erie No. E-17-

072, 2019-Ohio-1561, at ¶ 8-9.

{¶ 39} Gina’s argument on appeal relies solely on the parties’ standard of living

during the marriage.4 However, neither party is guaranteed the same standard of living

post-divorce, and the trial court is not required to apply an equal standard of living to the

parties; all that the trial court is required to do is consider all of the factors in R.C.

3105.18(C)(1) and fashion an award that is appropriate and reasonable. Dunham v.

Dunham, 171 Ohio App.3d 147, 2007-Ohio-1167, 870 N.E.2d 168, ¶ 76-77 (10th Dist.).

{¶ 40} In its decision, the trial court made the following findings relative to the

factors in R.C. 3105.18(C)(1):

4 Although Gina also refers to Benjamin’s “abandonment” of her, the trial court expressly determined that spousal support’s “purpose is not to punish a spouse[,]” and that “Benjamin’s infidelity * * * was not a relevant and equitable factor to be considered” under the “[a]ny other factor” provision of R.C. 3105.18(C)(1)(n). This finding was not an abuse of the trial court’s discretion.

23. • (C)(1)(a) – The income of the parties, from all sources, including, but not

limited to, income derived from property divided, disbursed, or distributed

pursuant to the divorce.

The trial court determined that Gina would have $430,000 in income

from the division of marital property and would be “relatively debt free.”

Benjamin would have his salary from the surgical practice and income from

the rental property, which was a gross amount of approximately $874,000 in

2021. The court said that it would “primarily consider Benjamin’s earnings

ability as an orthopedic surgeon” for spousal support purposes. Benjamin

planned to incur around $500,000 in unsecured debt to fulfill his settlement

agreement with Gina. The parties agreed that their income from the marital

property was equal.

• (C)(1)(b) – The relative earning abilities of the parties.

The court found that Benjamin, an orthopedic surgeon, had gross

income that averaged nearly $800,000 over the three years before the divorce

trial, but that his “take home pay” from his surgical practice was closer to

$490,000. Benjamin’s contract with his current employer was set to expire in

April 2022, but would automatically extend for 1-year terms unless either party

terminated it. Benjamin’s employer was affiliated with St. Luke’s Hospital,

which had recently been acquired by a new owner, but any impact that might

have on Benjamin’s income was “purely speculative.”

24. The court also found that Gina has two master’s degrees and can get her

Ph.D. in social work from the University of Michigan after four years of study.

She worked full-time in the social work field from 1990 to 1997, but had not

worked in the last 25 years. Neither party presented evidence regarding the

potential earnings of someone with either a master’s degree or a Ph.D. in social

work.

• (C)(1)(c) – The ages and the physical, mental, and emotional conditions of the

parties.

Both parties were born in 1963. There was no evidence regarding

Gina’s physical health, but she had suffered anxiety and depression when she

and Benjamin separated. Her mental health was improving. There was no

evidence regarding Benjamin’s physical or mental health.

• (C)(1)(d) – The retirement benefits of the parties.

Each party would have approximately $500,000 in a retirement fund.

• (C)(1)(e) – The duration of the marriage.

The parties had been married for over 31 years at the time of the trial.

• (C)(1)(f) – The extent to which it would be inappropriate for a party, because

that party will be custodian of a minor child of the marriage, to seek

employment outside the home.

This factor is inapplicable.

25. • (C)(1)(g) – The standard of living of the parties established during the

marriage.

The trial court described the parties’ standard of living as “extravagant.”

They lived in a large home in Perrysburg, and recently sold their second home

in Florida for $875,000. Both parties had several cars, including Porches.

Gina testified that their monthly expenses exceeded $33,000.

• (C)(1)(h) – The relative extent of education of the parties.

The court reiterated that Gina has two master’s degrees, and Benjamin

has a medical degree and is an orthopedic surgeon.

• (C)(1)(i) – The relative assets and liabilities of the parties, including but not

limited to any court-ordered payments by the parties.

The court found that the parties divided their marital assets equitably,

and neither party had any separate property.

• (C)(1)(j) – The contribution of each party to the education, training, or earning

ability of the other party, including, but not limited to, any party’s contribution

to the acquisition of a professional degree of the other party.

Gina and Benjamin married after Benjamin finished medical school.

Although Gina worked full-time for the first seven years of their marriage, the

court found that “[t]here was no evidence that Gina’s earnings from 1990 to

1997 subsidized Benjamin’s training to become an orthopedic surgeon.”

26. • (C)(1)(k) – The time and expense necessary for the spouse who is seeking

spousal support to acquire education, training, or job experience so that the

spouse will be qualified to obtain appropriate employment, provided the

education, training, or job experience, and employment is, in fact, sought.

The court reiterated that Gina has two master’s degrees, and had

testified that she could obtain her Ph.D. from the University of Michigan in

four years.

• (C)(1)(l) – The tax consequences, for each party, of an award of spousal

support.

The parties did not present evidence on this factor.

• (C)(1)(m) – The lost income production capacity of either party that resulted

from that party’s marital responsibilities.

Gina left the workforce in 1997 when the parties’ youngest child was

born, and had not returned to work after the children were emancipated.

• (C)(1)(n) – Any other factor that the court expressly finds to be relevant and

Although Gina sought to have Benjamin’s “infidelity” recognized under

this subsection, the court “found that was not a relevant and equitable factor to

be considered.”

{¶ 41} As demonstrated by the trial court’s spousal support decision, the court

took into account the parties’ “extravagant standard of living” during the marriage—

27. along with every other factor in R.C. 3105.18(C)(1)—which is all that it was required to

do. The trial court also had before it the temporary support order, in which the magistrate

found—based on Gina’s testimony—that Gina and Benjamin had been living above their

means while they were married. And the court took into account the parties’ incomes,

earning potential, relative financial positions following the division of marital property,

health, ages, and Gina’s need and desire for further education. In light of these facts, and

when all of the facts and factors are considered together, there is no evidence that the trial

court acted unreasonably, arbitrarily, or unconscionably in setting the amount of spousal

support. Accordingly, Gina’s seventh assignment of error is not well-taken.

b. The trial court properly reduced Gina’s spousal support over time.

{¶ 42} In her sixth assignment of error, Gina argues that the trial court abused its

discretion by reducing the amount of spousal support over time. She contends that it was

unreasonable for the trial court to reduce the spousal support award because the award

does not cover her monthly expenses, it is “questionable” that she can retrain for gainful

employment “[a]t her age,” retraining would be expensive, and there is no guarantee that

she could find “employment or significant pay, after being out of the workforce for 25

years * * *.” Benjamin again argues that the trial court considered all of the statutory

factors in fashioning the spousal support award, so its decision to reduce the award over

time was not an abuse of discretion.

{¶ 43} The crux of Gina’s argument under this assignment of error is that the trial

court did not give her enough spousal support to meet her needs, and further reducing that

28. amount is unreasonable. But a spousal support award is not based on need; it is based on

what is reasonable and appropriate in light of the factors in R.C. 3105.18(C)(1). Basista

v. Basista, 6th Dist. Wood No. WD-14-076, 2016-Ohio-146, ¶ 28, citing Organ, 2014-

Ohio-3474, 17 N.E.3d 1192, at ¶ 14; and Heslep v. Heslep, 7th Dist. Monroe No. 825,

2000 WL 818909, *4 (June 14, 2000). And the trial court explained that it was awarding

Gina $13,000 per month for the first four years to give her time to earn her Ph.D., after

which she “will have the ability to earn income.” Then, Gina will receive $10,000 per

month for ten years, at which time Benjamin will be 72 years old and “could reasonably

reduce his workload or retire.” From that point on, Gina will receive $6,000 per month

indefinitely. The court also retained jurisdiction to modify the amount and duration of

the spousal support award, so either party can seek to change the amount of the award if

their circumstances change.

{¶ 44} The trial court’s broad discretion over spousal support awards encompasses

the ability to craft an award that changes over time based on the anticipated financial

situations of the parties. Arthur v. Arthur, 130 Ohio App.3d 398, 409-410, 720 N.E.2d

176 (5th Dist.1998). The trial court’s explanation for structuring the support the way it

did shows that the court considered the parties’ anticipated financial situations over the

coming years and structured a reasonable and appropriate award for those anticipated

circumstances. The court also retained jurisdiction over spousal support so that either

party can seek a modification, if necessary. This was not unreasonable, arbitrary, or

unconscionable. Gina’s sixth assignment of error is not well-taken.

29. c. The trial court did not abuse its discretion by failing to order Benjamin to pay Gina’s insurance premiums.

{¶ 45} In her fifth assignment of error, Gina argues (without citing any law) that

she testified to the cost of her health insurance and “[c]onsidering [Benjamin] has an

Annual Gross Income in excess of $900,000, it is unreasonable, and an Error for the

Court not to require him to pay for [Gina’s] Health, Dental, and Optical Insurance.”

Benjamin responds that Gina did not ask the court to order Benjamin to pay for her

insurance, the spousal support award should cover the costs of her insurance, and because

the final decree does not address insurance, there is a presumption that each party is

responsible for their own insurance costs after a divorce.

{¶ 46} Although a person who carries health insurance that covers their spouse is

prohibited from terminating the spouse’s health insurance coverage while a divorce is

pending, R.C. 3105.71(A), nothing in the statute requires the person to maintain the

spouse’s coverage after the divorce is finalized. Whether to require someone to maintain

health insurance for their spouse after the divorce is “firmly within the discretionary

power of the domestic relations court.” Roskwitalski v. Roskwitalski, 5th Dist. Licking

No. 94 CA 103, 1995 WL 498124, *3 (Aug. 10, 1995). “Once the court grants a divorce,

we must assume in the absence of intent to the contrary, that each party becomes

responsible for carrying their own health insurance, because the divorce decree

essentially permits the parties to go their own way, with all the concomitant

responsibilities that attach to those who are no longer married.” Ianiro v. Pastis, 8th Dist.

30. Cuyahoga No. 83368, 2004-Ohio-2987, ¶ 26. In other words, unless the divorce decree

specifically orders one party to carry the other’s insurance, the parties are each

responsible for their own insurance after they are divorced.

{¶ 47} In this case, the trial court had before it Gina’s monthly expenses for health

insurance premiums, and we presume that the court considered those premiums along

with the rest of Gina’s living expenses when it determined how much spousal support to

award. Thus, we also presume that the court intended for Gina to pay for her insurance

out of the spousal support award. The closest Gina came to asking the court to order

Benjamin to pay for her insurance was when she said on direct that “I think that he

should have to give me support for life including health insurance * * *.” But Gina’s

attorney never asked the court in any filings or during the trial to order that Benjamin pay

for Gina’s insurance, and the parties did not include insurance payments in their

settlement agreement. Under these circumstances, we do not believe that the trial court

abused its discretion by failing to order Benjamin to pay for Gina’s health insurance.

Gina’s fifth assignment of error is not well-taken.

d. The court properly allowed Benjamin to make direct support payments.

{¶ 48} In her ninth assignment of error, Gina argues that the trial court should

have ordered Benjamin to make his support payments through bank withholding because

Benjamin violated the temporary support order and owes arrearages under the temporary

order, and the court “did not resolve the issue of non-compliance by [Benjamin] with the

Temporary Support Order.” Benjamin responds that the trial court was permitted to order

31. direct payments, and Benjamin was never found in contempt of any court orders, so the

trial court did not abuse its discretion by ordering direct payments.

{¶ 49} Direct payments of support are authorized by R.C. 3121.441(A), which

provides:

Notwithstanding the provisions * * * of the Revised Code providing

for the office of child support in the department of job and family services

to collect, withhold, or deduct spousal support, when a court * * * issues or

modifies an order requiring an obligor to pay spousal support * * *, the

court may permit the obligor to make the spousal support payments directly

to the obligee instead of to the office if the obligee and the obligor have no

minor children born as a result of their marriage and the obligee has not

assigned the spousal support amounts to the department * * *.

Whether to permit an obligor to make direct spousal support payments “is clearly

discretionary.” Dingey v. Dingey, 5th Dist. Muskingum No. CT2020-0006, 2020-Ohio-

5340, ¶ 38; Allen v. Allen, 2022-Ohio-3198, 196 N.E.3d 368, ¶ 84 (11th Dist.). And there

is no requirement that the court “conduct an analysis of an obligor’s possible failure to

comply with a direct payment order” before deciding whether to allow direct payments.

Dingey at ¶ 38.

{¶ 50} Gina’s only argument under this assignment of error is that Benjamin failed

to comply with the temporary order and still owes arrearages under the temporary order.

As we have already discussed, any issues that Gina had with the temporary orders are

32. now moot because they were not separately reduced to judgment or preserved in the final

decree. Row, 6th Dist. Lucas No. L-21-1231, 2022-Ohio-2525, at ¶ 54. And nothing in

the record indicates that the trial court acted unreasonably, arbitrarily, or unconscionably

by allowing Benjamin to make direct support payments. Therefore, Gina’s ninth

assignment of error is not well-taken.

e. The trial court made a clerical error in the spousal support schedule.

{¶ 51} In her final assignment of error related to spousal support, Gina argues that

the trial court made an error in the support schedule it included in the final divorce

decree. She contends that the trial court has the year when her support award reduces to

$6,000 per month wrong; the court listed 2032 as the date of the change, which is ten

years after the support order went into effect, not 14 years later, as the court ordered

earlier in its decision. Benjamin argues that Gina should have filed a motion to correct

the error in the trial court, but because she did not, we should overrule this assignment of

error.

{¶ 52} Although a trial court has the authority under Civ.R. 60(A) to correct a

clerical mistake—i.e., “a mistake or omission, mechanical in nature and apparent on the

record which does not involve a legal decision or judgment[,]” State ex rel. Litty v.

Leskovyansky, 77 Ohio St.3d 97, 100, 671 N.E.2d 236 (1996)—this is not the exclusive

remedy for clerical errors. Nothing in Civ.R. 60(A) deprives an appellate court of its

ability to “[r]eview and affirm, modify, or reverse the judgment or final order

appealed[.]” App.R. 12(A)(1)(a). In fact, “App.R. 12(A)(1)(a) and 12(B) empower this

33. court to modify judgments as a matter of law.” Nastasi v. Nastasi, 11th Dist. Trumbull

No. 94-T-5023, 1994 WL 721611, *1 (Dec. 16, 1994). On that basis, we find Benjamin’s

argument that Gina missed her opportunity to correct the clerical error in the final decree

unavailing.

{¶ 53} Turning to the error in the decree, we agree with Gina that the trial court

erred when it entered the date on which Gina’s spousal support decreases to $6,000. In

its decision following the divorce hearing, the trial court clearly stated in its analysis that

it had decided to award Gina $13,000 per month for four years, followed by $10,000 per

month for ten years, and that the final reduction to $6,000 per month was to happen after

14 years, when Benjamin is 72 years old. However, in its orders, the court wrote:

IT IS ORDERED that on May 1, 2022 and on the first day of each

month for the following 48 months defendant Benjamin Salpietro shall pay

to plaintiff Gina Salpietro $13,000 as spousal support; that on May 1, 2026

and on the first day of each month for the following 120 months defendant

Benjamin Salpietro shall pay to plaintiff Gina Salpietro $10,000 as spousal

support; and that on May 1, 2032 and on the first day every ensuing month

thereafter defendant Benjamin Salpietro shall pay to plaintiff Gina Salpietro

(Emphasis added.) Rather than reducing the support order to $6,000 after 14 years, the

court’s order reduced the award to $6,000 after only 10 years. The error was carried over

into the final divorce decree.

34. {¶ 54} It is clear from the record that the trial court intended for Gina to receive

spousal support of no less than $10,000 for 14 years—i.e., until May 1, 2036. Because

the court’s spousal support decision and final divorce decree contain a typographical

error, we hereby modify the spousal support award in the final decree to reflect the trial

court’s decision. The spousal support order in the final decree, as modified by this

decision, should read:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that

pursuant to Judge Kelsey’s decision that on May 1, 2022, and on the first

day of each month for the following 48 months, Husband shall pay to Wife

$13,000.00 as spousal support; that on May l, 2026, and on the first day of

each month for the following 120 months, Husband shall pay to Wife

$10,000.00 as spousal support; and that on May 1, 2036, and on the first

day of every ensuing month thereafter, Husband shall pay to Wife

$6,000.00 as spousal support.

(Modifications bolded and underlined.)

{¶ 55} Gina’s eighth assignment of error is well-taken.

4. The trial court’s fee award was fair and equitable.

{¶ 56} In her tenth and final assignment of error, Gina argues that the trial court’s

attorney fees award was inadequate because the court only awarded her $35,000, rather

than the $65,000 that she requested. She claims that the award was unreasonable because

she “has not worked in 25 years and is in complete economic reliance upon [Benjamin’s]

35. income.” She also contends that her attorney’s bill “shows the major amount of work

necessary to prepare this case for Trial, and the lengthy Exhibits, including assembling all

of the expenses of the parties to establish their Standard of Living.” Benjamin responds

that the trial court considered all of the statutory factors related to an attorney fee award,

and the award was appropriate in light of Gina’s and her attorney’s litigation tactics that

added delay and expense to the proceedings.

{¶ 57} In divorce cases, an award of attorney fees is controlled by R.C.

3105.73(A). Under the statue, the trial court “may award all or part of reasonable

attorney’s fees and litigation expenses to either party if the court finds the award

equitable.” Before awarding fees, the trial court may consider (1) the parties’ marital

assets and income, (2) any temporary spousal support ordered, (3) the parties’ conduct,

and (4) “any other relevant factors the court deems appropriate.” Id. “An award of

attorney fees must be fair, equitable, and serve the ends of justice.” Steinle v. Steinle,

2018-Ohio-3985, 120 N.E.3d 478, ¶ 41 (6th Dist.), citing Garritano v. Pacella, 6th Dist.

Lucas No. L-07-1171, 2009-Ohio-2928, ¶ 101; and Bowen, 132 Ohio App.3d at 642, 725

N.E.2d 1165. We review a trial court’s award of fees for an abuse of discretion. Row,

6th Dist. Lucas No. L-21-1231, 2022-Ohio-2525, at ¶ 58, citing Kim v. Kim, 2020-Ohio-

22, 150 N.E.3d 1229, ¶ 47 (9th Dist.).

{¶ 58} In determining the issue of attorney fees, the trial court explicitly

considered the factors in R.C. 3105.73(A). The court noted:

36. that Gina unnecessarily added [Benjamin’s businesses] as third party

defendants; that she objected unnecessarily to the court’s standard

temporary restraining order; that she sought, without much basis in law, to

have many of Benjamin’s expenditures characterized as financial

misconduct, R.C. 3105.171(E)(4); and that she sought, without much basis

in law, to argue that Benjamin should be punished through additional

spousal support awards for his “adulterous” conduct prior to the divorce.

The court also noted that Benjamin had already been ordered to pay $10,000 of Gina’s

legal fees. Based on this information, the trial court ordered Benjamin to pay an

additional $25,000 of Gina’s legal fees, for a total of $35,000.

{¶ 59} Our review of the record shows that the trial court did not abuse its

discretion in awarding attorney fees. The court considered the statutory factors and

recognized that Gina and her attorney were responsible for some of the fees because they

“unnecessarily” added parties and filed objections and pursued dubious legal strategies

that were “without much basis in law * * *.” Gina’s trial testimony also revealed that she

had paid her attorney approximately $60,000 by the time of trial, some of which was paid

out of marital funds that the court’s temporary support order earmarked for other joint

expenses. See Baum v. Perry-Baum, 6th Dist. Wood No. WD-18-085, 2019-Ohio-3923,

¶ 31-32 (finding that the trial court did not abuse its discretion in awarding attorney fees

to wife when, among other things, wife was responsible for some of the delay in the case

and paid her attorneys from marital funds).

37. {¶ 60} Because the trial court’s fee award was fair and equitable, and the court did

not abuse its discretion in arriving at the award, we find that Gina’s tenth assignment of

error is not well-taken.

III. Conclusion

{¶ 61} Because the trial court properly signed the proposed judgment entry and

did not abuse its discretion in awarding spousal support or attorney fees, the April 5,

2022 judgment of the Wood County Court of Common Pleas, Domestic Relations

Division, is affirmed with the modification of “May 1, 2032” to “May 1, 2036” in the

spousal support schedule. Gina is ordered to pay the costs of this appeal pursuant to

App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowsi, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ Christine E. Mayle, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

38.