[Cite as Wojanowski v. Wojanowski, 2014-Ohio-697.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99751
DEBORAH WOJANOWSKI PLAINTIFF-APPELLEE
vs.
PETER WOJANOWSKI DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-339379
BEFORE: McCormack, J., Boyle, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: February 27, 2014 ATTORNEYS FOR APPELLANT
Andrew J. Simon James L. Simon Freedom Square II, Suite 165 6000 Freedom Square Drive Independence, OH 44131
ATTORNEYS FOR APPELLEE
Richard A. Rabb Kaitlyn D. Arthurs McCarthy, Lebit, Crystal & Liffman 101 West Prospect Avenue Suite 1800 Cleveland, OH 44115 TIM McCORMACK, J.:
{¶1} Peter Wojanowski (“Husband” hereafter) appeals the domestic relations
court’s judgment entry of divorce. He claims the court abused its discretion in dividing the
parties’ property, awarding spousal support, and granting attorney fees. After a careful
review of the record and applicable law, we affirm the trial court’s judgment in part,
reverse in part, and remand the matter for further proceedings consistent with the opinion.
Procedural History
{¶2} The Wojanowskis were married in 1987. They have a daughter, who was
born in 1992 and emancipated when she graduated from high school in June 2011. In
February 2010, Deborah Wojanowski (“Wife” hereafter), age 52, filed for divorce from her
husband, age 57. In November 2011, she dismissed the action but refiled it days later.
{¶3} Husband has been a financial broker since 1989. He was employed by AG
Edwards, and then by Smith Barney, before joining his current employer, Merrill Lynch, in
2005. Wife had a degree in business administration but had not worked outside the home
since 1992, when the couple moved from California to Cleveland. Her only employment
since 1992 was selling Mary Kay cosmetic products for a brief period of time.
{¶4} Wife has an assortment of physical health problems. She suffered chronic
pains in her ankles, knees, and back, and had undergone multiple operations to treat her
back pain. She also suffered pains in her leg “associated with a diagnosis of MS,” as noted
by a neurologist. One doctor had told her that her blood work revealed lupus and rheumatoid arthritis. In addition to these physical ailments, she also suffers from
depression and anxiety. A letter from her doctor indicated that she was incapable of
working. She made some efforts, however, to improve her job skills since she filed for
divorce. Husband also has certain medical problems, but they did not seem to impact his
ability to work.
{¶5} A five-day hearing was held by a magistrate over the divorce complaint. In a
36-page single-spaced decision, the magistrate divided the parties’ property, awarded
spousal support, and granted attorney fees sought by Wife. The trial court adopted the
magistrate’s decision without modifications.
{¶6} Husband now appeals, raising three assignments for our review. The three
assignments of error concern (1) property division, (2) spousal support, and (3) attorney
fees, respectively. We review these assignments with the recognition that, as a general
rule, an appellate court reviews a trial court’s determinations in a domestic relations case
for an abuse of discretion. Kehoe v. Kehoe, 2012-Ohio-3357, 974 N.E.2d 1229 (8th Dist.).
First Assignment of Error: Property Division
{¶7} Under the first assignment of error, Husband claims the trial court (1) made
erroneous divisions of his potential future income based on his “book of business,” (2)
failed to divide the proceeds of a sale of the marital residence, (3) made mathematical
errors in dividing the parties’ bank accounts, (4) failed to valuate the parties’ personal
property before ordering each party to retain property in their respective possessions, (5)
erred in awarding a life insurance policy to Wife, (6) erred in granting Wife half of potential financial awards he could receive from Merrill Lynch, and (7) erred in granting
two Merrill Lynch accounts to their daughter.
{¶8} In a divorce proceeding, the division of marital and separate property is
governed by R.C. 3105.171. The statute directs a trial court to determine what constitutes
marital property and separate property, and to “divide the marital and separate property
equitably between the spouses.” R.C. 3105.171(B).
{¶9} Trial courts are vested with broad discretion in determining the appropriate
scope of property awards in a divorce action. Berish v. Berish, 69 Ohio St.2d 318, 319,
432 N.E.2d 183 (1982). Although its discretion is not unlimited, the trial court has
authority to do what is equitable, and its judgment should not be reversed unless it has
abused its discretion. Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981). An
appellate court will not disturb the trial court’s distribution of marital property absent an
abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028. It has long
been established that broad discretion is vested in the trial court to determine an equitable
property division, because “the different facts and circumstances which each divorce case
presents to a trial court requires that a trial judge be given wide latitude in dividing property
between the parties.” Koegel v. Koegel, 69 Ohio St.2d 355, 357, 432 N.E.2d 355 (1982).
{¶10} In this case, Husband claims that the trial court made a multitude of errors in
dividing the parties’ property. In the following, we address each of the alleged errors in
turn.
1. Marital Residence {¶11} Husband argues the trial court erred in failing to divide the proceeds of the
sale of the marital home. The marital home was appraised at $310,000 but subject to a
mortgage of $194,227.39 as of August 1, 2012. The trial court, adopting the magistrate’s
decision, ordered the marital home to be sold and gave detailed instructions regarding how
the home should be listed and how offers should be accepted. However, the trial court,
like the magistrate, did not explicitly divide or distribute the proceeds, apparently
inadvertently.
{¶12} Pursuant to R.C. 3105.171, the trial court has a duty to determine what
constitutes marital property and what constitutes separate property, and, upon making such
a determination, divide the marital and separate property equitably between the spouses.
While determining the marital residence to be marital property and ordering its sale, the
trial court here failed to divide the proceeds as required by the statute in its judgment entry.
{¶13} Wife claims Husband waived the error because he failed to challenge the
magistrate’s error in his objections to the magistrate’s decision and therefore waived the
error. Our review of the objections, however, reflects that Husband did challenge the
magistrate’s treatment of the marital residence, complaining that Wife failed to sell the
house during the divorce proceedings to his detriment, and claiming the magistrate should
have penalized her for her lack of efforts. Although Husband’s objections did not
specifically state the magistrate should have expressly divided the proceeds in the eventual
sale of the home, we consider Husband’s objections regarding the marital time sufficiently preserved the error for appeal purposes. Upon remand, the trial court must follow the
mandate of the statute and make an equitable division of this marital asset.
2. Catholic Credit Union and PNC Bank Accounts
{¶14} Apparently the court made some calculation errors in dividing the Ohio
Catholic Credit Union account and the PNC money market account. Regarding the Ohio
Catholic Credit Union account, the magistrate found a deposit of $90,134.98 into that
account in October 2010 to be a payment from Merrill Lynch and a marital property. At
the time of trial, only $66,831.34 remained. The magistrate equally divided the remaining
amount of $66,831.34. Regarding the amount that had been expended prior to the trial,
$23,303.64, the magistrate found Husband had withdrawn a portion of it, $9,765.93, to pay
for the monthly mortgage, but had taken the remaining ($23,303.64 – $9,765.93 =
$13,537.71) for non-marital purposes. (The magistrate made an arithmetic error and stated
this amount was $13,259.44 when in fact it was $13,537.71.) The magistrate properly
determined that Wife should be entitled to half of the amount taken by the Husband from
this account for non-marital purposes, but went on to state, in error, that Wife is entitled to
$13,259.44, which represents the entire amount. The trial court adopted the magistrate’s
erroneous calculations.
{¶15} Similarly, there was a calculation error in the magistrate’s division of the PNC
money market account. The magistrate found Husband had withdrawn $10,573 and Wife
had withdrawn $2,000.78, respectively, from this account for non-marital purposes; by the
end of the divorce proceedings, $50,512.37 remained on the account. The magistrate awarded each party half of the remaining amount. However, in an attempt to equalize the
parties’ share of this account and to account for the funds previously withdrawn by the
parties for non-marital purposes, the magistrate, in an apparent error, awarded the entire
amount of $10,573 to Wife and the entire amount of $2,000.78 to Husband. Instead, the
magistrate should have awarded half of $10,573 to Wife and half of $2,000.78 to Husband.
Based on the magistrate’s erroneous division, the trial court improperly awarded Wife
$33,828.40 regarding this PNC account. Upon remand, the trial court should correct these
calculation errors.
{¶16} On appeal, Wife claims this court has no authority to correct the errors
because “mathematical” errors can only be corrected by the trial court upon a Civ.R. 60(A)
motion. She cites Westhoven v. Westhoven, 6th Dist. Ottawa No. OT-10-037,
2011-Ohio-3610, and Krysa v. Sieber, 113 Ohio App.3d 572, 681 N.E.2d 949 (8th
Dist.1996), for the proposition that such errors can only be corrected by the trial court upon
a Civ.R. 60(A) motion.
{¶17} Neither case stands for the proposition. Civ.R. 60(A) itself states that
“[c]lerical mistakes in judgments * * * and errors therein arising from oversight or
omission may be corrected by the court at any time on its own initiative or on the motion of
any party and after such notice, if any, as the court orders.” (Emphasis added.) The rule
permits a correction of clerical errors by the trial court, but does not prohibit a reviewing
court from correcting such errors. As the Sixth District itself explained in Westhoven,
Civ.R. 60(A) permits a trial court to modify a judgment if it contains a clerical error but not a substantive error. Id. at ¶ 12. Krysa involved not Civ.R. 60(A) but rather Civ.R. 60(B)
(“Mistakes; Inadvertence; Excusable neglect; Newly discovered evidence; Fraud”) and held
that the trial court properly granted a Civ.R. 60(B)(1) motion filed by a party for relief from
judgment on the grounds of excusable neglect. Neither case supports the claim that the
calculation errors can only be corrected pursuant to a Civ.R. 60(A) motion.
3. Personal Property
{¶18} Regarding the trial court’s division of personal property, Husband contends
the trial court improperly ordered each party to retain personal property in their respective
possessions without first conducting a valuation.
{¶19} Again, Wife claims Husband waived the claim on appeal because he did not
object to the magistrate’s decision ordering the parties to retain personal property in their
possession. Our review of Husband’s objections to the magistrate’s decision, however,
reflects that Husband clearly complained of the magistrate’s distribution of personal
property.
{¶20} With respect to the division of marital property, R.C. 3105.171 requires a trial
court is to equitably divide and distribute the parties’ marital property. “As a practical
matter, for an appellate court to review a trial court’s division of property, * * * findings of
value must be made so that equality of value may be examined.” Eisler v. Eisler, 24 Ohio
App.3d 151, 152, 493 N.E.2d 975 (11th Dist.1985). Thus, “it is error for the trial court to
fail to make a finding as to the fair market value of each item of marital property so that an
appellate court can effectively review the propriety of the court’s decision.” Id. at syllabus. See also Taylor v. Taylor, 8th Dist. Cuyahoga No. 86331, 2006-Ohio-1925, ¶ 35.
Upon remand, the trial court is to determine the value of the items of personal property in
the parties’ possession and make an equitable distribution of the properties.
4. MetLife Universal Policy
{¶21} Husband claims it was an error for the trial court to award a MetLife
Universal policy owned by Wife without first establishing its value. The record contains
little evidence before the court for the existence of this property other than a fax from
MetLife showing a payment of $335 in annual payment in August 2010. Noting the dearth
of evidence showing the nature of the MetLife policy, let alone its value, the magistrate
determined it should remain the property of Wife. In any event, our review of Husband’s
objections to the magistrate’s decisions does not reflect an objection by Husband regarding
the disposition of this property; therefore, Husband has waived the claim pursuant to Civ.R.
53(D)(3)(b)(iv).
5. Merrill Lynch Awards
{¶22} Husband qualified for several Merrill Lynch awards. The trial court
determined these awards to be marital property and awarded Wife one half of each of these
awards, on the ground that the awards were earned during the marriage. Husband claims
the trial court erred because these awards will only be vested years from now, provided he
maintains employment with Merrill Lynch.
{¶23} There does not appear to be case law directly on point, but the case law
concerning the distribution of unvested pension may provide some guidance. In Pruitt v. Pruitt, 8th Dist. Cuyahoga No. 84335, 2005-Ohio-4424, ¶ 62, this court, addressing
unvested pension and retirement benefits, noted that these benefits have value, whether
vested or otherwise, and, if accumulated during a marriage, must be considered in the
equitable division of marital assets. Id. at ¶ 62, citing Haller v. Haller, 12th Dist. Warren
No. CA95-06-063, 1996 Ohio App. LEXIS 985 (Mar. 18, 1996). See also Lemon v.
Lemon, 42 Ohio App.3d 142, 144, 537 N.E.2d 246 (4th Dist.1988) (“An unvested pension
plan has value.”). Thus, applying the principle that employment benefits do not have to be
vested for purposes of dividing marital assets upon a divorce, we do not find the trial
court’s division of Husband’s employment awards, which were earned during the marriage,
to be an abuse of discretion.
6. Two Merrill Lynch Accounts Established for a Child
{¶24} The couple established two Merrill Lynch accounts for their child Heather —
who reached the age of majority during the pendency of the divorce proceedings. In its
judgment, the trial court ordered Husband to “transfer to Heather Wojanowski all of the
funds on deposit in UTMA account No. 81L99013 and account No. 81L99715.” On
appeal, Husband claims the trial court erred in awarding the accounts to their child, arguing
that both are marital assets and should be divided between the parties.
{¶25} Our review shows that the first of these two accounts (No. 81L99013) is a
Uniform Transfers to Minors Act (“UTMA”) account in the child’s name: the account
shows its owner as “Peter Wojanowski C/F Heather M Wojanowski UTMA/OH Until Age
21.” {¶26} R.C. 5814.03 provides that a gift or transfer to a minor child made pursuant to
the Transfers to Minors Act is irrevocable and conveys to the minor indefeasibly vested
legal title to the property. See also Hyder v. Hyder, 9th Dist. Wayne No. 06CA0014,
2006-Ohio-5285, ¶ 7-9; LCP Holding Co. v. Taylor, 158 Ohio App.3d 546,
2004-Ohio-5324, 817 N.E.2d 439, fn. 3 (11th Dist.). The court in Hyder held that UTMA
accounts could not be characterized as marital assets because the parents had no property
interest in them. Id. at ¶ 9.
{¶27} Here, the magistrate, citing Hyder, properly concluded that the UTMA
account is not marital property. However, both the magistrate and the trial court ordered
the funds of the account “transferred” to Heather. This appears to be unnecessary, because
Heather is the owner of the account, and Husband, as the account’s custodian, has no rights
to the account, once she reached 21.
{¶28} Regarding the second account (No. 81L99715), our review of a Merrill Lynch
account statement shows that this is an “Education Savings” account. The account owner
is listed as “MLPF & S CUST FPO HEATHER WOJANOWSKI MLESA PETER
WOJANOWSKI GDN.” It is unclear what some of the abbreviations designate, and the
record reflects no other information about this account, other than the fact that this account
was established by the couple to pay for Heather’s education.
{¶29} The magistrate stated that, although this account does not appear to have been
established pursuant to the UTMA, there was no reason not to give effect to the original
purpose for this account. The trial court, in its judgment entry, stated the funds in the account should be transferred to Heather. On appeal, Husband claims this account should
be divided as a marital asset.
{¶30} This account, referred to as an “Education Savings” account in the account
statement, appears to be a “Coverdell Education Savings” account. As such, the
ownership, beneficiary, and use of the funds of the account is subject to IRS regulations.
The magistrate properly observed that the parties’ original purpose should be given effect.
It is unclear, however, whether the account could be “transferred” to Heather, as the trial
court ordered in its judgment entry. Regardless, the trial court did not abuse its discretion
in not dividing it between the couple as a marital asset.
7. Husband’s Potential Future Income Based on his “Book of Business”
{¶31} The trial court awarded Wife half of Husband’s future earnings as a financial
advisor under various Merrill Lynch compensations programs for its financial advisors.
All these potential future earnings relate to the unique way Husband is compensated as a
financial advisor who has a “book of business.” The “book of business” includes the
number of clients and the amount of assets under management. The potential future
earnings awarded by the trial court are all derived from Husband’s “book of business,”
which the court found to have been developed during the marriage.
{¶32} One category of income based on the “book of business” is called a
“forgivable loan.” Merrill Lynch, like other major brokerage firms, awards newly hired
financial advisors who bring to the firm a “book of business” with an up-front payment,
structured as a “forgivable loan.” The amount of the “forgivable loan” would be based on the brokerage firm’s projection of the new hire’s potential earnings, calculated on that
employee’s “book of business” and his or her productivity over the previous year prior to
joining the firm. The amount of “forgivable loan” is an indication of the value of a
financial advisor’s “book of business.” When Husband joined Merrill Lynch as a financial
advisor in 2005, he received an amount of $485,872 in a “forgivable loan.”1 This amount is
not at issue before the trial court, as that amount had been deposited into the couple’s bank
accounts, which were divided as marital property.
{¶33} What was disputed is Wife’s claim that the “book of business” is still a
valuable asset and its value should be divided in the divorce. Her expert valued the “book
of business” at $340,000, based on (1) the expert’s assumption that Merrill Lynch would be
required to pay Husband for his “book of business” if he migrates to another brokerage
firm, and (2) on the amount of “forgivable loan” he previously received. The magistrate
rejected the expert’s valuation. The magistrate noted that Weinberg’s valuation of
Husband’s “book of business” was premised on the expert’s erroneous interpretation of
Husband’s employment contract that Merrill Lynch was required to pay him a sum of
money for his “book of business” if he were to leave. The magistrate found the
assumption purely speculative and flied in the face of the employment contract Husband
signed in 2005, which made the “book of business” Merrill Lynch’s property.
The principle of the “loan,” along with interest of 4.5 percent, was payable in 60 monthly 1
installments of $8,507.50 (exhibit No. 26). {¶34} Although the magistrate found the valuation of the “book of business” at
$340,000 unsupported by evidence and refused to award Wife half of what she believed to
be the value of the “book of business,” the magistrate nonetheless found the “the book of
business” to be a marital asset and awarded Wife half of any potential future earnings
derivable from it.
{¶35} On appeal, Wife does not challenge the court’s rejection of her claim that she
is entitled to half of the value assigned by her expert to Husband’s “book of business.”
Husband, however, challenges the court’s award of half of his potential future earnings
based on the “book of business.”
{¶36} Specifically, the court awarded Wife half of the marital portion of any
payments Husband may receive under Merrill Lynch’s Client Transition program. Under
the Client Transition program, a financial advisor who voluntarily leaves Merrill Lynch will
have his or her “book of business” transferred to financial advisors in Merrill Lynch. The
departing financial advisor will then receive a percentage of the commissions earned off the
“book of business,” in exchange for providing consulting services and maintaining client
relationships after his or her departure. The magistrate explained that Husband spent the
bulk of the marriage building up his client base and, therefore, it would be “grossly unfair”
to allow Husband to keep all the potential future income he could receive based on his
“book of business.”
{¶37} The court also awarded half of any death benefit Merrill Lynch would pay
under its Death Benefit program in the event Husband dies while employed. Under this program, a financial advisor’s estate will receive one year’s commission attendant to the
“book of business,” based on the financial advisor’s production level in the prior year, if the
financial advisor dies while still employed with Merrill Lynch.
{¶38} Finally, the court awarded Wife half of the marital portion of any potential
payment structured as a “forgivable loan,” if Husband were to migrate to another brokerage
firm and receive such an upfront payment from his new employer.
{¶39} We will not reverse a trial court’s characterization of property as separate or
marital absent an abuse of discretion. Peck v. Peck, 96 Ohio App.3d 731, 734, 645 N.E.2d
1300 (12th Dist.1994). Here, the “asset” in the form of the “book of business” was
undisputedly amassed during the course of the parties’ long marriage. The trial court
considered it as marital property and divided the marital portion of any future income
Husband may receive based on the “book of business” he developed during the marriage.
As such, we do not find an abuse of discretion.
{¶40} The first assignment of error is sustained in part and overruled in part.
Second Assignment of Error: Spousal Support
{¶41} Under the second assignment of error, Husband argues the trial court erred in
awarding spousal support of $4,500 per month to Wife and in failing to delineate the
circumstances upon which the spousal support may be modified.
{¶42} “After a divorce has been granted, the trial court is required to equitably
divide and distribute the marital estate between the parties, and to consider whether an award of alimony would be appropriate.” See Wolfe v. Wolfe, 46 Ohio St.2d 399, 414, 350
N.E.2d 413 (1976).
{¶43} The trial court has broad discretion in determining whether an award of
spousal support is proper based on the facts and circumstances of each case. Kunkle v.
Kunkle, 51 Ohio St.3d 64, 67, 554 N.E.2d 83 (1990). We will not disturb a spousal
support award absent an abuse of discretion. Id.
{¶44} When determining whether spousal support is appropriate and reasonable, the
trial court must consider the factors set forth in R.C. 3105.18(C)(1). Kaletta v. Kaletta, 8th
Dist. Cuyahoga No. 98821, 2013-Ohio-1667, ¶ 22. No single factor, by itself, is
determinative. Id. at ¶ 22.
{¶45} The thirteen factors enumerated in R.C. 3105.18(C)(1) include: the parties’
income from all sources, including income derived from the property division made by the
court; the relative earning abilities of the parties; their ages and physical, mental, and
emotional conditions; their retirement benefits; the duration of the marriage; their standard
of living during the marriage; the relative extent of education of the parties; their relative
assets and liabilities; the contribution of each party to the education, training, or earning
ability of the other party; tax consequences of spousal support, and the lost income
production capacity of either party that resulted from that party’s marital responsibilities.
R.C. 3105.18(C)(1).
{¶46} “The court need not expressly comment on each factor but must indicate the
basis for an award of spousal support in sufficient detail to enable a reviewing court to determine that the award is fair, equitable, and in accordance with the law.” Walpole v.
Walpole, 8th Dist. Cuyahoga No. 99231, 2013-Ohio-3529, citing Kaletta.
{¶47} Here, the trial court adopted the magistrate’s award of $4,500 to Wife in
monthly spousal support, but stated “ [t]he Court shall retain jurisdiction to modify this
order.” The court also noted that pursuant to R.C. 3105.18(B), the payments shall
terminate upon the death of either party or Wife’s remarriage or cohabitation with a
member of the opposite sex. Our review of the magistrate’s decision, adopted by the trial
court, reflects a lengthy analysis, which encompasses each of the enumerated statutory
factors.
{¶48} The magistrate gave due consideration to the substantial duration of the
marriage and emphasized Wife’s lack of potential to become self-supporting in light of her
age, her physical and mental health ailments, the years she spent as a homemaker, and her
very limited employment history during the marriage. See Kunkle, 51 Ohio St.3d 64, 554
N.E.2d 83, paragraph one of the syllabus (a spousal award of indefinite duration may be
appropriate in cases involving a marriage of long duration, parties of advanced age, or a
homemaker-spouse with little opportunity to develop meaningful employment outside the
home, whereas the payee spouse has the resources, ability, and potential to be
self-supporting).
{¶49} In calculating Husband’s income for spousal support purposes, the magistrate
noted that, because of the complicated way Husband’s compensation is structured as a
financial advisor, the most accurate measure of his income history was reflected in the 2008-2011 Compensation Summary prepared by Merrill Lynch. The report shows
Husband’s compensation was $126,521, $138,310, $122,215, $127,066, for 2008, 2009,
2010, and 2011, respectively.
{¶50} For the year 2012, his June 29, 2012 pay stubs shows he earned $68,556.72
for the first half of the year. The magistrate considered his compensation history and
extrapolated the amount of $68,556.72 to arrive at an annual income of $137,114 (=
$68,556.72 x 2) for spousal support purposes, while acknowledging that the actual income
for 2012 could be larger or smaller than the extrapolated amount. Based on the estimated
annual income, the magistrate awarded Wife a monthly support of $4,500, which, pursuant
to a “FIN Plan” analysis, would give Wife $3,781 and Husband $4,721 to meet their living
expenses.
{¶51} When the record reflects that the trial court considered the statutory factors
and if the judgment contains detail sufficient for a reviewing court to determine that the
support award is fair and equitable, we will uphold the award. Gentile v. Gentile, 8th Dist.
Cuyahoga No. 97971, 2013-Ohio-1338, ¶ 44, citing Daniels v. Daniels, 10th Dist. Franklin
No. 07AP-709, 2008 Ohio App. LEXIS 772 (Mar. 4, 2008).
{¶52} Our review of the record before us reflects that the magistrate’s decision,
adopted by the trial court, was based on the duration of the marriage, Wife’s physical and
mental health issues, her lack of employment outside the home during the marriage, the
difficulties of entering the workforce at her age, and the unlikelihood of her developing
meaningful employment outside the home, as well as Husband’s employment history and earning abilities. Based on the record, we do not find an abuse of discretion by the trial
court in awarding $4,500 per month.
{¶53} Although the trial court did not specify the duration of the spousal support
(other than noting its termination upon conditions pursuant to R.C. 3105.18(B)), the court
specifically stated that it retains jurisdiction to modify the spousal support order.
{¶54} A trial court, having reserved jurisdiction, can modify a prior order of spousal
support when the court finds “(1) that a substantial change in circumstances has occurred,
and (2) that the change was not contemplated at the time of the original decree.”
Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905 N.E.2d 172,
paragraph two of the syllabus. See also Potter v. Potter, 8th Dist. Cuyahoga No. 99247,
2013-Ohio-3531, ¶ 12, citing Mandelbaum.
{¶55} On appeal, Husband claims that because of a change in the spousal support
statute, he would never be able to demonstrate a change of circumstances warranting a
modification of the support ordered by the trial court.
{¶56} R.C. 3105.18 governs the award of spousal support and its modification. The
prior version of R.C. 3105.18 did not explicitly require a substantial and unforeseen change
in circumstances before the trial court could modify a prior order of support. Mandelbaum
at ¶ 29. After Mandelbaum, R.C. 3105.18 was amended in 2012 to incorporate and clarify
these requirements, by adding subsections (F)(1)(a) and (b). Subsection (F)(1)(a) of the
current statute requires that “[t]he change in circumstances is substantial and makes the
existing award no longer reasonable and appropriate.” Subsection (F)(1)(b) requires that “[t]he change in circumstances was not taken into account by the parties or the court as a
basis for the existing award when it was established or last modified, whether or not the
change in circumstances was foreseeable.”
{¶57} A comparison of Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905
N.E.2d 172, and the amended R.C. 3105.18 indicates that their requirements for a
modification of support are similar: the change in circumstances (1) must be sufficiently
substantial to make the existing award inappropriate, and (2) must have been unforeseen,
i.e., had not been taken into account when the prior support was ordered.
{¶58} Husband claims that he will never be able to demonstrate a change in
circumstances warranting a modification despite the trial court’s reservation of jurisdiction,
because, as he argues, the trial court had already taken into account his age, income,
retirements assets, and health conditions in its award of spousal support.
{¶59} Husband’s claim is without merit. The magistrate in its decision specifically
stated that “[b]ased on the evidence there is no reason to conclude that either party’s
earning ability will significantly change in the foreseeable future.” In other words, the
record is clear that, in awarding $4,500, the court did not take into account the possibility
that Husband’s earning ability will significantly change in the foreseeable future, whether it
is due to his health, the economy, or any other reasons. Therefore, in the event that his
income is sufficiently decreased — or if there is a significant change in Wife’s earning
ability — such that the ordered support is no longer appropriate or reasonable, Husband
will be able to have the trial court reconsider the amount and duration of the support, pursuant to both R.C. 3105.18 and Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, 905
N.E.2d 172. The second assignment of error is without merit.
Third Assignment of Error: Attorney Fees
{¶60} Under the third assignment of error, Husband contends the trial court erred in
awarding Wife $25,000 in attorney fees.
{¶61} Pursuant to R.C. 3105.73(A), which governs awards of attorney fees in a
divorce action, “a court may award all or part of reasonable attorney’s fees and litigation
expenses to either party if the court finds the award equitable.” “In determining whether
an award is equitable, the court may consider the parties’ marital assets and income, any
award of temporary spousal support, the conduct of the parties, and any other relevant
factors the court deems appropriate.” Id.
{¶62} “An award of attorney fees in a domestic relations action is within the sound
discretion of the trial court and will not be reversed on appeal absent an abuse of
discretion.” Kehoe v. Kehoe, 8th Dist. Cuyahoga No. 99404, 2013-Ohio-4907, ¶ 18, citing
Dureiko v. Dureiko, 8th Dist. Cuyahoga No. 94393, 2010-Ohio-5599, ¶ 26. “Our review
of the award of attorney fees is limited to determining (1) whether the factual
considerations upon which the award was based are supported by the manifest weight of
the evidence, or (2) whether the domestic relations court abused its discretion.” Gentile,
8th Dist. Cuyahoga No. 97971, 2013-Ohio-1338, ¶ 68, citing Neumann v. Neumann, 8th
Dist. Cuyahoga No. 96915, 2012-Ohio-591, ¶ 6, citing Gourash v. Gourash, 8th Dist. Cuyahoga Nos. 71882 and 73971, 1999 Ohio App. LEXIS 4074 (Sept. 2, 1999), and Oatey
v. Oatey, 83 Ohio App.3d 251, 614 N.E.2d 1054 (8th Dist.1992).
{¶63} The magistrate, whose decision was adopted by the trial court, looked to R.C.
3105.73 for authorization and guidance in deciding to award attorney fees to Wife. The
magistrate found Husband’s conduct in this case made the divorce “anything but routine
and straightforward,” because Husband failed to turn over documents in his possession or
to which he had access, in particular, documents regarding Merrill Lynch’s compensation
programs. The magistrate also noted Wife incurred additional legal fees after Husband
refused to sign a settlement previously reached in open court and tried to renegotiate the
agreement. Husband also complicated the divorce matter by refusing to acknowledge the
clearly marital nature of certain assets, such as the Ohio Catholic Credit Union account.
The magistrate found a partial award of attorney fees to Wife equitable because of the
disparity of the parties’ income.
{¶64} Husband’s claims that additional fees were incurred because Wife dismissed a
prior filing of the divorce complaint, and then refiled the case, and had four different
attorneys throughout the proceedings. Regarding this claim, we note that the magistrate
excluded the attorney fees incurred by Wife under the prior filing. The magistrate also
explained that much of the discovery in this case had been done by prior counsel, and that
the current counsel did not duplicate the discovery efforts.
{¶65} Our reading of the fee statement submitted by Wife’s (current) counsel
(exhibit No. 73) shows the amount of fees incurred from January to June 2012 to be $23,308.54. However, a closer examination of the statement shows that the May 22, 2012
bill erroneously listed Wife’s retainer of $10,000, which was deposited into the IOLTA
account, as an “expense.” This erroneous accounting accordingly inflated the fees by
$10,000. Thus, the fees for the period of time Wife was represented by her current
counsel was actually $13,308.54, not $23,308.54.
{¶66} The amount of $13.308.54 represents (1) $5,229.17 incurred between January
16, 2012 and April 25, 2012, (2) $3,229.50 incurred between May 1 and May 22, 2012, and
(3) $4,849.87 incurred between June 5, and June 29, 2012. The magistrate also found
additional legal fees in the amount of $13,000 for the 40 hours (at an hourly rate of $350)
counsel spent at the five-day trial from July 17 to July 26, 2012.
{¶67} Given this record, the trial court’s award of $25,000 in attorney fees is
supported by the evidence and within its sound discretion. We refuse to disturb it on
appeal. The third assignment of error is without merit.
{¶68} The judgment of the trial court is affirmed in part, reversed in part, and
remanded for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the domestic
relations court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
___________________________________________________ TIM McCORMACK, JUDGE
MARY J. BOYLE, A.J., and EILEEN T. GALLAGHER, J., CONCUR