Janosek v. JanosekJanosek v. Janosek
Civil Appeal from the Cuyahoga County Court of Common Pleas Division of Domestic Relations Case No. CP D-286943
BEFORE: Jones, J., Kilbane, P.J., and Stewart, J.
RELEASED: August 6, 2009
JOURNALIZED:
Matthew J. Cavanagh
Suzanne M. Jambe
James A. Loeb
David L. Marburger
Baker Hostetler LLP
3200 National City Center
1900 East Ninth Street
Cleveland, Ohio 44114
Paul B. Daiker
Larry W. Zukerman
Zukerman & Daiker & Lear Co., L.P.A.
3912 Prospect Avenue
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Vincent A. Stafford
Gregory J. Moore
The Stafford Building
2105 Ontario Street
Cleveland, Ohio 44115
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, James C. Janosek (“Husband“), appeals from various aspects of the judgment entry and decree of divorce entered by the Court of Common Pleas, Division of Domestic Relations. Having reviewed the arguments of the parties and the pertinent law, we hereby affirm the lower court.
STATEMENT OF THE CASE AND THE FACTS
{¶ 2} Husband and plaintiff-appellee, Sandra Janosek (“Wife“), were married on May 21, 1977. Four children were born of the marriage; all of whom are now emancipated. Throughout the course of the marriage, the parties accumulated a large marital estate comprised of several businesses, several homes, and other marital assets.
{¶ 3} On June 10, 2002, Wife filed for divorce. The court issued a temporary support order obligating Husband to pay child support of $3,000 per month for one minor child and temporary spousal support of $12,000 per month. The court awarded Wife interim attorneys fees and expenses of $25,000 on January 23, 2003, and $46,325.06 on October 23, 2003. A contested divorce trial was held for 27 days from January 7, 2005 through April 15, 2005. At the end of the trial, the judge asked both parties to prepare proposed findings of fact and conclusions of law. On May 20, 2005, Wife filed a notice of submission of proposed judgment entry of divorce with findings of fact and conclusions of law. On May 24, 2005, Husband filed his proposed findings of fact and conclusions of law.
{¶ 5} On July 20, 2005, the trial court stayed execution of the judgment entry subject to the posting of a $9,000,000 bond. The stay did not apply to the award of spousal support or attorneys fees. On July 26, 2005, Husband filed a notice of appeal from the judgment entry. On August 12, 2005, this Court granted
{¶ 6} Husband‘s emergency motion to reduce the appeal bond and to stay further execution on property awarded to him upon the posting of a $5,000,000 bond. On August 19, 2005, Husband posted the bond.
{¶ 7} Husband then appealed several different issues and raised 20 assignments of error with this court in Janosek v. Janosek, Cuyahoga App. Nos. 86771 and 86777, 2007-Ohio-68 (”Janosek I“). In Janosek I, this court reversed and vacated the trial court judgment as to the requirement that the husband secure the wife‘s support with a life insurance policy, as to the valuation of business interests and golf club memberships, as to his payment of the deficiency on the sale of the marital residence, as to the purge condition of his contempt, and as to the attorneys fees award. Those issues were remanded back to the trial court, and the remainder of the judgment was affirmed.1
{¶ 8} The specific issues on remand after Janosek I involved the trial court‘s award of attorneys fees to Wife, the trial court‘s division of property in regard to the marital estate, and spousal support. The trial court held an evidentiary hearing on the attorneys fees issue. During the cross-examination of wife‘s counsel, the parties settled the attorneys fees issue by reducing the fee award from $400,000.00 to $50,000.00. The parties submitted an agreed judgment entry regarding the fees, which the trial court entered.
{¶ 9} Although the trial court held a hearing to address the attorneys fees issue, it declined to hold an evidentiary hearing concerning the spousal support issue. Instead, the court ordered the parties to submit proposed findings of fact and
{¶ 10} On July 23, 2008, the trial court issued its decision addressing the remaining issues (“Remand Decision“). As far as spousal support is concerned, the lower court ordered Husband to pay $3,240,000.00 in spousal support, payable at $15,000.00 per month for 18 years until Husband is 71 years old. The 18 years are retroactive, beginning on February 7, 2005, and ending on February 7, 2023. On the same day, the court entered a separate order requiring Husband to post a $45,000.000 cash bond to secure the spousal support obligation.2
{¶ 11} The parties ultimately agreed to a reassessment and division of the marital estate, with each of them receiving in excess of $11,000,000.00 in property division.3
{¶ 12} Husband filed a notice of appeal, challenging both the spousal support order and the bond order. The clerk assigned number 91882 to that appeal. The next day, August 1, 2008, the trial court entered a “nunc pro tunc” order that reduced the bond amount to $10,000.00 but did not explain why.4 Husband filed a second notice of appeal challenging the second bond order. The clerk assigned number 91914 to the second appeal. On August 22, 2008, Wife filed a cross-appeal in case
ASSIGNMENTS OF ERROR
Appellant‘s Seven Assignments of Error
{¶ 13} Appellant assigns seven assignments of error on appeal:
{¶ 14} “I. The trial court erred and abused its discretion by awarding spousal support to appellee despite finding that she is self-sufficient and capable of sustaining and supporting her lifestyle without any spousal support;
{¶ 15} “II. The trial court erred and abused its discretion by ignoring the stated purpose of the spousal support statute (to provide ‘sustenance’ and support) and by disregarding the statutory scheme devised by the General Assembly;
{¶ 16} “III. The trial court erred and abused its discretion by not explaining how it calculated the arbitrarily chosen figure of $15,000.00 per month for spousal support;
{¶ 17} “IV. The trial court erred and abused its discretion by ‘double dipping’ – awarding appellee 50% of the value of appellant‘s business (the value of which was determined by the profit it generates) as marital property and then counting those profits again as appellant‘s income available for spousal support;
{¶ 18} “V. The trial court erred when it determined that a company‘s ‘retained earnings’ book entry on a balance sheet is the same thing as existing cash inside the company when in fact the record shows the company only had about $126,000.00 in cash;
{¶ 20} “VII. The trial court erred by ordering appellant to post a cash bond.”
Cross-Appeal – Appellee‘s Three Cross-Assignments of Error
{¶ 21} In addition to appellant‘s seven assignments of error, Sandra Janosek filed three cross-assignments of error in her cross-appeal. Her three cross-assignments of error are as follows:
{¶ 22} “[I.] The trial court erred and abused its discretion by reconsidering and/or modifying the spousal support order issued on June 20, 2005;
{¶ 23} “[II.] The trial court erred and abused its discretion by considering new evidence and arguments which are not part of the record as of June 20, 2005 and otherwise not properly before the trial court and/or this court;
{¶ 24} “[III.] The trial court erred and abused its discretion by failing to increase the spousal support order given the fact that the appellee‘s property division and payment of attorney fees was substantially reduced on remand.”
{¶ 25} Due to the substantial interrelation between Husband‘s first six assignments of error we shall address them together.
LEGAL ANALYSIS
Standard of Review
{¶ 26} Appellate review of a trial court‘s division of marital property is governed by an abuse of discretion standard. Martin v. Martin (1985), 18 Ohio St.3d 292, 342, 480 N.E.2d 1112.
{¶ 27} A trial court enjoys wide latitude in determining the appropriateness as well as the amount of spousal support. Bolinger v. Bolinger (1990), 49 Ohio St.3d 120, 551 N.E.2d 157.
Award of Spousal Support
{¶ 28}
{¶ 29} “(B) In divorce and legal separation proceedings, upon the request of either party and after the court determines the division or disbursement of property under section
{¶ 30} “An award of spousal support may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, from future income or otherwise, as the court considers equitable.
{¶ 31} Husband argues that Simoni v. Simoni (April 3, 1995), Cuyahoga App. No. 66995, 102 Ohio App.3d 628, supports a reversal of the trial court‘s spousal support award in this case. However, contrary to Husband‘s assertions, Simoni is distinguishable and inapplicable to the case at bar. In Simoni, the parties were married in 1964 and there were no children born in the marriage. The parties in Simoni, 68 and 67 years old at the time of divorce, were older than the parties in this case. Furthermore, the wife in Simoni was working at the time of the divorce. More importantly, unlike the case at bar, the primary issue in Simoni concerned the facts surrounding an antenuptial agreement. Finally, Simoni was based upon the standard of need; which is no longer the standard.
“As this court has noted previously,
R.C. 3105.18 , effective April 11, 1991, established a significantly different standard for awarding spousal support. The new “appropriate and reasonable” standard is broader then the old “necessary” standard. Thus, once the fourteen factors have been considered, the amount of spousal support is within the sound discretion of the trial court. See Young v. Young (Dec. 29, 1993), Lorain App. No. 93CA005554, unreported; see, also, Leversee v. Leversee (Mar. 25, 1993), Franklin App. No. 92AP-1307, unreported (1993 Opinions 1003); Griffin v. Griffin (Mar. 9, 1993), Franklin App. No. 92AP-1305, unreported (1993 Opinions 690); Frye v. Frye (Mar. 31, 1994), Franklin App. No. 93APF09-1218, unreported (1994 Opinions 1522).”
Pruden v. Pruden (June 2, 1994), Franklin App. No. 93APF10-1428.
{¶ 32} Under
“(a) The income of the parties * * *;
“(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 * * *;
“(j) The contribution of each party to the education training, or earning ability of the other party; * * *
“(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
“(l) The tax consequences, for each party, of an award of spousal support;
“(n) Any other factor that the court expressly finds to be relevant and equitable.”
A review of the above noted statute reveals that an award of spousal support is no longer predicated on the idea of need.5
{¶ 34} January 1, 1991, directs courts to consider the appropriateness and reasonableness of spousal support rather than whether it is a necessity.6
{¶ 35} This court has recently addressed the issue of spousal support in Tokar v. Tokar, Cuyahoga App. No. 89522, 2008-Ohio-6467, providing the following:
“In determining whether to grant spousal support and in determining the amount and duration of the payments, the trial court must consider the factors listed in
R.C. 3105.18(C)(1)(a)-(n) . Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 518 N.E.2d 1197, paragraph one of the syllabus; see, also, Keating, supra, at 37. Although a trial court is bound to consider these 14 factors, the award of spousal support lies within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Holcomb, supra, at 130-131; see, also, Moore v. Moore (1992), 83 Ohio App.3d 75, 78, 613 N.E.2d 1097. ‘[I]f the court does not specifically address each factor in its order, a reviewing court
{¶ 36}
{¶ 37} The record clearly reflects that the trial court considered all 14 statutory factors. Indeed, the trial court expressly discussed every factor in detail in its July 23, 2008 Judgment Entry. Accordingly, given the trial court‘s consideration of the factors, including its detailed analysis, we cannot say it abused its discretion in awarding spousal support.
{¶ 38} Accordingly, we find Husband‘s arguments that Wife will enjoy a lavish lifestyle without spousal support, his argument that Simoni applies, and his argument that Wife does not “need” spousal support to be without merit.
{¶ 39} As previously stated, the lower court properly ordered spousal support to Wife pursuant to its extensive analysis of the
{¶ 40} Specifically, the lower court provided the following in its July 23, 2008, Judgment Entry:
“This court finds that the Plaintiff should be awarded spousal support of a stated duration of years, 18 years from the date of February 7, 2005 in the amount of $15,000 per month.7 (Credits or debits are to be adjusted accordingly.) The decision to award spousal support is based upon the totality of the evidence, including the demonstrated earning capacity of Mr. Janosek of between three and four million dollars annually. This court finds that Mrs. Janosek‘s monthly standard of living is not less than $15,000 per month, but that any amount in excess of that figure can be borne by her share of marital assets.”
(Emphasis added.)
{¶ 41} The lower court looked at the totality of the circumstances, including information from thousands of pages of documents, 27 days of trial and many hours of testimony before coming to its decision.
{¶ 42} Moreover, we find Husband‘s argument regarding the lower court‘s $15,000.00 per month in spousal support to be without merit. The lower court‘s rationale behind the $15,000.00 per month figure was proper.8
{¶ 44} In addition, we find husband‘s “Double Dipping,” retained earnings, and post retirement payment arguments to be without merit. Husband has waived his right to raise these new arguments by his failure to raise these issues at the time of trial.
{¶ 45} Generally, if a party has knowledge of an error with sufficient time to object before the judge takes any action, that party waives any objection to the claimed error by failing to raise that issue on the record before the action is taken. Tissue v. Tissue, Cuyahoga App. No. 83708, 2004-Ohio-5968; Belvedere Condominium Unit Owners Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 279, 1993-Ohio-119, 617 N.E.2d 1075; Mark v. Mellott Mfg. Co., Inc. (1995), 106 Ohio App.3d 571, 589, 666 N.E.2d 631; Sagen v. Thrower (Apr. 8, 1999), Cuyahoga App. No. 73954. Therefore, a litigant who had the opportunity to raise a claim in the trial court, but failed to do so, waives the right to raise that claim on appeal. Id.
{¶ 47} Accordingly, Husbands first, second, third, fourth, fifth, and sixth assignments of error are overruled.
{¶ 48} Husband argues in his seventh assignment of error that the lower court erred when it ordered him to post a $45,000.00 cash bond. This assignment of error is dismissed as moot.
{¶ 49} “A nunc pro tunc order may be issued by a trial court, as an exercise of its inherent power, to make its record speak the truth. It is used to record that which the trial court did, but which has not been recorded. It is an order issued now, which has the same legal force and effect as if it had been issued at an earlier time, when it ought to have been issued.” (Emphasis added.) State v. Greulich (1988), 61 Ohio App.3d. 22, 24.
{¶ 50} Here, after the initial $45,000.00 bond order was issued, the lower court issued a new order requiring Husband to post a new cash bond in the amount of $10,000.00. This new order is in compliance with the statutory scheme set forth in
CROSS-APPEAL
{¶ 51} In addition to appellant‘s seven assignments of error, Wife has proffered three assignments of error in her cross-appeal. Wife argues that the trial court erred
{¶ 52} Due to the substantial interrelation in Wife‘s cross-appeal assignments of error, we shall address them together.
{¶ 53} Contrary to Wife‘s claims, this court does indeed have jurisdiction to review spousal support in this case. This court has the right to reassess the marital estate; and reassessment of the marital estate includes the reconsideration of spousal support. This court noted as much when we remanded Janosek I to the lower court to resolve various remaining issues. More specifically, the reconsideration of spousal support was addressed in Janosek I, where we cited Burma for the proposition that the reassessment of the marital estate includes the reconsideration of spousal support.9
{¶ 54} After the Court of Appeals issues its mandate, the case returns to the trial court, “reinvesting” it with jurisdiction. Int‘l Union of Operating Engineers, Local 18 v. Dan Wannemacher Masonry Co. (1990), 67 Ohio App.3d 672, 675.
{¶ 56} Where the appellate court has declined to reach the merits of a trial court‘s ruling, the trial court ordinarily is free to reconsider that ruling on remand. The mandate rule “has long been held not to require the trial court to adhere to its own previous rulings if they have not been adopted, explicitly or implicitly, by the appellate court‘s judgment.” Exxon Corp. v. United States (1991), 931 F.2d 874, 877-878.
{¶ 57} In the case at bar, this court never addressed the merits of the 2005 spousal support order, Therefore, the lower court was free to issue a new spousal support order, superseding the prior order.
{¶ 58} We find no abuse of discretion on the part of the lower court in its reconsideration and/or modification of the spousal support order issued on June 20, 2005.
{¶ 59} Wife argues in her second assignment of error that the lower court erred in considering new evidence and arguments that were not part of the record as of June 20, 2005. We find the lower court‘s actions to be proper. After reviewing the evidence in the record we find no error on the part of the lower court in its actions.
{¶ 60} Wife argues in her third assignment of error that the trial court‘s failure to increase the spousal support award was error. However, after reviewing the
{¶ 61} Accordingly, Wife‘s three cross-appeal assignments of error are overruled.
{¶ 62} We find that the extensive evidence in the record and the significant analysis by the lower court demonstrates that it properly addressed the property division and spousal support award amounts. As previously stated, the trial court‘s 27 days of trial, analysis of thousands of pages of information, significant review of the evidence, and detailed analysis of the 14 statutory factors in
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
LARRY A. JONES, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
{¶ 63} I concur with the majority opinion that the wife‘s cross-assignments of error are without merit. I respectfully dissent from the affirmation of the husband‘s appeal because the court abused its discretion both in the amount of spousal support ordered and the length of time over which it must be paid.
{¶ 64} As the majority correctly notes, the statutory standard for awarding spousal support is based on a determination of what amount is “appropriate and reasonable.” See
{¶ 66} Even with $15,000 of monthly expenses (amounting to $180,000 per year), the court found that the wife “can expect to earn a 4% rate of return, on safe investments, of some $320,000 of pretax income, which, after taxes, would adequately sustain her standard of living.” In other words, the court found that the wife could maintain her lifestyle and meet her monthly expenses by living off the interest generated by her liquid assets. If the wife could sustain her standard of living by living off the interest generated by her share of the marital estate, I fail to see how spousal support for the total amount of her monthly expenses, $15,000 per month, is appropriate and/or reasonable.
{¶ 67} Despite making findings that appeared to show that the wife had no need for spousal support, the court awarded her spousal support because it believed that the husband‘s share of the marital estate had the potential to grow significantly, while the wife‘s share of the estate was mostly in liquid assets that
{¶ 68} The court also abused its discretion by finding that the husband “intentionally deflated” his income by moving money into his company‘s retained earnings.10
{¶ 69} The amount of a corporation‘s retained earnings is the cumulative net income since the corporation began minus all of the dividends that the
{¶ 70} One of the husband‘s companies is a privately-held manufacturer of parts for airplanes and related technologies. It was formed in 1960, and given the age and capital-intensive nature of the company, one would expect it to report a high amount of retained earnings. The company‘s balance sheets confirm that it traditionally carried an amount of retained earnings in a range consistent with the amount that the court thought was so excessive. For example, in 1999, the company reported retained earnings of approximately $6 million. This was at a time well before divorce proceedings were initiated and the husband had no apparent incentive to intentionally deflate his income. In fact, retained earnings for the company fluctuated between $5 million and $7 million during the time period leading up to the divorce. There was no significant increase in retained earnings during the divorce proceedings, so the court abused its discretion by disregarding the historical financial data and finding that excessive retained earnings were proof that the husband intentionally deflated his income.
{¶ 71} Finally, the court abused its discretion by forcing the husband to pay spousal support until the husband‘s 71st birthday, which occurs in the year 2023. This order likely requires the husband to work beyond the traditionally recognized retirement age in order to meet the spousal support obligation. It also