Salpietro v. SalpietroSalpietro v. Salpietro
Gina Salpietro Appellant v. Benjamin J. Salpietro, Jr. Appellee
DECISION AND JUDGMENT
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
{¶ 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
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.
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:
- 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.
- It is Error by the Court to limit Appellee/Defendant‘s income for Spousal Support to just his income as a Surgeon.
-
The Court Errs in ruling there was no Financial Misconduct by the Appellee/Defendant. - The Court Errs by not considering the contributions Appellant/Plaintiff made to the Appellee/Defendant in completing Appellee/Defendant‘s Surgical Residency.
- The Court Errs by failing to order Appellee/Defendant to pay Appellant/Plaintiff‘s health, dental, and optical insurance.
- The Court Errs by reducing Appellant/Plaintiff‘s Spousal Support over time.
- The Court Errs by limiting Spousal Support to $13,000 per month.
- The Court Errs by making a clerical error in the Spousal Support Payment Schedule.
- The Court Errs by not requiring Appellee/Defendant‘s Spousal Support Payments to be made by Bank Withholding.
- 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.
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 after a party filed their
{¶ 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
{¶ 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 (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
{¶ 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 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 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
{¶ 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 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 nondrafting 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).
{¶ 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
{¶ 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-
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
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 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
{¶ 29} Under
- 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 ; - The relative earning abilities of the parties;
- The ages and the physical, mental, and emotional conditions of the parties;
- The retirement benefits of the parties;
- The duration of the marriage;
- 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;
- The standard of living of the parties established during the marriage;
- The relative extent of education of the parties;
- The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
- 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;
- 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 tax consequences, for each party, of an award of spousal support;
- The lost income production capacity of either party that resulted from that party‘s marital responsibilities;
- Any other factor that the court expressly finds to be relevant and equitable.
{¶ 30} The trial court cannot consider any single
{¶ 31} With this framework in mind, we turn to Gina‘s assignments of error.
{¶ 32} In her fourth assignment of error, Gina contends that the trial court abused its discretion under
{¶ 33} We find that the trial court acted within its discretion when it determined under
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 bank withholding, and (5) making a clerical error in the support
{¶ 36} Benjamin responds that (1) the trial court considered all of the factors in
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
{¶ 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
{¶ 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
{¶ 40} In its decision, the trial court made the following findings relative to the factors in
- (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.” 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.
- (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.”
- (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 equitable.
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 along with every other factor in
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
{¶ 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 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
{¶ 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.
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,
{¶ 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 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
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
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
{¶ 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 $6,000 as spousal support.
(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.
{¶ 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
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 1, 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] 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
{¶ 58} In determining the issue of attorney fees, the trial court explicitly considered the factors in
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
{¶ 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).
{¶ 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
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Christine E. Mayle, J.
CONCUR.
JUDGE
JUDGE
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/.