STEVEN HARVEY VANDERINK v. ANDREA MATALOVA VANDERINK
Case No. 17 CA 0091
COURT OF APPEALS, LICKING COUNTY, OHIO, FIFTH APPELLATE DISTRICT
August 17, 2018
[Cite as Vanderink v. Vanderink, 2018-Ohio-3328.]
Hon. John W. Wise, P. J., Hon. W. Scott Gwin, J., Hon. Patricia A. Delaney, J.
JUDGMENT: Affirmed in Part; Reversed in Part and Remanded
DATE OF JUDGMENT ENTRY: August 17, 2018
APPEARANCES:
For Plaintiff-Appellant: VICKY M. CHRISTIANSEN, JULIE K. FIX, CHRISTIANSEN CO., LPA, 172 Hudson Avenue, Newark, Ohio 43055-5750
For Defendant-Appellee: ADAM K. VERNAU, VERNAU LAW LLC, 1288 Brittany Hills Drive, Newark, Ohio 43055
{¶1} Plaintiff-Appellant/Cross-Appellee (former husband) Steven Harvey Vanderink appeals from his divorce in the Licking County Court of Common Pleas, Domestic Relations Division. Defendant-Appellee/Cross-Appellant (former wife) is Andrea Matalova Vanderink. The relevant facts leading to this appeal are as follows.
{¶2} Appellant Steven and Appellee Andrea were married on June 24, 2011 in Licking County. After a period of negotiating, the parties had entered into a written antenuptial agreement in Columbus, Ohio, on June 23, 2011, the day before the wedding.
{¶3} The parties initially maintained a marital residence in Hebron, Ohio, and thereafter moved to Granville, Ohio. No children were born to the couple, although presently appellant has two adult children from a prior marriage and appellee has one adult child from a prior marriage.
{¶4} On September 21, 2015, Appellant Steven filed a complaint for divorce in the Licking County Court of Common Pleas, Domestic Relations Division (“trial court”). Appellee Andrea filed an answer and counterclaim on October 13, 2015.
{¶5} On May 17, 2016, appellant filed a motion for summary judgment. Appellee filed a response on June 14, 2016, and appellant filed a reply to the response on June 28, 2016.
{¶6} Shortly thereafter, the trial court issued a judgment entry regarding appellant’s aforesaid motion for summary judgment. The court first noted that it had “previously ruled that the antenuptial agreement is valid and enforceable.” Judgment Entry, July 5, 2016, at 2. The court further stated that the “critical issue is the meaning
{¶7} The divorce complaint and counterclaim proceeded to an evidentiary hearing before the trial court on December 20, 2016.
{¶8} The trial court issued a final decree of divorce on November 3, 2017, including a spreadsheet of assets and debts. Among other things, the trial court found the existence of assets totaling $2,671,984.28, exclusive of the marital residence. Of this, $819,396.28 in assets were found to be appellant’s separate property, and $76,115.00 in assets were found to be appellee’s separate property, leaving a total of $1,776,472.93 in marital property. The sole debt item was an automobile loan, found to be marital debt, of $93,970.00. The court ultimately distributed $935,221.47 of the marital assets to appellant, made him responsible for the auto loan, and distributed $841,251.46 of the marital assets to appellee. The court also awarded appellee spousal support in
{¶9} On November 30, 2017, Appellant Steven filed a notice of appeal, which we will herein treat as a challenge to both the summary judgment denial and the divorce decree. He herein raises the following four Assignments of Error:
{¶10} “I. THE TRIAL COURT ERRED IN INTERPRETING THE PARTIES’ ANTENUPTIAL AGREEMENT.
{¶11} “II. THE TRIAL COURT ERRED IN DENYING HUSBAND‘S MOTION FOR SUMMARY JUDGMENT REGARDING THE INTERPRETATION OF THE ANTENUPTIAL AGREEMENT.
{¶12} “III. THE TRIAL COURT ERRED IN AWARDING WIFE SPOUSAL SUPPORT IN THE FORM OF 50% OF HUSBAND‘S GROWTH PARTNER PLAN BONUSES EARNED IN 2014, 2015, AND 2016.
{¶13} “IV. THE TRIAL COURT ERRED IN DENYING HUSBAND‘S MOTION FOR DISTRIBUTIVE AWARD DUE TO WIFE‘S FINANCIAL MISCONDUCT.”
{¶14} In addition, Appellee Andrea has filed a cross-appeal in this matter. She herein raises the following two Assignments of Error on cross-appeal:
{¶15} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT AWARDED APPELLANT AN INCREASED SEPARATE PROPERTY CLAIM BASED UPON AN INCREASE IN PRE-MARITAL PROPERTY DUE TO PASSIVE APPRECIATEION [SIC] AND MARKET GAINS FOR WHICH THERE WAS NO EVIDENCE IN THE RECORD.
Appellant Steven’s Appeal
I.
{¶17} In his First Assignment of Error, appellant argues the trial court erred in interpreting the parties’ antenuptial agreement, particularly as to the question of marital versus separate property. We disagree.
{¶18} The test in Ohio for the validity of an antenuptial agreement is set forth in Gross v. Gross (1984), 11 Ohio St.3d 99, 464 N.E.2d 500: “Such agreements are valid and enforceable (1) if they have been entered into freely without fraud, duress, coercion, or overreaching; (2) if there was full disclosure, or full knowledge and understanding of the nature, value and extent of the prospective spouse‘s property; and (3) if the terms do not promote or encourage divorce or profiteering by divorce.” Id., at paragraph two of the syllabus.
{¶19} The validity of an antenuptial agreement is a question of fact for the trial court, and the trial court‘s decision will not be reversed absent an abuse of discretion. Bisker v. Bisker (1994), 69 Ohio St.3d 608, 609–610, 635 N.E.2d 308. We will affirm a trial court‘s decision regarding enforceability if the record contains competent evidence to support it. Fletcher v. Fletcher (1994), 68 Ohio St.3d 468, 628 N.E.2d 1343. Nonetheless, at the same time, prenuptial agreements are contracts, and the law of contracts will generally apply to their application and interpretation. As such, a trial court‘s
{¶20} At this juncture, we find the issue before us essentially involves the legal interpretation of the 2011 antenuptial agreement, rather than any challenges to its overall validity. Accordingly, we will apply a de novo standard of review in our analysis of the present assigned error.
{¶21} The present focus of our attention is “Section 3.01” of the Agreement, which states as follows:
Both parties to this Agreement agree that the property each party owned prior to their marriage which is listed in Schedule A and B hereby incorporated by reference as if fully set forth herein, and all property hereafter acquired by each party by gift, devise, bequest, inheritance, together with all appreciation, profits, rents, increases, and proceeds from all such properties and all substitutions for all such properties, shall remain as the sole and separate property of the respective parties and that each party shall retain absolute ownership of his or her respective property during the marriage, except as otherwise provided herein for the residence located at *** Hebron, Ohio.
{¶22} “Section 3.04” of the Agreement adds, in pertinent part:
To the extent of property covered by Paragraph 3.01, it is mutually agreed that each party waives, discharges and releases any and all claims and rights, actual, inchoate, or contingent, in law and equity, which he or
{¶23} In addition, “Section 3.06” of the Agreement addresses the potential of a legal separation or termination of the marriage:
If the parties are divorced or their marriage is dissolved or annulled, or become legally separated (including filing for any of the same), both parties to this Agreement agree that all of each respective party‘s property described in Paragraph 3.01 of this Article shall remain as the sole and separate property of such respective party and each party shall retain absolute ownership of his or her respective property after such divorce, dissolution or annulment or legal separation.
{¶24} In a nutshell, appellant first maintains that these sections evince an intent of the parties, contrary to the trial court’s conclusions, that there would be no limitation on additional contributions to the separate property items (or substitutions therefor) of each party, such items being defined as the listed property each party owned prior to the marriage, or property each party may have gained during the marriage by “gift, devise, bequest, [or] inheritance.” Appellant likewise contends the phrase “retain absolute ownership *** during the marriage” demonstrates that the parties did not simply intend to protect their respective premarital assets and the passive appreciation from such premarital assets.
{¶26} Appellant first asks us to consider, in addition to the aforesaid sections of the antenuptial agreement, the statement of the parties’ intent set forth in “Section 1.01,” which states that “[t]he parties to this Agreement intend and desire to define their respective rights in the property of the other and to avoid such interests which, except for the operation of this Agreement, they might acquire in the property of the other as incidents of their marriage relationship.” Appellant posits that Section 1.01 is a “clear indication” that the parties did not intend to restrict the protection of the agreement to just their premarital assets and any passive appreciation thereon. Appellant’s Brief at 9. Our reading of this preamble does not lead us to that conclusion; however, even if we concurred with appellant on this point, “*** when both general and specific provisions in a contract relate to the same subject, it is generally accepted that the specific provisions are controlling.” Consol. Rail Corp. v. Total Exp., 10th Dist. Franklin No. 88AP-237, 1988 WL 99357, citing Ins. Co. of North America v. Wells (1973), 35 Ohio App.2d 173.
{¶28} Appellant next maintains the trial court erroneously determined that the parties’ income and bonuses from employment during the marriage would be treated as marital property. A review of the schedules attached to the antenuptial agreement reveal a listing of a figure of $350,000.00 for appellant’s “gross yearly employment income,” a figure of $125,000.00 for his “year to date gross income” through May 31, 2011, and additional figures for his 2008, 2009, and 2010 “base income” and his overtime, commission and bonuses for those years, as well as a single figure of $92,000.00 for appellee’s gross annual income from her employment. Despite this information in the schedules, the trial court determined that “the Agreement is silent as to the parties’ incomes ***.” Judgment Entry, July 5, 2016, at 5. Nonetheless, appellant in essence proposes that because the “separate property” schedules of the parties, attached to the
{¶29} In broad terms, we first find appellant’s present argument blurs the distinction between income and wealth. The United States Supreme Court has stated that the term “income” embodies the concept of accession to wealth. See Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 99 L. Ed. 483 (1955). In other words, as cogently stated by an Illinois court, “income represents a gain or profit that is generally understood to be a return on an investment of labor or capital, thereby increasing the recipient‘s wealth.” In re Marriage of Tegeler, 365 Ill.App.3d 448, 455, 302 Ill.Dec. 173, 848 N.E.2d 173 (2006). The general rule in Ohio is that income earned by labor performed during the marriage is marital property whether received during or after the marriage. Schweinfurth v. Meza, 8th Dist. Cuyahoga No. 80506, 2002-Ohio-6316, ¶ 19;
{¶30} Furthermore, by assenting to an antenuptial agreement, “the prospective wife or husband waives any particular right arising out of the marriage contract, including statutory rights, where the agreement by its clear wording shows that such a result was intended.” In re Estate of Armstrong, 4th Dist. Hocking No. 96 CA 3, 1997 WL 139441, citing Troha v. Sneller (1959), 169 Ohio St. 397, 159 N.E.2d 899, syllabus (internal quotations omitted). In this instance, upon review, we find that the written disclosure by the parties of recent gross incomes as of the time of the signing, in the schedules referenced in the antenuptial agreement, does not manifest an intention by the parties to treat their forward incomes earned during the marriage as separate “property,” and had the parties so intended, we would find clear language to that effect in the agreement.
{¶32} We find no error as a matter of law in the trial court’s interpretation of the antenuptial agreement. The trial court’s division of property is thus upheld, except as may be affected by our redress of the Third Assignment of Error. Appellant‘s First Assignment of Error is therefore overruled.
II.
{¶33} In his Second Assignment of Error, appellant contends the trial court erred in denying his motion for summary judgment regarding the interpretation of the antenuptial agreement.
{¶34} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. See Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, we must refer to
{¶35} Generally, the denial of a motion for summary judgment is not a final appealable order; however, at least in some circumstances, a party may appeal a trial court‘s denial of a motion for summary judgment after a subsequent adverse judgment. See City of Youngstown v. Washington, 7th Dist. Mahoning No. 17 MA 0073, 2018-Ohio-1283, ¶ 36, citing Balson v. Dodds, 62 Ohio St.2d 287, 289, 405 N.E.2d 293 (1980). But we have held that any error by a trial court in denying a motion for summary judgment is rendered moot or harmless where the subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the non-moving party. See In re D.N.O., 5th Dist. Stark No. 2012-CA-00239, 2013-Ohio-601, ¶ 36 (additional citations omitted). See, also, True Light Christian Ministries Church v. Clear Channel Outdoor, Inc., 5th Dist. Stark No. 2003CA00128, 157 Ohio App.3d 198, 2004-Ohio-2539, ¶ 23.
{¶36} Based on our conclusions under Appellant‘s First Assignment of Error, the Second Assignment of Error is found to be moot.
{¶37} In his Third Assignment of Error, appellant contends the trial court committed reversible error in establishing spousal support payable to appellee in the form of fifty percent of certain employment bonuses earned by appellant in 2014, 2015, and 2016. We agree.
{¶38} A trial court‘s decision concerning spousal support may only be altered if it constitutes an abuse of discretion. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67, 554 N.E.2d 83. An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N .E.2d 1140 (1983).
{¶39} In the case sub judice, the trial court ruled in pertinent part as follows: “[Appellee] is hereby awarded spousal support in the amount of one-half of Plaintiff‘s Growth Partner Plan bonuses earned in 2014, 2015 and 2016 which are due and payable in 2017, 2018 and 2019. The court finds this to be the most equitable way to disburse these monies and provide that each party will incur the tax benefits and/or costs associated with these payments.” Divorce Decree at 9.
{¶40} We note the court reached its decision on this issue despite the following testimony from Dana Lavelle, CPA, who was called by appellee: “In my opinion [the Growth Partner Plan] is a balance sheet item. It is property to be divided. It’s deferred. It’s like any other retirement account or deferred compensation account and so therefore it needs to be divided as property.” Tr. at 59.
{¶41} Appellant, drawing from his earlier argument, urges that because he provided numerical figures for his recent annual bonuses (as of 2011) on his Schedule
{¶42} However, appellant next argues the trial court failed to properly consider
(C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:
(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under
section 3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of
{¶43} (Emphasis added).
{¶44} While
{¶46} “Although a trial court has discretion when fashioning its spousal support award, it does not have discretion to disregard the statutory mandates that control spousal support.” Palazzo v. Palazzo, 9th Dist. Summit No. 27932, 2016-Ohio-3041, ¶ 21. We are thus unable to presume the trial court properly applied
{¶47} Appellant‘s Third Assignment of Error is therefore sustained, and the matter will be remanded for the court to reconsider the issue of spousal support under
IV.
{¶48} In his Fourth Assignment of Error, appellant contends the trial court erred in failing to compensate him for appellee’s alleged financial misconduct. We disagree.
{¶50} Appellant first directs us to evidence that in August 2015, shortly before appellant filed his divorce complaint, appellee transferred $55,400.00 from one Chase Bank account (held in the name of appellee and appellee’s daughter) into a different Chase Bank account (also held in the name of appellee and her daughter). This was followed the next day by appellee’s withdrawal of $56,000.00 from the second Chase account. See Tr. at 187 (testimony of appellant). According to the testimony, appellee did not re-deposit the money into an account of which appellant was aware. Tr. at 187-188. Appellant urges that this activity evinces an attempt by appellee to conceal marital funds.
{¶51} Appellant also points to evidence that appellee had been making bi-weekly deposits from her paycheck into an account held by appellee’s daughter. Appellant eventually noticed that appellee’s daughter (at the time an unemployed full-time student) had approximately $80,000.00 in her bank account. Tr. at 138. Appellant testified at the divorce trial he had discovered a total of $57,634.00 in funds that appellee had removed from the parties’ joint account and deposited into accounts in her daughter‘s name. See Tr. at 148.
{¶52} Appellant further maintains that appellee filed her 2015 income tax returns separately, in alleged violation of the trial court’s restraining order, and thereafter refused to disclose the name of the accountant who assisted her in the filing. See Deposition of
{¶53} We have held that “[f]inancial misconduct requires more than just dishonest behavior, it requires a wrongdoing that interferes with a spouse‘s property rights and results in profit to the wrongdoer from the alleged misconduct or stems from an intentional act meant to defeat the other spouse‘s distribution of assets.” Thomas v. Thomas, 5th Dist. Delaware No. 11CAF090079, 2012-Ohio-2893, 974 N.E.2d 679, ¶ 63 (additional citations omitted).
{¶54} In this instance, we find the issue of the roughly $55,000.00 fund transfer was addressed in the division of property list attached to the divorce decree, where it is shown as a Schwab account with a balance of $55,585.00. See Tr. at 299. The trial court awarded appellee $39,000.00 as her premarital separate property on the Schwab account, and treated the remainder of the account as marital property. The transfer thus did not result in any loss to appellant, and it was not concealed in an untraceable account. As to the tax return issue, appellee testified that she completed her filing on February 5, 2016, three days before the magistrate’s restraining order. See Tr. at 325-
{¶55} Upon review of the record, without condoning some of appellee’s actions, particularly her questionable handling of valuable items in the marital estate, we do not find the trial court erred or abused its discretion in awarding no compensation for financial misconduct by appellee and in dividing the parties’ marital property accordingly. See Koegel v. Koegel (1982), 69 Ohio St.2d 355, 432 N.E.2d 206 (emphasizing that a trial judge should be given wide latitude in dividing property between the parties).
{¶56} Appellant‘s Fourth Assignment of Error is therefore overruled.
Appellee Andrea’s Cross-Appeal
I.
{¶57} In her First Assignment of Error on cross-appeal, appellee argues the trial court erred in its calculation of the growth of appellant’s deferred compensation account for purposes of determining appellant’s separate property value. We disagree.
{¶58} Pursuant to
{¶59} Trial court decisions on what is presently separate and marital property are not reversed unless there is a showing of an abuse of discretion. Valentine v. Valentine, 5th Dist. Ashland No. 95COA01120, 1996 WL 72608, citing Peck v. Peck, 96 Ohio
{¶60} The parties in this instance stipulated that appellant‘s deferred compensation plan had a pre-marital value of $234,095.00. Appellant‘s witness and financial planner, Richard Everhart, testified that a reasonable return on the investments he manages for appellant would be between seven percent and eight percent per year. Tr. at 102-103. The trial court ultimately determined the plan had increased in value to $636,301.00 at the time of the divorce, with $328,330.00 of that figure found to be appellant’s separate property, based on Everhart’s testimony that the $234,095.00 premarital investment would have grown at a rate of approximately seven percent per year, over the roughly four-year period of the marriage. See Tr. at 94-95. Decree at 3.
{¶61} Appellee challenges Everhart’s testimony, contending the witness provided no records to show how the plan at issue had increased in value during the marriage, particularly any documentation regarding how much the plan value’s growth was due to new contributions made during the marriage and earnings therefrom, versus growth from passive income and appreciation from pre-marital earnings. Everhart, who is not the
{¶62} Under the circumstances presented, we find no abuse of discretion in the trial court’s reliance on the testimony to calculate a valuation for the separate property component of appellant’s deferred compensation.3
{¶63} Appellee’s First Assignment of Error on cross-appeal is therefore overruled.
II.
{¶64} In her Second Assignment of Error on cross-appeal, appellee contends the trial court abused its discretion in dividing the marital portion of her Ohio Public Employees Retirement System (“OPERS”) pension. We disagree.
{¶65} In a marriage where one spouse has contributed to the social security retirement system and the other spouse to a government pension system, such as OPERS, a dilemma may arise in property division if the parties divorce: “Public employees, contributing to a government pension system, may be penalized because the portions of their pension equivalent to Social Security contributions are marital
{¶66} In the case sub judice, appellee thus specifically challenges on cross-appeal the trial court’s refusal to consider appellant‘s social security retirement benefits vis-à-vis her OPERS pension value. A number of Ohio courts have considered the issue appellee raises, commonly termed “hypothetical social security offset,” sometimes looking to the analysis provided in a Pennsylvania case, Cornbleth v. Cornbleth (1990), 397 Pa.Super. 421, 580 A.2d 369. In essence, under the Cornbleth method, the trial court adjusts the value of the public employee’s pension to exclude a calculated “hypothetical social security” figure, i.e., that part of the public pension which might, figuratively, be considered in lieu of social security benefits. See Stovall v. Stovall, 9th Dist. Summit No. 15335, 1992 WL 236770.
{¶67} Nonetheless, in Bourjaily v. Bourjaily, 5th Dist. Licking No. 99 CA 120, 2000 WL 968509, we declined to mandate the Cornbleth method, and instead cited to our decision in Back v. Back, 5th Dist. Richland No. 99 CA 46, 2000 WL 1622, where we had concluded that the “proper division of retirement benefits” involved subtracting the private sector spouse‘s potential social security benefit from the public employee’s potential PERS benefit and dividing the remaining portion of the potential monthly PERS benefit equally between the parties.
{¶68} However, since that time, the Ohio Supreme Court held in Neville v. Neville, 99 Ohio St.3d 275, 278-279, 2003-Ohio-3624, 791 N.E.2d 434 that “to make an equitable
{¶69} Accordingly, this Court has now taken the position that
{¶70} In the case sub judice, it is undisputed that appellee is a participant in OPERS. The parties stipulated to the court that appellee had a separate property claim for the pre-marital value of her OPERS account in the amount of $37,115.00, while the total value of her account was $55,254.00. See Record at 132, Exhibit A. Appellee‘s witness, Dana Lavelle, testified that he calculated the value of appellant‘s marital Social Security offset, and he determined that the value of appellant‘s marital social security retirement benefits exceeded the value of appellee‘s marital OPERS benefits, and therefore it would be possible to completely offset appellee‘s marital OPERS benefits with the marital value of appellant‘s social security retirement benefits. Tr. at 40-44; Exhibit A at 9.
{¶72} Simply stated, the goal of any property division a court orders is equity. See Hardy v. Hardy, 2nd Dist. Montgomery No. 22964, 2010-Ohio-561, ¶ 14. In light of our holdings in Obar and Runser, supra, we find no abuse of discretion in the trial court‘s decision as to the distribution of retirement benefits.
{¶73} Appellee’s Second Assignment of Error on cross-appeal is overruled.
{¶74} For the foregoing reasons, the judgment of the Court of Common Pleas, Domestic Relations Division, Licking County, Ohio, is hereby affirmed in part, reversed in part, and remanded.
By: Wise, P. J.
Gwin, J., and
Delaney, J., concur.