ENT °^ME SUPREME COL-RT OF OHIO

PETERWOJANt,^^SKI

DefendantaAppei1ant

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^^^ ^RA,H'WOJANOWSKI

P1aintiff-AppeXlee

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On Appeal from the CuyahogaCounty Court of Appeals,Eighth Appellate District

Court ofA^^eal^ Case No.13-099751-

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Memorandum in Support Of m^uri^^ictionOf Ap^^Rant, Peter Wo,^ ^^^^sld

ANDREW J. SliMON (0037264)JAMES L. SIMON (0089483)Freedom Square 11, Suite 1.656ooo Freedom Square DriveIndependenceg OhiO 44131(216) 525-8890

RICHARD A. RABB (0044046)Xoi ^Ves'^ Prospect AvenueSuite 1^^0Clevelan.d, 0-hiO 441.1;(216) 696-142-2

MICHAE-L C. ASSEF ^oo^^^^^^159 Crocker Park Blvd.

Counselfor Appellant Peter 14fa^^anowsT^^ Suite 1400Westlake, OhaO 44145(440) 521-1658

Cot€nsel.^^^.Wojanowskz

APR ^ ^ ^^^^

CLERK OF COURT

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TABLE ^^ ^^^ENTS

TABLE OF AUTHORI^IES,.,s..,<.,os<.a<.,o.>,.>,,.>,<>,<>s,..,<>,,,.,,,>o,<.,<> i^

STATEMENT OF THE CAS^`^AND FAC'I'S...<>,<<„<.e.,..><.>4.>,,..,<.,,..,o.,,.>o,<.,<

THIS CASE PRESENTS ISSUES OF PUBLIC ANDGREAT GENERAL INT^^ST...e..,<.>o„o>,<<>,<>,«,<<„<.e<.>o,oa,>o<>a,<>,<<,e..3

ARGUMENT IN SITP^ORT OF PROPOSITIONS OF IAW ,.>>,«.e<.,o.>,..o, 5

.Propa^^ition ofLaw Number One: Fuftue income which iscontingent on post-ma^^^^ labor ^p-d emp^oymep-t is not. subjectto a division of prr^^^^ in a divorce ^^^^^^^ing.>.<>,<<z,<.e..e..sa., ^>,<>.,<.e<.aa,>

11'ropositaon ofLe^w Nuniber 71voR Courts awarding spousalsupport should be required to specify the basis for the existingaward, and in the extraordinary cases in which lifetime spousalsupport awards are appz°o-oriate, the court should specificallyIaelineate circumstances in i4hfch the obligor can seek a modificat€on.,e. 9

^^^CLUSION <.,4.>„>>,<>„<.a<.,o.,,<.>9.>0,><.,e<..,ao,>a.<,1 13

CERTIFICATE OF SERVICE,,..,o.>14

T^^^ OE .AUT^^RIT^^^

Cases

Brusaw v. Brusaw (Ct. App. 12"' Dist: May 8, 2000), Warren App. Nos,CAg9-03a038, CA-99m04042$ 2000 Ohio App. LEXIS 1942 oa.,a..os.ao,r.ae.....oa

Kunkle v. Kunkle (iggo)f 51 Ohio Sta3d 64.,.... .,,..,e.,..o.vo..,,.a.,os,:s,,..e.,o9,eq.,v,.

Man^^^^aurra v. Man.^^^^^^^ ^^oo^^, 121 Ohio Sta3d 433 ..o..a..r....,...oo..o.,...

Montegue vs ^^ontegue (Ct. App. W^ Dist., Dec, 11p 1997)^ Cuyahoga App,Nos. 712777 718o^ & 71807^ ^^^^ Ohio App. LEXIS 5520 ............ .......

Stevens v. Stevens (1986), 23 Ohio St. 3d 115 .e....,.,,..,e..o,.0<.o4.a,,..o...,,..,e,.a..o..,

Zimrr€^e v. Zimmie (1984), 11. Ohio St,3d 94 .,..,<„<.,a..o.....o..,s,..,..e....oo.ao...,..,,

House Bills

129th General Assembly File No. 185, HB 461^ Section 4, eff. Maro 22, 2013.:o

^tatu^^s

R.C. 3105.171e.,o..o......,e.....va..o...^...,..,a..e.,,..o<.os.a...... <.,e.,e.....04..o..,s,..e..,a,.,,.,

R.C. 3105.18 ,r.,..,e.,...o.:at.a-..,..e..>o..a....,a.ae.se.e......... 9«.9,a,ae.s,..e...o..o,..s..

6,8

'5s 10°13

4° s^10m12

6,8

336

6p4:e

4

49 698-9

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STA."1EMENT OF THE CASE -A,.ND FACTS

Mrs. Wojanowksi originally filed. for divorce from Mr. Wojanowski on February 2-,

2010 ("Wojanowski I"). Mr. Tv+T^^^owksi did not file a ^ounterclaimo.^^ianowski I

proceeded to a five day trial. During the fiftb day of trial, on. November 22, 2011, Mrs.

Wojanowski was permitted to voluntaril)r dismiss her divorce complaint wa.fhout

prejudice. That same day; Mrs..Wqia^ow^ki remfiled her divorce complaint

("Wojanowski 1Y)o

Wojanowski 11 also proceeded to a five day trial commencing on July 17, 201.2e

The final judgment was issued on ^^^r-h 15, 2013.. By the time of the trial of'^`^^janowski

11, the parties' only child was emancipated and the two main unresolved issaies were the

division of marital property and a ^ea^^na-ble and appropriate spousal support award. At

this time, Mr. Wo;anowski was fifty seven years of age, and Mrs Wojanowski was fiftyr

tWoa

Mrs. WojaxaotAysid holds a degree in business administration from the University

of Akron, but was unemployed at the time of fla^ parties' divorce, (Magistrate's Decision

at p. i_8).Mr. W^^^owsid had been employed as a licensed financial advisor since 1989.

(.Ids at p. 17). In 2005, he began his current employment with Mei~rili Lynch. Id. At this

time, Mr. Wojanowski signed an employment contract with Meiz°^.ll Lynch whereby he

soad 5^^rrfl^ Lynch his "book of business," which consisted of his clients and the amount

of assets those clients had under management with ^^rrfli L^mcho (Id. at pP, 3-5)•

In ^xc^iange for bis book of business, Mr. W^janowski was given a "forgivable

loan" which was paid to Mr. Wqjan€^^^ski in monthly installments. Id. Pz°ovided that Mr.

W€^janowski met his contractual obligations, he would only be responsible for paying the

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interest and the income tax associated with the monthly installments. (DR-11. -339379

Transcript at pp. 299-,31.7). At the final 1^^^nng of Wojonowski IIx the last of the monthly

installments of the forgivab1e loan had been paid and the ^rincipo ba1ancehad been

forgiven. Id. However, Mr. Wbjanowska remains subject to a restrictive covenant which

provides tia.at if he migrates ^o ariother^ brokerage firm, he is prohlbited from taking any

part of the book of business w%tb.hixrE. If he were to do so, he would be subject to esNil

liabii.ity.

Through his empl^^^ent contract, Mr. '^^^anowsla also has the potential to earn

fature income by way of the Client Transition Program, ^eeLl^ Benefit Program, and

Awards Program. Under the Client Transition Program, if Mr. Wojanowski elects to

retire fz°om 5^em.i.l1 Lynch, he can receive additional income provided that he remains

employed with ^err11 Lynch in, a consulting capacity in order to transition his accounts

to a new broker. Under the Death Benefit Program, if Mr. Wojanowski dies while

employed with Merrill Lyneli, his designated beneficiaries or his estate will receive a

lump sum.payment based on the size of the book of business he services at the time of

",his death. The Awards Program is an igiee-ntive program whi^^ ^^ivards Mr. Wojanowski

for achieving certain sales goals andmaintaining his empl.oyment with Merrill Lvnch0 .

As a division of property, the trial court awarded Mrs. Wojanowski one half of

any forgivable loan Mr. Wojanowski could hypothetically receive for migrating to

anofk^^r firm, one half of any income he could hypothetically earn under the Client

Transition Program, one half of a^v payments that could hypothetically be made to his

estate or benefician^^ under the Death Benefit Program and one half of all of his

potential awards under the Awards Program. A.i of these future hypothetlcal. payments

however are not marital property

a^e

Regardl^^^ spousal support, the trial. court order-ed Mr.Wqjanowskl to pay Mrs.

'^^jano^ski $4z500.€ .^c^ per month terminable only upon their respective deaths or Mrs.

`^^janowsld's remarriage or cohabitation. The lifetime award was inappropriate as Mrs.

"Arojanowsld is.clearly employable as a degree holding spouse. Worsening matters, th€^

court refused to speci^y the basis for the lifetime award or delineate the € ircumstances in

which Mr. Wojanowslki would be entitled to a ^^ousal. sug^^r, modification. As detailed

below, Mr, Wq.^^nowski. is n^^ ^^^^ject to the debt:or}s prison. di.lemma.

On appeal, Mr. Wpja^^^^^-d assigned as error the dhrision of the above described

fut-are liypothetical eam1ngs, the lifetime aspect of the spousil support award., and the

trial court's failure to delineate the circumstances in U'hgch the spousal support m^^ ^e

modified, along with several other assignments of error. Although the appellate court

ordered a reversal and remanded the matter regarding some of Mr, We^^an-owski's ,

assignments of error, it affirmed the trial court's rulings on the division of these future

hypothetical earnlai^s and the spousal support award.

THIS CASE ^^^ENTT^ ^^^^^ OF PUBLIC ANDGREAT GENERAL DJTEiRMT

'I'he lower courtss rulin^^ regarding the division af property present a lose thread

in the ball ofy^.^r.ia that separates potential future income from marital property. Without

attention from this Court, the proper distinction between the two is at risk of unraveling.

It has long been held that the potential to earii future incorne t^^raugh a professional

degree or license is not a marital asset subject to division. Stevens v. Stevens (1986)^ 23

Ohio St. 3d 115. Instead, the potential to earn future income is more appr€^p.T.lately

considered as a factor in determining the proper spousal support award. Id. But here,

the co€art awarded Mrs. Wojanowski shares of Mr. '^^^anowskl's potential future income

®^®

that, if earned at all, will €^nlv be earned fhr€^^gh his post marital labor and employment

as a licensed financial advisor with Merrill Lynch. The appellate court's ref,i.sa1 to

ov^rturn. these errors establishes the precedent-tbat income derived ftom post marital

labor and employment can be divided as marital property, which is clearly contrary to

the legislature's direction regarding the division of marital property in. RX.. 3105e171,

Additionally, this case presents this Court with the opportunity to correct the

debtor's prison, dilemma which remains a possibility for spousal ^lipport obligors under

the -newly amended spousal support statute enumerated in R.C. 3105e18e Under the

former statutory framework and this Court's ruiing in Madelbaum v. Mandelbaum

(2009), i ,) i Ohio St,3d 433, a court €^^'ly acquiredjunsdaction to consider a spousal

support modification if there had been a substantial change of circumstances which was

not "cr^iiteinplated"or "foreseeable" at the tamo of the original decree. Mandelbaum

grew problematic because courts -viewed events .sucb as retirement or disability as

"foreseeable" or "contempiated"' changes of circumstances denying the court ju^°asdiction

to consider a spousal support modifications As sucli, events such as retire^^ent or

disability couXd. not be used a basis for relief from a spousal support obligation. Spousal

support obligor's found. tliemseives in "debtor's px°isori55 b.aving toforgo retirement to

meet their spousal support obligations or face contempt proceedings in the event of a

disabii.ity.

The legislature responded with amendments, specifically to R.C. 3:105.^8^^^. As

the House Bill proposing the changes indicates, the amendments are i^^^ended to

abrogate Mand^^^^urn. See 129^h Genex°i! Assembly File Noo x85, HB 461, Section 4, effo

Ma^. 22, 201.3, However, whether the modification request is analyzed under the old or

the new framework, the debtor's prison dilemma remains in the extraordinary cases in

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which lifetime or ind.^finite.^^ousal support. is awarded. According to..th1s Court's .

precedent, such awards are only appropriate in cases involving long rnarriagesy parties of

advanced age, or an unemployable spouse. Kunkle v. ^un,^^^ (iggo)x 51. Ohio St. 4d 64.

Under Mandelba-ura^ and newly amended R.C. 31-05.18, the obligor can only have iheir

request for modification reviewed if it can be established that a substmitaal change in

circumstances has occurred that was not taken into account by the court as a basis for

the existing spousal support award. Because under Kunkle, the parties' ages and

employment must have been taken into account by..^^^^ court as a basis for the lifetime

spousal support award, circumstances sueb. as retirement or decreased income cannot

be used as a basis for a spousal support modification. The end result is tbat. the obligor

must forgo retirement and risk contempt proceedings in the event of decreased incomee

In this sense; the obligor,^^f a lifetime ^^ousai. s,xppo^: award is in debtor's pri^ort if the

court refused to specify the basis for the lifetime award or delineate the ci^^umst^^^s

under which the court would acquire ,^tinsdicti^^ to review a modificaiton.

By accepting jurisdiction to hear this matter, this Court can solve the deb-torr^

prison dil.^rnma by requiring court's to specifically identitY the basis for their spousal

support w4rardsy and in the extreme cases in which lifetime suppolt is justified, to clearly

delineate circumstances whicb. would entitle the obligor to a spousal support

modification.

AR^^ENT IN SUPPORT OF PROPOSMO:^^ OF ^.^

Propositi^^ of.^^^ ^umb+^r One: Future income which is contingent on post-rnarital labor and employTnent is not subject to a division of property in a divorceproceedrtgs

Marital property consists of all. real and personal property and any interest

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therein that either spouse currowns, or ^^^en^.^ has.an interest in, that was

acquired by either or both during '^^ ^arrin€;, See R.C. 3105,171(A)(3)(a)(i) and (ii),

(emphasis added). Because the property or the interest fherein must be o-ned currently,

the court may not make a property division award that is contingent on the happening of

a f-at^^^ ^vc-rito Z-emrr^^e v. Zimmie (1984), xx Ohio St.3d 94; see also Brus^iv v; Brusaw

(Ct. Apps i2th Dist. May 8, 2000), Warren App,.Nos, CA99W03--038, CA-99-04042, 200€^.^

Ohio App. LEXIS 1942. Furthermore, "[a] professional degree or license is not marital

property and the present value of the projected future earnings of the degreed spouse is

not a marital asset subject to division upon divorce. . . ." Stevensc sz.^^^^ (emphasis

added.); see also Al'oratague v. Montague (Ct. App. ^thDistz, Dec. 11, 1997), Cuyahoga

App Nos. 7.1277, 718s^6 & ^^^^^, IL197 Ohio App. LEXIS 5520. Rather, such potential.

fatur^ earnings must be considered as a factor in determining the proper sp€^-asal

support award under R.C. 3105A8(Q. Id.

ne l.'ower court erroneously awarded each party o-ne half of ariv hypothetical

forgivable loan Mr. Wojanowski may receive in the future, one half of any iatu^^

eariiir^^s he may receive under the Client Transition Program ("="), one half of any

future ^^ymentsthat may potentially be paid to his estate or beneficiaries under the

Death Benefit Program ("DBP"), and one half of all potential future, payMentS that may

be earned through unvested awards under the Awards Program ("A.P")e These potential

futaar^ payments are not currowned by either party, neither party curr

holds an interest in them, nor are thelp assets a^qyired ^^in,g the n.^aXes As su€;h,

they cannot be considered marital pr€^^erqT subject to division. See R.C.

31€35e1.71(2k)(3)(a)(i) aiid (ii)s (emphasis added). Rather, they simply represent potential

future income tb-at Mr. Wojanowski may earn based on his post marital labor and

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employment with Merril Lynch.

As a licensed financial advisor,Mre .Wc^^anOwlsi is compensated based upon the

volume of the b^^^ of business that b.e services witb. Merrill ir,ynch, wb.ich is comprised

of botli the number of clients he has and. the amount of assets those clients have under

management -Arit.h ^erri1l Lynch. (See Magistrate's Decision at P. 3). The trial cOurt

found that the book of business is owned by Merrill Lynch, and not the parties.

(Magistrate's Decision at p. 8.) The trialcourt further found that any potential value of

the book of business is defeated by the restrictive c€^^^^ant. (Id at 4; Plaintlf^^ Exhibit

26.). If Mr. Wojanowski attempts to take any part of the book cif business he s^m'ces to

ano-ther brokerage firm to receive another forgivable loan, he could be sued by ^errfll

Lynch for a breach of the restrictive covenarito. (See (DR--11-339379 Transcript at P. 323;

Magistrate's Decision at PP. 7, 8).-

Notwitb.sta^°^ding the effect of the restrictive covenant and Merrill Lynch's

ownership of the book of business, the lower courts awarded Mrs. Wojanows1^ one half

of any forgivable loan that Mr. ^^janowski bypothetically ma^.r receive if he violates the

restrictive c€^^enant. ^iid hijacks the book of business as he migrates to another 1"ax°m.

'fliis is obviously not ^ari.tal. property; rather, it represents potential future income that

is contingent on numerous future events, many of Uyb.ich would be detrimen.tal to Mr.

'"Tojonowski. The courts were silent on Mrs. W^jano-^sld.'s liability if Mr. ^^janowska

were unable to meet his contractual obligations and was forced to pay the balance due

on ^^ieb a hypothetical forgivable l^an or Mrs. '^^ja^owsld's liability if Mr. Woja€^^^ski

were sued for breach of the restrictive covenant. (See Magistrate's Decision at p. 9 .) .

Under the CTP, eligible financial advisors, who elect to leave Merrill Lynch wiIi.

have all of their accounts transferred to other Merrill Lynch agents. The departing

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advisors then have the opportunity to receive a percentage of the commissions earried

on his or her accounts that are transfe.rred if OL} they are eligible for the CTP, (2) they

provide consulting. services after their departure and (3) they maintain. tlleir registration

with Merrill Lynch.(Plaintiffs Exhibit 37 at P. 33). Th.e C`1":P likewise is not an asset or an

interest in an asset currently o^-ned by the pa-rtles, Rather, Mr. WpJ^.,.^owski wPil not

receive any benefit unless he meets all three (3) forgoxn,^ conditions throughout his

fatu^^ performance with M^rrfll Lynch. As they are potential future payments

contingent on his post manital labor and employment and are not currently possessed,

any payments that Mr. Wojanowski may or may iiot receive under the CTP should not be

subject to a division of property. See R.C. 33.05,171(A)(3)(a)(i) and (ii)y, Zimmte9

Montague, ^^ipra; see also Brusaw, supra.

'Under the DBP, a financial a&risor will receive a payment only if he or she dies

while stlll employed with ^errill. Lynch (Plairit^^^^ Exhibit 37 at P. 33.). In that event,

the deceased advisor's estate or beneficiaries wi.Il receive a one time payment equal to

one year's cor^inissioii attendant to the book of business fhe dec^^sed. financial advisor

services for Merrill Lynch, based on the twelve most recent months of production. (See

(DR-I.-1-339379 Transcript at P. 315.). Mr, Wojanowski's estate or beneficiaries will. onlv

receive the benefit if he dies while still employed with ^^err1l Lynch. Any sucli benefits

wouId be based on lbis twelve most recent months of production prior to his death. (See

id.). The parties have been divorced for wc-11 over twelve months. Any payout would

necessarily be based on his twelve most recent months of post marital work. This

income is necessarily contingent on Mr. Wojanowski's post marital labor and

employment and it likewise should not have been divided as marital ^^^^erty,

Under -the APs Mr. Wojanowski has the potential to ^arn. additional ftiture income

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by way of award a^^^untso (See Plaintiff s ExhibitS 29m32e). AP awards are granted fmr

hitti-iig performance objectives, but they do not vest until a specific future date, provided

that Mr. Wojanowsld maintains his employ^ent and performance with Merrill Lynch.

Id,The majority of these awards are unvested, meaning Mr. W€a^^owks-i has no

property right associated with them. Id. The majority of the awards wll not become

property uiitil they vest in 2oi-9. 'I'he unvested awards are likewise not marital property

because the reeiization of their potential income will not occur without Mr.

Wojanowsld's fLiture non-marita1 employment and performance.

Ir^^entbve compensation programs similar to Mr. Wo,^^iiowskigs are commonplace

throughout the corporate workplace. They serve as an employee's incentive for

performance, and disincentive for departure. Such f€xture iiieentive compensation is not

^ur^^^^ owned by any employee and, in a divorce or dissolution context, the

reai.i.zation of such future income is necessarily contingent on post marital labor and

employment. Sudh potential income which is contingent on post marital labor and

employiiient does not constitiite marital property subject to division as contemplate€l. ksy

R^C. 3105J.71,

Proposition ofLaw Number Two: Courts awarding ^^ousai s€ipp€^^ should berequired to specifv the basis for the existing award, and in the extraordinary cases inwhich lifetime spousal support awards are appropriate, the court should spec.e.^calllydelineate earetimstances in which the obligor can seek a modification.

Under the existing court order, Mr. Wc^jarrowsld is obligated to pay Mrs.

W€^ianowsld $4s500s00 per montb. as spousal suplaor-t throughout her lifetime. While

jurisdiction was reserved to mod.ifv the award, the trial court did not specifically

delineate what fhe basis for the lifetime ^ward, nor did the trial court delineate the

circumstances in which Mr. Wojonows1^. would be entitled to a modification. The trial.

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court did however engage in a lengthy analysis of each factor enumerated in R.C.

3105.i8(C) and made factual ffndin^s as to each factor, including Mr. Wojanowski's age,

various medical conditions, employrnent and retirement benefits. As the order stands,

all of thesefact€^^s were "taken iiit^ account by the court as a basis for the existing

award" as contemplated by newlv amended R.C. 31.05.^8(F) which governs spousal

support modifications. 1-Furthermore, any future changes to fhese factors are foreseeable

under the AfandeI^^um standard. As a result, Mr. Wojanowski is subject to the debtor's

prison dilemma as circumstances such ^.^ his retirement or his inability to work for

health ^^^^onswxll not entitle him to a spousal support modi.ficationo

Spousal support modifica.ti.ons are governed by R.C. 3105ei8(F), which under the

new amendments provides that the dhange of circumstances that is the basis of the

spousal support modification must be substantial and that it must not ^^ taken_int^

^^co-unt by the parties or the court as a basis for th^ ^^stin award vrhen it was

established, regardless of whether the change of circumstances was foreseeable. The

question now k^er-omes {{ivhat ivas the basis for -the court's existing award?" If t^e alleged

substantial change in circumstances was a basis for the existing award, then a

modification cannot be granted.

Juxtaposing newly amended R.C. 3105o18(F) with this Court's precedent in

K^a^^^^ regarding lifetime spoiisaI. support awards illuminates the debtor's prison,

d.iXemma. As this Court espoused in Kunkle, lifetime or indefiaiite spousal support

awards are inappropriate in the "vast m;a..^ority" of cases, and can only be justified in

cases involving long marriages, parties of advanced ages, and an unemployable spouse.

See Kunkle, supra. Therefore, Kunkle mandates flia-^ a court awarding a lifetime or

indefinite spousal support award take into account the parties' ages, heait:^ conditions

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and earnings ability as a basis for the award. The existing lifetime award must

necessarily be based on the obligor's advanced age and prospect of retirement. A^.. such, a

lifetime o'bligor cannot use his or her desire to retire at a reasonable age as a basis f^r a

n-iodification of the existing ^wa-rd. IVitlg newlv amended.R,C. 31_05ei8ffl,1^^w will

lifetime obligor's ever retire? In light of the amendments, Kunkle needs tr^ ^e revisted as

the debtor's prison dilemma remains alive and wellv .1' .. ^same dilemma is e)dstant under

the for^^eeability standard espoused bg^.Alandelb^um,

Here, the court specifieally took note that Mr. Wqjan.wAy^^ was fifty ^^^^^^ years

old at tb.e time of the divorce. (Magistrate's Decision at p, 18.). The court also took into

account Mr. W€^^^iiowsld.ss income and all. of the parties5 various reti^^nient assets. (Ido

at pp. 20•-25o)o Further, the court took into accotaiit Mr. Wojanowsldi's various health

^concerns including allopecia. universalis, asthma, arthritis in his Iowerback3 bursitis in

his right arm, a broken needle in his hi^^ eczema, foot paiigs a c;ompromised. immune

system, neuropathy, cardiac. mitral valve prolapse, stress headaches and severe

emotional trauma. (Id. at ig,).

IfMr. Wojanowski,,vishes to retire, he will be held in ^enitude by liis spousal

support obligation because the ^ou-rt specifically took into account his age of fifty seven

and the parties' modest retirement benefits in arriving at its lifetime award, ff he

chooses to retire at a ^easoriable age, he will no longer be able to fund his $4F500.00 Per

month obligation to Mrs. Wojanowski and he will put himself at risk of being held in

contempt. In the alternative, MW Wojanowksi co^.-^Id attempt to receive a modification

just prior to his retirement so as to avoid. the risk of coritempt. But, ^^ca^^^ he would

necessarily still be working at the time of making his modification request, his

modification request ^ould not be ripe. R.C. 3105J8(F) doesr^ot ^^o-v-ide that a party

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may receive a spousal support modification based on a conten-i^lated substantial change

in circumstances that has yet to occur. Eit^erway, Mr. W^janawski has no ^eai.

opportunity -for relief. Or, if any one of Mr. W+^^^owsid.'^ numerous medical allmer-ts

taken into a^^ouiit by the court were to prevent bi^ from wc^rkii$^ or from working the

sixty,hs^urs per wed& fhat he is aec-€istomed to, he will not kwe able to receive a

modification of his substantial spousal support obligation. In this sense, Mr.

Wo,^onowslki is being beld in debtor's p-risono

I'hi^ ^ourt was weary of the debtor's prison dalengma. nearly twenty five years ago

iri Kunkle, as fhe Court explained "an a-ward of sustenance dii^^ny should provide for

the termination of the award, withiii a ^easoriab1e time and upon. a date certain, in order

to place a definitive limit upon the parti^^'rigiits and responsibilities," ^unkle, supra.

No one should be denied an ^^^^rtunity..to retire simply because they were once

divorced. Nor should anyone be forced to continue to pay the same rate of spousal

support after health conditions ^ave. decreased or terminated their ability to earn

in^ome. But even in the ivake of newly amended RXo 3105e18, the debtor's prison

dilemma persists.

How can the debtor's prison dilemma be eradicated? Accepting jurisdiction over

this matter presents the Court with an opportunity to create a solution. In all cases in

which spousal support is awarded, requiring -l-^e court to specifically id^ntify the basis of

tlie. award,"iil promote ^la-rity iAhile curtailing contentious post decree litigation and

injustice. In the extreme cases inwYhich a lifetime or indefinite spousal support award

would be appropriate, the court should specifr that an anvoluntar. v termiigation or

decrease in earnings due to obligor's health i^dli not foreclose the obligor from receiving

a modi^-zcatxon and further specify that the obligor's desire to retire at a reasonable age

-12-

will aewise not foreclose the obligor from receiving a modification. The court could

even go as far as ^uggestin^ what a ^°easoz^.able retirement age may be and. couad look to

the ^^eW Security Administration's retirement schedules for guidance.

All of the forgoing suggestaoxis woti1d advance Kunkle's desire to pz°o-vide

reasonable limits on divorce litigant's responsibilities to one another. Most impoz°tantlvs

the forgoing suggestions would finally put an end to -the debtor's prison that Mr.

Wojanowski and similarly situated divorce lzt^^a-nt^ remain subjected to,

CONCL^^^^^^

lVithout attention from this Court, the line between potential future income

and mant.al property has been blurred. Furthermore, lifetime spousal support awards

will continue to be uncurtailed and fhe debtor's prison dilemma will persist.

Respectfully Submitted, ------

^^^ ^ p IWO-N------(---0_0^--^_6^^----------------

JAMES L. SIMON (oo89483)Freedom Square H, Suite 1656ooo Freedon^ Square DriveIndependence, ^^^^ 44131(216) 525-88go

Counsel^`r^r App^^la-nt Peter4'o,^a-nowski

^l^a

CERTIFICAT^ OF SERVICE

A copy of the foregoing has been served upon Richard A. Rabb, Counsel for

,t^.^p61^.ee at it^^. West Prospect Avenue, Suite :^8oo} ^;levela^ad.a Ohio ^.4^.:13, and M:^chmel C.

Assef, ^ounsEfforAppealeeat 1^^ ^rocker ^lvd., Suite 1400, Westlake, Ohio44145'. onthi.s

^f^!`4'da^ of Aprfl 2014^ by ordinary U.S. ^iai1.

-----Y4^^^^^^4^ = .......... ..

JAMES L. SIMON - 0089483

^^^^^^^lfibrAppellantxPeter Wojanowski

-14-

^^^ 2 7 2014

Court of ppeat^ ot binEIGI-ITIJ APPELLATE DISTRICT

COUNTY OF CLTYAHOG.^

^^^^NA:^ ENTRY AND OPINIONNoQ 997'aI

DEBORAH WOJA^^^^^^

PLA^^^IFF-APPEI.rLEE

vs,

PETER INIOJANO^^^^^

DE^^^DAN'I`-APPEIaLANT

JUDGMENT:A.^^^RTINIED IN PART, REVERSED IN PART,

AND REMANDED

----------------------------- --- ---------------- - --------

Civil Appeal from theCuyahoga County Court of C®rrimon Pleas

Domestic Relations Divisioll.Case No. D-339379

BEFORE: ^cCormack, Jo, Boyle, A.J,, and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: February 27, 2014

_g_

^TTORNEYS FOR APPELLANT

AncI.^ew PJ, SimonJames L. SimonPreedorr^ Square 11, Suite 1656000 Freedom Square Dr^vclIn.d^^^c-n^ence, OH 44131

ATTORNE'^S FOR APPELLEE

Richard. A. RabbKaitlyn. D. A^thiirsMcCarthy, Lebit, ^^^^tal. &J',l^'^^nan^^^^ West Prospect AvenueSuite 1800^^^^e.land} OH 441,15

F:LED AND JOURNALIZEDPER APPA, 22(C)

^^ ^ ^ ^^1^

CUY C. ^`'" C E,^ R.'^^'^ ^ , fi^ ^ ^ ^'PEALS

L; ^ ^ ^ ^By

TI1^^ McCORMACK, J,;

JTl} Peter Wojanowski ("Husband" hereafter) appeals the domestic

relations court's i udgn-ae^^ entry of divorce. He claims the court ab'u^ed its

discretion in dividing the parties' property, awarding spousal support, a-nd

grantin^° attorney fees. After acaref^l review of the r€;cord. and app.^eab') u law,

we affiirw. the trial court's judgment in part, reverse in part, and remand the

ma^-L^r for fu_r.^the'r proceedings consistent with the opinion.

Pr^^edural .^^^^^ory

1$2) rPhe Wojanowskis were married in 1987. They have a daughter, who

wa^ born in 1992 and emancipated when she graduated from h.^^li school i.n. June

2011. In February 2010, Deborah Wojanowski (GrWife" hereafter), age,52, filed

for divorce from her husband, age 57. In November 2011, she dismissed the

action but refiled it days latero

(T3) Husband has been a faiaancial. broker since 1989. He was employed.

by AG Edwards, and then by Smz9;h. Barney, before joining his eurreni; employer,

Merrill Lynch, in ^^0k' ). Wife had a degree in business admznistx^a luzon but had

not worked outside the home ^^^ice 1992, when. the couple moved from California

to CleveIand.. Her only employment since 1992 was selling Mary Kay ^^smevac

products for a brief period of ^irne.

^^^) Wife has an assortmei-i^ ^^phy^sical health problems. She suff^^^^^

cl-ronic pains in her ankles, knees, and back, a^cl had. undergone iiiultiple

11

Ci'pert3o e,`di to I 1"eflher back paY7.1, She also s.ffeY`Ld p^^.l.m'; in hee.' ^egy "ass (3ci Q1tE;^^

^^^^i a diagnosis of M:S,`s as noted. b-v a neurologist. On€, d^^tor had told her Umt

h.er blood work revealed Itipus and rheumatoid arthritis. In addition to d-ls,se,

physical ailments, ^^ie also suffers from depression and. aiixietv. A letter from

her doctor indicated that ^^^^ was inc:^j.pabl.e of working. She inad^ ^^^^^e c ff-o rts.

liowe^er, tozm^^o"'r^ ^^erjcab skills sinc^.2 she f.iIed for divc^rce. H.u:^hand also lifE^^

certain medical problems, but they di.d ^^^^ seem to impact hi, ability to work.

{¶5} A five-day ^^earir^^ was field by a magistrate over the divorce

complaint. Iz a 36Ypa^^ ^in^le^^^aced decision, the ^iagi^trate divided the

parties' ^^^^^^ty, awarded sp€^^sal. support, aiid granted attorney fees sought by

^ife. The trial court adopted the ^^iagzstrateFs decision without modifiuat.i_on3.

0-1,6} Hiisband now appeals, raisi^^g three assignments for our review.

The three assignments of error concern (1) property di^^^^^il; (2) spousal support,

and (3) attorney fees, respectivelya We review these assigrament-s with the

recognition that, as a. ^eneral. rule, an appellate court reviews a trial court`s

determinations in a dom^^tIc relations casefo^ an abuse of discretis^ii. Kehoe v.

1,6ehoe, 2012-Oh.io-3357, 974 N.E.2d 1229 (^th Dist.).

B^^t A-s-simnmeni^f E4 rx°n^r^prop t I)i,mLjsiO4

1117) ^_^nder the first assignment of error, Husband claims the trial court

(1) made erroneous divisions of his poten€;ial -future income based on his "book of

business , " (2) failed to divide the proceeds of a sa_^.e oi the marital residence,

(3) made mathematical errors in d.ividing the partius" bank accounts, (4) failed to

vaiuato the parties' personal property before ordering each party to retain

property i.n. their respective possessions, (5) erred in awarding a. life insurance

policy to 'Wi.i`e, (6) erred in granting Wife half of potential finan-oial awards he

could receive from Merriia Lyrzoh." and (7) erred irt granting two Merrill Lynch

accounts to th.e.ir daugiitor,

fT8) :ina divorce proceeding, the div:.sion oi`^.^.axital and separate property

is ^o^rer^.ed. by .^,. C. `^ 105. 171. The statute directs a tr i a^. court to doterm^..^^.e what

constitutes marital property and. separate property, and to "£davzde the marital

and separate property equitably between the spousos." R.C. 3106.1.71(B),

f 91 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

shou'I d not be reversed unless it has abused its d.isox°etion. €_;herry v. Cherry, 66

Ohio St.2d 348, 421 N.E.2d 1293 (1981), An appellate oourt will not disturb the

trro.al cou-rt's distributao.n. of marital property absent an abuse of disoretion. Booth

v. Booth, 44 Ohio St. 3d 7_42, 541 N.E.2d 1.028. It has long been established that

broad discretion is vested in the trial court to determine an equitable property

divisiori, because "the different facts and circumstances which each divoroe case

presents to a trial court requires that a trial judge bo given w:de iatitudo iP.

11

dividii-i^ property ^^€^twc-;c^^-^ the pax^t^es." Ifo€^^'€:l ^;. Koegel, 69 ^^h.io Sta`^d 355} 357,

432 N.E.2d 355 (1982).

^ TIO) In this case, Husband claims that the trial court; n-iade a MUIti{;Udc=

of errors in dividing the parties' property. In tl-ie fol:owing, we address each of

the a^^^^ed. errors in turn.

-1 ._:^e^;a.r i t, f.A_ i ... ..... ^^^^c p. (:e

1} Husband ar^ues the tria.^. court erred in i'aili^^.g to divide the proceeds

of the sale oi'the marital honie, The marital h^me, was appraised at $310,000 but

subject to a mortgage of $1194}2211.39 as of August 1, 201_2. ei.'he trial court,

adopting the magistrate's decision, ordered. the marital hoiiie to be sold and gave

detailed instructions regarding how the home should be iisted and how offers

should be accepted. However, the tr.iar court, like the magistrate, did not

explicitly divide or distribute the proceeds, apparently i.nadvertently.

(ji 12) Pursuarat to R. C. 31105.171, 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 spouse^. While determining the marital residence to be

marital Dro-perty and ordering its sale, the trial court here failed to divide the

proceeds as required by the statute in its jud^^ent entry.

^ ^ 13) Wife claims Husband waived the error because he failed to challenge

themagistrateYs error in his objections to the magistrate's decisior.^, ai-icl therefore

waived the error. Our review of the ^^^ectians, however, reflects that Husband

did challenge the mag.e.strate=s treatment of the marital residence, complaining

that Wife failed to sell the house duriiig the divorce proceedings to his detri.ment;

and claiming the magistrate should have perialized la^^^ for her lack of efforts.

Although Husband's objections did not specifically state the magistrate should

have expressly divided. the proceeds ^ia the eventual sale of the home, we consider

Husband's objections regarding tile. marital time s uffici^^^tly preserved the error

f.`or appeal purposes. Upon remand, the tria'i court must follow ^^^^ inand_a^^ of

the statute and make an eqiiita^^^ ^visaon of this marital asset.

2. Ca^halac Credit Union ^nd_PNC Bank Accounts

ff" 141 Appa^^iitly the court made some calcula^^^n, errors in Glividi.n^ the

Ohio Catholic Credit Union ar:^ouiit and the PNC money market account.

Regarding the Ohio Catholic Credit Union account, the xnagzstra^^ found a

deposit of $90,134.98 into that account in. October 2010 to be a payinent from

Merrill Lynch and a marital pr€^^ertyo At the time of trial, only $66,831.34

remained. The magistrate equally divided, the remaining amount o£$66,8s1.34.

Regarding the amount that hac^ been expended prior to the, trial, $23,303.64, the

xaagistra^e found H-Lisband had withdrawn a portion of it, $9, 7165,93, to pay for

the monthly ma^^tgago-, ^^^^t had taken the remaining ($23,303.64 --- $9} i66).93 =

$13,5370 7^ ) for n^^-maiital ^^urpt^ses. (.Phe magistrate made an arithmetic error

and stated this amount was $:!_3,^59<^^ when in, fact i.t was $13,5s 71.7 1,) The

a^^ a^,i^;tr^^,^;^: properly determined t^a^.t ^^ii's, should ^^e entitled j;fo half' of' the

amount taken by the Husband from this account for nor^-ma.rit.e^^ purposes, bLrt

went on to state, in error, that Wafc is entitled to $i.3,259.474, whici-^ ^^^^^presenf:s

the ertGi,re aniount. The trial. cour€; adopted the magistr°ate`s ea-rE^ne,olzs

cals^^^lat;i.ons.

(¶15) Similarly, there was a caicLil.atiorfl error in the rnagistrate'u di.vision

of the PNC money ^iiarket account. The magistra°ve found Husband had

withd^aw^^ $1.0,573 and. Wife. had withdrawn,$29000.718, respectively, from this

ac^ourit for nor^-maritai purposes; by the end of the divorce proceedings,

$50,512.37 remained on the account. The magistrate awarded each party half of

the remaining am^iiigto ^lowever, in an, attempt to equalize the, parvies' share of

this aecount and. to a^^ount^or the i'a.znds previously withdrawn by the parties for

^.o^.L^d^.rit^.l purposes, the ^.^ag^.strate, in an. apparent error, awarded the entire

amount of $i.0;5713 to Wife and the entire amount of $2,000.78 to Husband.

Instead, the magistrate should have awarded half of $ 10, a73 to Wif^ 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.

^116^ 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) naotion. She cites We^thoL}er. v. West'nouen, 6th Dist. Ottawa

No. OT-10r037, 201 1.-Oh.io-3610, and Krysa v. Sieber, 113 Oh.io, App.3d 572, 681

N.E.2d 949 (8th Dist.1996), for the proposl.tion. that such errors can on1y be

corrected hv the trial court upon a Civ.R„ 60(1k) motion.

^T171 Neither case stands for the proposition. Civ.R. 60(A.) itself s^ta^^^s

that "[c]lerical mistakes in judgments * * * and errors therein arising from

oversight or omi^sl^ii may be ^or^ected. by the ^^^zrt at any time on its own

initiative or on the inotl.on of any party and after such notice, if any, as the court

ordersoy" (Emphasis added.) The rule permits a correction of clerical errors by the

trial c^-urt, but does not prohibit a reviewing court f^o.m. correcting such errors.

As the Sixth District itself explained in Westhoven, Cl.v.R. 60(A) pernii^s a trl.al.

court to modify a. judgm^nt- if it contains a clerical er.r.or b^t not a substantive

error. Id. at ¶ 12. Krysa involv€;d not Civ.R. 60(_A.j but rather Civ.R. 60(B)

("M.i.stakes; Inadvertence; Excusable negglect; Newly discovered evidence; Fraud")

and lield th.at the trial court ^rc^perl;^^ granted a C1.v,Re 60(B)(1.) motion filed h^l- a

party for relief from judgment on, the gxoiinds of excusable neglect. Neither case

s'Lipports the claim that the calcul.avi^^ errors can only be corrected pursuant to

a CIVaR. 60(A) motion.

3. ^er^onal Pr_^^^rtv

(I' 18) Regarding the trial court's di-^Y.ision of personal property, I-lushand

contends the tri.al court improperly ordered each party to retain p^^^^iial

property in. their respective possessions without first conducting a valuation.

(¶ 19) Again, V1ri.fo claims Husband waivcd the claizn. on -.ippc;al because he

ciid not object to the in agisi,rate's decisie^ii ordering the parties to retain pc:r:acam3.I

property in thc;ii° possession. Our review of Husbamd's obj€sctions to tiic,

magistrate's decision., however, reflect^., that Hiisband clearly c.cyrnplain€:d of'thc!

inagi.stratc:'s distribaiticn of personal propcz ty<

M^^) With respect to the d_%vi.sion of marital property, R.C. 31.05,171.

requires a trial court is to equitably divide and distribute the parties' marital

property. "As a.pract;icai matter, for azi. appellate court to ^eview a tri^a.1. court'.q

division, oi`property, * * * findings oi`vaiue mus¢ be made so that equality of value

may be exs.mine€i.'9 Eisler u. Ea•;sler, 24 Ohio App.3d 151, 1. 52, 493 NaE.2d 975

(I lth Dist. 1^85 )' ). Thus, "it is error for the trial court to fail to inakc a findim, as

to the fair rnarkct vaiiie of each item of marital property so that an appellate

court can effectively review the propriety oi"the court's decision,,y Ir.^. at syilablzs.

See also Taylor u. Taylor, 8th Dist. Cuyahoga No, 86331, 2006^Ohio-1925, 35.

Upon remand, the tria.l court is to determine the value of the items of personal

property in the parties' possession and make an. equitable dis-tribiztion of the

properties.

I _M0tLi^>^ Uni<YmALE0l..^

f ( ^ ^) Husband claims it was an error for the trial court to award a MetLii'e

'Uni^ersai policy owned by Wife without ^'i.rst; establishing its vaiue. Tiie record

contains little evidence before the court for th^^^existe.nce -of this property otiaer

than a fax from MetLife showing a payment of $335 in annual payrnent in August

2010. Noting the dearth oi"evidence showing the naLure oi'the MetLife policy, let

alone it8 value, the magistrate det^rmiiied it should ^en-iai.n tiZ^ property oi'Wife.

In any event, our review oi°Husband.'s objections to the magistrate's decisions does

not reflect an objection by Hu.^band regarding the disP, osition of tl'i.i^ property;

therefore, Husband has waived the €;iai^^ pursuant to CiV.R. 53(D)(3)^.))(1.v),

a, ^^^rrill. Lyiieh Awards

{¶22) Husband qualified for several M€;rril.l. Lynch awardsa The trial court

determined these awards to be marital property and awarded Wife one iial.i` oi`

each of these awards, on the ground -tlaat the awards were earned during the

marriage. Husband claims the trial court e:r.r€;d because these ^ward-q wi_l.l only

b€; vested years fro^, now, provided he maintains employment with Merrill Lviieh.

(^23) There doesn€a^ appear to be case law directly on point, 'Out t'n^ case

law concerning the distributiora of unvested pension. may provide ^on-ie guidance.

In Pruitt u. Pruitt, 8th D1.st. ^^^ah^ga No. 84335, 2005-Ohl.oLL4424, 1' 62, this

co-cirt, addressing unvested pension and ^^ti^em^iat benefits, noted that these

benefits have va1iae, whether vested or otherwise, and, if ac€;ui-aulated duriiig a

marriage, must be considered. in the equitable division of marital assets. _Td, at

T,1 62, citing Ha^^^r b,. Haller, 7_2th Dl.st, W a^^^n No. CA95-06-063, 'L 996 Ohio App .

LEXIS 985 (Mar. 1.8, 1 996). See also Lemon z). Lemon, 42 Ohio App.3d 142, 144,

537 KE. 2d 246 (4th Di.st, 19d8) ("An urivested pension plan has value."). Thus,

applying the principle that empioynient benefits do not have to be vosted f'0r1

purposes of dividing niarital assets upon a divorce, we do not; find the tri.a] court's

division of Husband's employment awards, which were earned during the

marriage, to be an abuse of discy°etion.

_LY.nC_hA ^^^^^,^n^^, -^`^^^b^^^^^^z^l for ^aChij-d

MM The couple established two Merril_l Lynch accounts for. til(lar hi^d

Heather ---- who reached °6-he age of majority dtzrin.g the pendency of the divorce

proceedings. In its judgment, the trial court ordered ^^^^band to "tran.si`ez to

Heather Wojanowq^i all of the funds on deposit in tJI'MA account No. 8:1i.^9901 3

and account No. 8:119971 5." On app€;ai., Husband claims the trial court erred in

awarding the ac€;otints to their child, arguing ti-iai; both ar.e, inariua.i assets and

should be divided between the parties.

{^(25} Otir review shows that t^e first of ^^^^^ two accounts (No. 8 1 L9901 00)

is a ^Jni^'orz^ ``ransfers to Minors Act (^^^^'^^`S^'A") account in the child's name: the

account shows its owner as "Peter Wojanowski C/F Heather M Wojanowski

UTMA/OH Until Age 2:i,,

{T126} R.C. 5814,03 provides that a gift or transfei• to a minor child inad^

pursuant to the Transfers to Minors Act is irrevocable and conveys to the minoi°

indefeasibly vest€;d. legal title to the property. See also Ityder v. flyder, 9th Dist.

Wayne No. 06CA0014, 2006^Ohi.oa05285, T, 7-9; LCP Holding Coe v. Taylor, 1.58

Ohio App.3d 546, 2004-Ol^i^^-53.^^'1, 817 ^i,Eo2^: 4 r'^^; ^^e 3 ^1 i^^ Dist.). The court

in ^a'r^'^er° held that ^JTM^. accounts co^.zd r^.ot be characterized asm^.xita^. assets

because the parents had ri^ property In^^^^st in ^^em. Id. at i; 9.

(T27) Here, the magistrate, citing _I^vderz properly concluded that the

UTMA a^^^untas not marital property. However, both the magistrate and the

trial court ordered the funds of the accoiant "trargsferred" to ^^at1i^^. This

appears to be unnecessary, because Heatlier is the owner of the account, and

Husband, as the account'^ ^iistodian, has no rights to the account, once she

reached 2 L

^^^^^ Regarding the second account (No. 8I^997 15), our review of a Merrill

Lynch account statement shows that this is aia "Education ^av.^ligs" account. The

account owner is listed as "MLPF & S CI^ ST FPO HEr^^^^^^ ^^JANOWSKI

MLESA PETER WOJANOWSKI GDN," It is uiaclear what some of the

^^'Dreviations designate, and the record reflects no other inforina;;%on about this

account, other than the fact that this account was established by the couple to pay

for Heather's education.

} 129g The magistrate stated that, although this account does not appear to

have been established pursuant to the UTMA, there was no reason not -tr^ 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. Or,

appeal, I-lu^band claims this account should. be divided as a marital a^set.

11

^^1309 'Phis account, 1"£;forrC'.d. to as a17. "Education Savings" ac'b,'i)uI7t. in ta1E'

account stat€ anent, appears to be a `6Coaierde1l Education Saviiigs"y account, As

such, the owx^ers"nap, beneficiary, and use of the ftzr^^^ of t"ne account Issubjec:t (M

I.RES' re^,,ula^^ons, The magistrate properly obs^rved. that the parties' original

purpose should be given ef'f."ect, ft ig uricic-ar, however, whef;h(-r the accounv could

be "trazis^'erz°edy" uo Heather, as the trial co-Lir9; ordered in I#^^ judgment entry.

Regardless, the trial court did not abuse its d:iscreti.on in n.^-It-, dividing it between

the couple as a marital asset.

7. ^R:q^^^nd°^__Potgj^.^_ja^. .^u^^:^^, 1^a^^^:. n ^,^is._^^^ot^ . ^^^_^^^,^^^

3 1} The trial court awarded Wife half of Husband's future earnings as a

financial advisor uiid.^r various Merrill Lynch compensations ^^^^rains for its

financial advisors. All these potential future earia.ir^^^ relate to the unique way

liusband is compensated as a financial advisor who has a "book of bu.siness." The

"book of busin.ess" includes the number o:ic clients and the amount of assets under

n-ianagem.^nt. The potential future earnings awarded by the trial court are aIl.

derived f^^^i Husband's "book of bu.siness,,, which the court found to have been

developed during the marriage.

(1132) One category of income based €^^a the "book of business'a is cal^ed a

"forgivable loan." Merrill Lynch, like other major brokerage firms, awards newly

hired ^`^.nancial advisors who bring to the firm a "book of business" with an u^^

^^ont payment, structured as a "f^rgivable l^an." The amount of the "forgivable

loan" would be based. on the br^^^^^^e .fir.m'^ ^rcljectioii of the new h.ire's pr^^ential.

earnings, calculated or^ ^^hat employee's "book of business" and his or her

productivity over the previous year prior to joining the firm. The aAiount of

"forgivable loan" is an indication of the value of a finaq,dal ad'visor's "bo^^ of

businesse"9 When Husband joined Merrill Lynch as a financial advisor in 2005, lie

received an amount of $485,872 in a "forgivable .^oan."' This amount is not at i^su^

before the tri.al. court, as that amount had been deposited into the couple's bank

accounts, which were divi.ded. as ^arital p^operty:

(1(33) What tcaas disputed is Wife's claim that the "bo'ok of business" is still

a valuable asset and its value should be divided in the divorce. Her expert valued

uhe "b^ol-, of business" at $340f000, based on (D the expert's a-qsumpti®^^ that

Merri_ll. :I,vnch would be required to -pa^ ^iu^^and for his "book of business" if he

migrates to another brokerage firm, and (2) on the amount af "forSiva^ble loan" ^.^

previously received. The magistrate rejected the expert's valuation, The

magistrate noted that Weinberg's valuation. of Hiisband's "book of busiriess" was

premised on t'n^ expert's erroneous interpretation of Husband's emp2^^ymer^^

contract that Merrill I^ynch was required to payiain-i a sum of money for his "book

of business" if he were toleavea The magistrate found the assurxiption. pia^^ly

1 The principle of the "^oan,,A along with interest of 405 per^^iit, was payab^e,in 60 monthly installments of $8,507.50 (exhabit. No. 26).

:^}^c,^.ul^z^;i^ro and flied in the face of the employment co^^t^°a^t u^l^ar^^:^ ^i^;°^^ ^ in

2005, which made the "book of business" Merrill Lynch's proper.°ty.

(1134) Althou^^^ the magistrate found the valuation of t1le "book of'4^u ;l^^^;; ;P,

at $340,000 unsupported by evidence and refused to award Wife half'of whaf: ^^^^e

believea' to be the valuc- ol` t.he "book of business," the ma^^st, rat^e noneth^.^^^^^

^'ound the "the book of business" to kse a marital asset and awarded Wlft-,^ half of

any potential future earnings derivable from it.

(¶35) On appeal, Wi.^e does o.ot, challenge the court's rej^^^ion. of her clai-iyi

that she is entitled to b.all`ol°the value assigned by her expert to Husbarid's `tbook

of businoss „Hushand; however, challenges the court's awaz°d. of haLf of his

potential future earnings based on the "book of busines.set,

{T, 361 Specifically, the court awarded Wifo- hal.l"o.l`tlle marital portion ol`ar^^

paynien^^ Husband may receive under Merrill Lynch's Client Transition program.

Uigder the Client Transition program, a.finan€,ial advisor who voluntarily leaves

Merrill Lynch. will have his or her "book of busliies;" transferred to financial

advisors in Merrill Lynch. The (loparting financial advisor will then receive a

pox ^^^^tage of the commissions earned off the "book of b-usinessq,y in exchange for

provldlng consulting services and maintaining client relationships after h.i.s or her

d^^artureo The magistrate explained that Husband. spent the bulk of the

marriage building up his claoiit base and, therefore, it would be d`gross-ly unfair"

r

to allow Husband to keep all the potential future Incort^e he could receive based

on his "book of business."

a ¶ 3 7) The court also awarded half of any, death benefit Merri-il ^yn€:h. would

pay under its Death ^^yiefit pr€^^ram. in the event I-Tu^band dies while eniplayed.

Under this program, a ^°xnanczal advisor's ^^^Late will recei_^^ one ;^ear's commission

attendanAl; to the "book of business," based on the fi^ianciaI advisor's production

level in the prior year, if the fina^^ial advisor dies while still en-iployed with

Merrill ^ynch.

{¶38} Finally, the court awarded Wife. half of the marital portion of any

potential payment structured as a "forgivable lo.ari," if Husband were. to ^iigrate

to another brokerage firm and, receive such an. upfront payrne^t from his new

er^ployer,

{¶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

d 31, 734, 645 N,&2d 1300 (12th Dist.1994), Heref. the "asset" in the foriii of the

"book of business" was undisputedlv amassed during the course of the ^^^ties' Iong

xx^^^ri-age, The trial court considered it as inari^^ll property and divided the,

m, ar^taI portion of any future incvn-ie Husband may receive based on the "book o-f

business" he developed during th€: marriage. As such, we do 'not find an abuse of

discretion,

k'.

^,,40) q.7he first assignment oi'errcar is sustained in part and f1verr°iflcyd M

part.

a-e-coad &-si nm^nt of :E^rrqre ^ -)opsal Sup ^r°t

^ ^41) I.Tnder. the ^^cond a:^signment oA er°r°or, Hus1:3sxn.d. argues the trial CO Lart

erred in awarding spousal support c^^ $4,500 per month to Wife and in faalin^; to

delt.neat,e the s;ircurnstanc^s upon which t;he^ spousal support may be modified.

fT42) "After a divorce has been granted, the tr°aa^ court is required to

equitably divide and distribute th€; marital estate between the part;zes, and. tc)

consider whetlier an. award of aliniony would be appropriate," See Wolfe u. Wol,f(,,,

46 Ohio St.2d 399, 414, 350 MEe2d 413 (1976),

f 11'43) The trial court has broad discretion in determining wtiet<ii_er an ^ward

of spousal support is proper based on the facts and cir•c un-i sta n^^^ of each case.

Kunkle u. IfLinkle, 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.

IT44} When determining whether spousal support is appropriate and

reasonable, the trial court .r..nust consider the factors set foi°th in

R.C. 3105).18(C)(1). Kaleu^a v.Kale1^ta, 8th Das-to Cuyahoga No. ^^^2'lk, 2013w0hio-

1667, T 22. No single factor, by ata^^^f, is determinative. Id. at Ij 22.

{T45} The t;hir°t^^n factors enumerated in. R.C. 3105.18(C)(1) include: th^

parties' income from all sources, including income derived irrozii the property

division made by the court; the relative earning abilities of the parties; thei.r ages

aiad physical, mental, and ernotional conditions; their r^tireniont benefits; the

duration of the maxri.ago; their standard of living during the n-iarriager the rolavive

extent of education of the parties; their relative assets and liabilities; the

contribution ol'each party to the education, training, or earning abzlitv of the other

party; tax consequences of spoixsal support, and the lost income proc1^^tion

capacity of either party that resulted from that party's marital responsibilities.

R.C. 3105. l8(C)(7.).

^^^^) "The court need not expressly comment on each factor but must

indicate tho ^basis for an award of spo^sal support in sufficient detail to enable a

reviewing court to determine that the award is fair, equitable, and in accordance

with the i.aw,93 Walpole v. W^lpole, 8th Dist. Cuyahoga No. 99231,

201.3-Ohio- 3 529, citing .A.ixletta.

I ^, 47} Here, the trial court adopted the magistrate's award of $4,500 to Wife

in monthly spousal -s upport, but ^ta^ed " [t]he Court shall retain jurisdiction to

modify this or€i.er." The court also notod. that pursuant to R.C. 3105o18(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 leng^hy analysis, which

enoor^passos each of the enumerated ^^^tuto:r^y factors.

IT481 I'ho magistrate gave due consideration to the substantial duxati.oii of

the marriage and om.phasizod Wife's lack of potential to become se1f-supporting

in^ light of her a.iye, her phYs;cal and mental health a'linent4, thc year,-, she, spent

a ^^^^c-maker, aiid her very l.iinit^^ employment history ^^lr1ng the marxiaICYe;.

See Kunkle, 5 J. Ollaa ^t.3d 64, 554 N.E.2d 83, paragraph one of the syllabus (a

spousal award of indefinite duration may be appropriate i^i cases involving a

marrIage of lox^g duration, parties of.' advanced age, or a h^^^emakey^spoi.^se with

little ^^^ortunf^y to dev(-;].^p meaningful employment outside the home, whereas

the payee spouse has th.€^ ^^^sources, ability, ancl poteiatfal tt, he self-suppc;rting).

{1149} In. calculating T-lushand's income -for spousaf support purposes, the

magistrate noted that, because of the complicated way Husband's compensation

iW^ structured as a f`1n^^ic1al, advisor, the most accurate. measure of his ^^^^ome

hi-gto^^ was reflected in the 2008-•2011 ^ompensatlon Summary prepared by

Mc-ri lII Lynch, `rh.e report shows Husband's compensation was $126, 521_,

$138,310, $122,215, $127,066, for 2008, 2009, 201.0, and 2011, respectively.

^150} For the year 201.2, his June 29, 2012 pay stubs shows he earned

$68, 556, 72 for the first half of the ^eax.'i he ma^istx ^,te considered his

corra^^^sati^ii history and extrapolated the airiount of $68,556.72 to arrive at an

annua11nc^^^ ^^$13 7,:11_4 $68,556.72 x 2' ) for spousal support purposes, while,

acknowledging that -th€; actual income for 2012 could be larger or smaller than the

^^^ra^olated amount. Based oyi the estimated aniiual income, the magistrate

awarded Wife a monthly support of $4,500, which, pursuant to a "FIN Plan"

analysis, would give Wife $3, a81 and Husband $4= ^21 to meet their 'iivi.ng

expenses.

5 11 When the r^^ord reflects that the tria^ court considered the statutc^ry

factors and if the judgmer^^ contains detail sufficierit for a reviewir^^ court to

determine that the support award is fair ar-d equitable, we will uphold the award.

Gentile u. Gentile, 8th Di.st. Ca^yahoga No. 97971., 2013-0hio-1338, ^^ 44, citing

Daniels ta, baniel,s, 1.011 Dist. Fra.nkli^.:^. No. O`"1AP-709, 2008 Ohio App. LEXIS 772

(Mar. 4, 2008).

^^^^^ Our review of the record before -u^ 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 Iack. of employment outside the

home during the marriage, the difficulties of ea^tering the workforce at her age,

and the unlikelihood of her developing meaningful employment outside the home,

as well as Husband's ^in^^oyment history and earning abilities. Based on the

record.z we do not find an abuse of discretion by the trial court i^ awarding $4, C50€^

per niorzth.

IT531 Although the trial court did not specify the dur^tion of the spousal

support (other than iioting its termination upon conditions pursuant to R. C.

3105.18(B)), the court specifically stated that it r^ta^^^^ jurisdictioia to mod-Lf^ ^^^

spousal support order.

(^54) A trial court, 1^^^.^ving reserved jurisdiction, can inodif y a p i ^ior o t°(:jc=^

of spousal suppc^rt when the court finds "(1) that a substantial. change in

circumstances has occurred, and (2) Uhat ther: hange was not conve mp 1ate d atfl-hcp

tinic of' the original c^ecree," Mandelbaurrc u. 1111ar'b.d'elbaUM, 121 Ohio SUM 433,

2009-Ohio-1222, 905 N.E.2d 172, paragraph two of the syIlabus. See also Ilotf,tjr

i). Potter, 8th Dist. Cuyahoga No. 9929.7P 201.3-Ohio-3531, ji 1.2, citing

Mandelbaum.

^^^ ^^ On appeal, Husband claims that because of a change in the spousal

stipport statute, he would never be able to dewnonstrate a change of circumstances

warranting a. rriodificatic^^ of the support ordered by the trial ^ourto

IT56} R.C. 310518 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 i.n. ci^cumsuances before the trial court could.

modify a prior order of support. .^l/larbdelbaum at If 29. After Mandelbaun?, ReC.

31.05.18 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 `tJAIhe change in circumstances is substantial and makes the exi.stinff

award no longer reasonable and app^^priate,9' Subsection (F)(1)(b) requires that

"ltjhe change in cir€;urnstan^^s wasnot taken irai'lo 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 c:^reumstances was foreseeable."

M71 A comparison of Mandelbaumx 12:1. Ohio St.^d 433, 2009^0hio-II 722,

905 N.E.2d:172, and the amended R.C. 31005. 1.8 indicates t-hat t-hei.r reqaiiremen-^s

for a modification of suppcart are si.mi.:l.ar: the change in ^^cumstances (1) iriust be

sufficiently substantial to make the exi.stirig award inappropriate, aiicl. (2) must

hav^ ^^en uriforeseen.= i..e., had not been taken in uo account when the priox° support

was ordered..

^^^^^^ Husband claims that he will never be able to demonstrate a change

in circumstances warranting a modification despite the tri.al court's ^^^^rva^ioll

of jurisc'Lle^^on, because, as he argues, the t-r1.a1 court had alre'ady taken into

account IiH7i age, income, retirements assets, and health conditions in its awax°d. of

spou.sa.l. support.

(1(591 HusbaiidFs claim is without r^erit. The magistrate in its decision

specifically stated that "[b]aser^ onthe evidence there is no reasantc3 conclude that

either party's earning a'Dil:i^y wl.ll significantly change iri the foreseeable future.,s

In other words, the record is clear that, in awarding $4,500, the court dl.d not take

into account the possibility that Husband's earning ability will significantly

change i^ the foreseeable future, whether it is due to b1.s health, the economy, or

any other ^eason.s. Therefore, in the event that his income is, sufficiently

decre,asr d. ------- or if there is a significant change1.n. INifers earniiag ability - such

tha^ the ordered support is no longer appropriate or reasonable, Husband will be

able to have the trial court ^econsi.der the ainount and duration o: th^ supPort,

^^ur^su^:^..n^; to ^Z^^ti^. ^^.^;ot^1.^^ 5.^,.r^f^.^.d .t`^a^^^.^a?c^^^^^;^p^^^; 121. Oh^o St.3d ^^3=i, 2^)^^^^-^^^^^^^^

1.222, 905 MEe2d 1.72. P^^^ second assignment of error is wi Lhout meri.t.

Third As^i A.^^^rn y__I"€^

(1160) Under the t;hird assignment of error, Husband conten.ds t'nc, trial

court erred in awarding Wife $25,000 in attorn.ey fees.

f ^^^^ Pursuant f;o R.C. 3105.73(tk), wh-ich goverris awards of'ati;c^^rn^y fees

in a divorce ac9;iOn, "a court inay award aii or part oi'rea.sonahie ati,^rnely's fees

and litigation ^^^enses to either party i^ the court finds the award. ^quitable.;' "In

determining whether an award is equitable, the co-Lirt may consider the parties'

marital assets and iiicomej, any award oi"tempora^^ spousal suppont9 the ^^^iduct

of the parties, and any other xelevanl-, i`actor^s lu-he co,art deems appropriate," Id.

flP ' 62^ ^:An award of attorney fees in a domestic relations action is within the

sound dis^retiori of the trial court and will not be reversed on appeal absent a^

abuse of discretion," Kehoe v. Kehoe, 8th Dist. Cuyahoga No. 99404,

20^.3-Oh%^a-4907; i^ :^.8, citing L^Lt,^eit^Q v. ..^^.re^id^ra 8th Dist. Cuyahc^^a No. 94393,

2010zOhio-5599. ^ 26. "Our review of the award of attorney fees is limited to

determining (1) whether the factual considerations upon w.hich the award was

based are supported by the manifest weight bi` the evidence, or (2) whether the

dornestic relations court abused its discretion." Ger^t-t'lleP 8th Dist. Cuyahc^ga No.

97971, 2013-Ohi.oLL1338R 168, citing Neumann v. lNeumanny 8th Dist. Cuyahoga

No. 96915, 2012rOh.i^^591, T 6, citing Gourash v. Gvur°^-zsh, 8th Dist, (..`°uvahoga

Nos. 71882 and 7397 1, IL999 Ohio .r^^ip. LEXIS 4074 (Sept. 2, 1999), and Oatey uo

Oatey, 83 Ohio App.,3d 251, 6:111.4 KE. 2d 1054 (8th Dzst.:1992).

(^^^) The magistrate, whose decision was ad^^^^d byth^ trial court, looked

to R.C. 3105.73 for au'Llhorizatfon and guidance in deciding to aw^rc-I attorney fees

to Wife. The magistrate f^-u^d Husband's conduct in this case made the chvorce

s^anythixig but routine ancl straightforward," because Husband failed. to ^iirn over

documents in his pc^^^^^s.i.on or to which he had access, in parti.^^lar, documents

regarding Merrill Lynch's compensation pro^.^^.^^s, The magistrate also n.c^te^.

Apzfe incurred addi.ti.onal 1egal, fees after Husband refused to sign a settlement

previously reached in open court and tri.c;d to renegotiate the agreem€;iit,

Husband also ^omplicated. the divorce matter by refusing to acknowledge the

clearly marital ria^ure 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.

(T64) Hu^band.'^ claims that additional ff^^s were incurred. because Wife

dismissed a prior fihng, of the divorce complaint, aiid then refiled the case, and

had four different attorney^s throughout the proceedings. Regarding this claim,

we note that the magistrate ^xcluded. the attorney fec-s incurred by Wi^'e under the

prior fihng. The magistrate also ^^plaiiied that much of the discovery in thi^ case

had been done by prior eou^^el, aiid that the current counsel did not duplicate the

discovery ^fforts.

M651 Otir reading ol" the fee statement submitted by Wife9;

counsel (exhibit No, 73)shows the ainount of fees incurred fi°oi-n Jfzi3uary t^^ ,Rm^^

2012 to be $23,308.54, However, a closer ^xaznination o:^the statenient; shows that

the May 22, 2012 bill orroneously listed Wife's r.•et,ain^r of $10,000, wllich wrg,,^

deposited into thE? TOLTA account, as an i6expensE3,, This erroneous acct3€.€nting

tacc°^rdingly inf``^a^ed the fees by $10,000. Thus, the fees ^orth€^ period of tiine Wift-n

was represented by her current counsel was actua.^^y'$ 13,308,54, not ^23,308.54.

M66) The amount of $13.308.54 represents (1) $5,229.17 incurred between

January 16, 201.2 and April 25, 201.2, (2) $3,229.50 incurred between May 1 and

May 22, 2012, and (3) $4,849.87 znctzrred between J une 5, and,f u.ne 29, 2012, 7°he

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-dagY trial from Jull-Y 1.7

to ^'uly 26, 2012.

(TI 67) Given this record, the tnbal court's award. of $25,000 in aft:srnev fees

is supported by the evidence and within its ^ound ^^^^cretion, We refuse 16-o disturb

it on appeal. Th^ third assignment of error is without inerita

f T 68) The judgment of the trial court is affirm^d.i.n part, reversed in part,

and remanded for further proceedings consistent wzt:^ this opanion.

It is ordered that appellant and appellee share Lhe costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a ^pe€:i.al niandate i^sue. out of this court directing -the

domestic relations court to ^^rry this judgment into execution.

A certified copy of this entry shall constitute the niaiidate pursuant to Rule

27 of the Raz?^^ of Appellate Procedur€=,

/'^^ 1 1161-

'r^M WCO^' ,M_/^CK, JUDGE

^^^Y J. BOYLE, A.J., andEILEEN T, GALLAGHER, J,x CC^NCITR