Alvarez v. Alvarez , 2016 Ohio 3432 ( 2016 )

[Cite as Alvarez v. Alvarez, 2016-Ohio-3432.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CATHERINE L. ALVAREZ C.A. No. 27821
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
OSCAR C. ALVAREZ COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2007-04-1429
DECISION AND JOURNAL ENTRY
Dated: June 15, 2016
WHITMORE, Presiding Judge.
{¶1} Appellant Oscar Alvarez (“Husband”) appeals from orders of the Summit County
Domestic Relations Court ruling on post-decree motions filed by Husband and Appellee
Catherine Alvarez (“Wife”). This Court affirms in part and reverses in part.
I
{¶2} The parties’ 30-year marriage ended in divorce pursuant to an uncontested
divorce decree entered by the domestic relations court in February 2009. The parties’ three
children were emancipated at the time of the divorce.
{¶3} The divorce decree incorporated the parties’ separation agreement. Under the
decree, Husband assumed spousal support consisting of (1) “Level One” support of $7,000 per
month and (2) “Level Two” support of “fifty percent (50%) of the gross amount of all
compensation * * * over and above [Husband’s] base compensation * * * by way of bonus.”
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{¶4} Among other things, the decree also: (1) granted Wife a judgment regarding a
2008 bonus Husband had received from his then-employer; (2) granted Wife a judgment on
temporary support arrearages; (3) established Husband’s obligation to pay certain taxes; (4)
required Husband to make certain vehicle lease payments; (5) required Husband to make
payments due on the first mortgage on the marital residence; (6) required Wife to make
payments due on the second mortgage on the marital residence; (7) obligated the parties to divide
the cost of expenses for major maintenance and repair of the marital residence; (8) granted Wife
the right to live in the marital residence; and (9) required Wife to pay for routine maintenance,
taxes, insurance, assessments, and utilities for the marital residence.
{¶5} Husband immediately began to default on his obligations under the decree. Wife
filed a motion for contempt in March 2009 dealing with, inter alia, Husband’s failure to pay
Level One spousal support. Husband filed a motion to decrease support, citing an annual
reduction in base pay from $205,000 to $185,000. The parties resolved these motions in an
agreed judgment entry dated February 4, 2010.
{¶6} The February 4, 2010 judgment entry, among other things, retained Level One
spousal support at $7,000 per month. The judgment entry also granted Wife a judgment of
$24,398. Of that $24,398, $16,404 was based on past due Level One support and Husband’s
failure to meet his obligations related to: the 2008 bonus; temporary spousal support arrearages;
and driveway repairs.
{¶7} The parties continued to have financial disputes under the decree and also the
February 4, 2010 agreed judgment entry. They filed several motions:
(1) Wife’s motion for contempt (March 2010);
(2) Husband’s motion to terminate or reduce spousal support
(April 2010); and
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(3) Husband’s motion for contempt (July 2010).
{¶8} A magistrate held a hearing on the motions during three days in March, April, and
July 2011. The parties filed briefs in lieu of closing arguments. The magistrate issued a decision
on January 5, 2012. The trial court adopted the magistrate’s decision in a judgment entry on the
same date. The court:
(1) found Husband “in contempt of court for his failure to pay
support, maintenance/repairs, taxes, and [make] payments
on the judgment ordered,” sentenced Husband to 30 days in
jail suspended on conditions, and awarded attorney’s fees
to wife;
(2) denied Husband’s motion to terminate or reduce spousal
support; and
(3) denied Husband’s motion for contempt.
{¶9} Husband filed objections to the magistrate’s decision. He filed a supplemental
memorandum in accordance with local rules.
{¶10} The trial court overruled most of Husband’s objections on February 23, 2015, but
sustained two objections that were remanded to the magistrate for hearing. The parties resolved
the remanded issues in a May 19, 2015 stipulated judgment entry, leaving undisturbed the trial
court’s earlier rulings on the other objected matters.
{¶11} Taking into account the parties’ May 19, 2015 stipulation resolving the remanded
issues, the court found, among other things, that Husband “failed to pay the following
obligations and/or amounts”: (1) $16,531.17 in spousal support for September 2009 through
February 2011; (2) $8,610.98 due to Wife from Husband’s 2009 bonus; (3) $4,350 in
maintenance and repair items; and (4) $1,062.43 in State of Ohio taxes. The court also found
that Husband “failed to pay on the judgment” resulting in a “deficiency for the period of
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September 2009 through February 2011 of $26,028.35 on the judgment previously granted of
[$41,885] (i.e., paid $15,826.65 for the period of September 2009 through September 2010).”
The “judgment previously granted of $41,885.00” appears to consist of a $17,457 judgment set
forth in the divorce decree and the $24,398 judgment set forth in the February 4, 2010 agreed
judgment entry.
{¶12} The May 19, 2015 judgment entry was a final appealable order. Husband timely
appealed from the orders of January 5, 2012, February 23, 2015, and May 19, 2015. He raises
five assignments of error for our review. We reorder his assignments of error to facilitate
analysis.
II
Assignment of Error Number Four
THE TRIAL COURT ERRED IN DETERMINING THAT IT LACKED
JURISDICTION TO MODIFY SPOUSAL SUPPORT BASED UPON NO
SUBSTANTIAL CHANGE OF CIRCUMSTANCES.
{¶13} In his forth assignment of error, Husband argues that the trial court erred in
determining that it did not have jurisdiction to modify spousal support. We disagree.
{¶14} Husband requested modification of his spousal support obligation during a brief
period of unemployment in 2010. Husband’s employer, Lenovo, terminated him on April 30,
2010. Husband began working in a new position with Abbott Labs on June 28, 2010, less than
two months after being terminated from Lenovo. Husband voluntarily resigned from Abbott
Labs less than three months after taking that position to accept a new, higher-paying position
with Loral Space Systems (“Loral”).
{¶15} Husband earned a base salary of $185,000 at Lenovo before he was terminated at
the end of April. When he was terminated he received $14,230.77 for severance pay and
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$3,557.69 for vacation pay. Less than two months after his termination, Husband earned the
same annual base pay of $185,000 in his new position at Abbott Labs. When Husband resigned
from Abbott Labs three months later and began in the position at Loral, he received a $20,000
hiring bonus. Beginning in September 2010 through the date of the hearing, Husband earned an
annual base pay of $200,000, which is $15,000 more than he had been earning at both Lenovo
and Abbott Labs.
{¶16} Husband sought a spousal support modification for the month of June 2010 during
which he did not receive any income. To the extent Husband asserts on appeal that he is also
entitled to a modification for May 2010, we find that he waived any claim for a modification
during May. Husband’s counsel conceded at hearing that any modification would be appropriate
for June 2010 only, stating that “we’re willing to accept that there’s probably only one month
that he’s entitled to a modification.”
{¶17} The trial court held that it lacked jurisdiction to consider a modification of spousal
support due to the lack of a substantial change in circumstances. The court found that Husband
“was paid substantially the same income [during] the time frame of his motion to modify his
support obligation” considering Husband’s base salary at each of his employers, his severance
pay from Lenovo, and his hiring bonus from Loral.
{¶18} We review de novo a trial court’s decision regarding its jurisdiction to modify
support obligations. Smith v. Smith, 9th Dist. Summit No. 21204, 2003-Ohio-1478, ¶ 10, citing
McClure v. McClure, 119 Ohio App.3d 76, 79 (4th Dist.1997). Thus, we conduct a plenary
review of the record to determine whether the trial court possessed jurisdiction in this matter.
{¶19} The Supreme Court of Ohio has declared that trial courts only have jurisdiction to
modify a spousal support award when the divorce decree “expressly reserved jurisdiction to
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make the modification” and the trial court “finds (1) that a substantial change in circumstances
has occurred and (2) that the change was not contemplated at the time of the original decree.”
Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, paragraph two of the
syllabus. “Substantial” in the context of a spousal support modification proceeding has been
described as “drastic * * * material, * * * and significant.” Id. at ¶ 32. Only if the court
determines that there was a substantial change that was not contemplated at the time of the
original decree may the court consider whether the support order should be modified in
accordance with R.C. 3105.18.
{¶20} Husband did not sustain his burden to show that he experienced the substantial
change in circumstances necessary to establish the trial court’s jurisdiction to consider a
modification of his support obligation for June 2010. See Manos v. Manos, 9th Dist. Summit
No. 27335, 2015-Ohio-2932, ¶ 14 (the party requesting a modification of spousal support has the
burden of establishing the need for a modification), citing Tremaine v. Tremaine, 111 Ohio
App.3d 703, 706 (2d Dist.1996). Even disregarding Husband’s severance pay from Lenovo,
which was a basis for Husband’s admission at hearing that he is not entitled to a support
modification for May 2010, Husband’s $20,000 signing bonus from Loral in September is more
than the $15,417 gross pay Husband lost during the month of June when he was unemployed
($185,000 [salary at Lenovo]/12 = $15,417). Additionally, beginning with his September 2010
employment with Loral, Husband’s gross monthly pay increased by approximately $1,250 per
month over what Husband earned at Lenovo at the time he promised to pay $7,000 each month
in Level One spousal support ($200,000 [salary at Loral]/12 - $15,417 [monthly gross pay at
Lenovo] = $1,250). Given the $20,000 bonus and the additional income that Husband received
from Loral close in time to the only month for which he seeks a modification of spousal support,
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we cannot find that Husband presented a change of circumstances that should be regarded as
“drastic * * * material, * * * and significant.” See Manelbaum at ¶ 32.
{¶21} We also find that Husband has not met his burden to show that a one month
period of unemployment was not contemplated at the time the Level One support obligation was
established. At hearing, Husband testified regarding the relevant job market when he agreed to
pay $7,000 monthly in Level One spousal support. He testified, “The market for employment
has been very difficult since 2008. Everyone knows that. Companies have been laying off.”
Given Husband’s knowledge that “[c]ompanies have been laying off,” we cannot find that
Husband met his burden to show that he did not contemplate even a brief period of
unemployment when he stipulated to the support obligation.
{¶22} We conclude that Husband did not meet his burden to show that his
unemployment during June 2010 was a substantial change in circumstances that was not
contemplated when he agreed to pay $7,000 monthly in Level One spousal support. On this
basis, we determine that the trial court did not err in finding that it lacked jurisdiction to modify
spousal support. Accordingly, Husband’s fourth assignment of error is overruled.
Assignment of Error Number Five
THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF
“UNCLEAN HANDS” AS A BAR TO HUSBAND’S MOTION TO MODIFY
SPOUSAL SUPPORT.
{¶23} Husband argues in his fifth assignment of error that the trial court erred in
applying the doctrine of “unclean hands” as a basis for denying Husband’s motion to modify
spousal support. We disagree.
{¶24} As an initial matter, it is not clear that the trial court in fact used the equitable
doctrine of “unclean hands” as a basis to deny Husband’s motion to modify spousal support.
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Instead, the magistrate’s reference to “clean hands” appears to have been in response to
Husband’s complaints about his financial hardships. For example, Husband complained
throughout the hearing that certain income that he was to receive was being captured by the
Child Support Enforcement Agency, at times leaving nothing for himself. We agree with Wife’s
assessment that “[i]t appears that at least with respect to her spousal support determination, the
[m]agistrate’s [d]ecision [as adopted by the trial court] was stating that the trial court would not
recognize [Husband’s] claimed ‘hardships’ that were occurring precisely because [Husband] had
historically skirted his obligations under the divorce decree and prior orders.” We also agree that
“[t]here is nothing remarkable in such an analysis.” See Schaaf v. Schaaf, 9th Dist. Medina No.
05CA0060-M, 2006-Ohio-2983, ¶ 34 (“[T]his Court is hard pressed to see how, outside of his
poor credit and indebtedness due largely to his own failure to pay support payments, [former
husband] is in such dire financial straits to warrant termination of his support obligation.”)
{¶25} Even if we assume for argument’s sake that the trial court misapplied the doctrine
of unclean hands, the error was harmless. See Civ.R. 61. We have found that the trial court
properly determined that it did not have jurisdiction to modify Husband’s spousal support
obligation. Accordingly, any error by the trial court with respect to an alternative reason for
denying Husband’s motion to modify spousal support would not affect the court’s judgment.
Husband’s fifth assignment of error is therefore overruled.
Assignment of Error Number Three
THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
MATTER OF LAW IN FINDING HUSBAND IN CONTEMPT FOR FAILURE
TO PAY ON THE JUDGMENT PREVIOUSLY [ISSUED] AND BASED UPON
ERRORS OF FACT IN THE SUPPORTING FINDINGS.
{¶26} In his third assignment of error, Husband argues that the trial court erred as a
matter of law and also abused its discretion in finding Husband in contempt for willful failure to
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pay spousal support and on the judgment previously granted, and for repairs and taxes. We
disagree.
{¶27} In his opening appellate brief, Husband argued that the trial court’s contempt
finding constituted legal error to the extent it was based on failure to pay on arrearages “which
had been previously reduced to judgment.” Husband asserted that the court was “constitutionally
barred” by Section 15, Article I of the Ohio Constitution from invoking its contempt powers
“once an arrearage [was] reduced to judgment.” However, in his reply brief, Husband
recognized that this Court has held that it is constitutionally permissible for a trial court to use
contempt sanctions to enforce a judgment for spousal support arrearages. In Collette v. Baxter,
9th Dist. Summit No. 25821, 2012-Ohio 1333, we noted that lump-sum judgments for spousal
support arrearages are not “in the nature of ordinary money judgments or business debt” that are
subject to the proscriptions of Section 15, Article I of the Ohio Constitution. Id. at ¶ 10.
Accordingly, Husband’s assertion that the court’s contempt judgment constituted legal error is
not well-taken.
{¶28} Husband also argues on appeal that the trial court abused its discretion in holding
Husband in contempt for defaulting on his court-ordered obligations. We review a trial court’s
contempt finding for an abuse of discretion. Morrow v. Becker, 9th Dist. Medina No.
11CA0066-M, 2012-Ohio-3875, ¶ 47. An appellate court will not reverse a finding of contempt
unless the trial court’s decision was unreasonable, arbitrary, or unconscionable. See Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983) (defining abuse of discretion).
{¶29} Contrary to Husband’s claim, the record is replete with evidence that Husband
willfully defaulted on his obligations under both the decree and the February 4, 2010 agreed
judgment entry. Husband stipulated that he had “failed to pay on the judgment [under the decree
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and February 4, 2010 entry] and there exists a deficiency of $26,028.35 on the judgment
previously granted of $41,885.00 (i.e., paid $15,826.65 for the period of September 2009 through
September 2010).” Husband also stipulated that he failed to pay $4,350 of maintenance and
repair items. Moreover, Husband did not pay his obligations toward state taxes under the decree,
and did not present any evidence that the obligation was discharged by agreement of the parties.
Further, as we discuss below in connection with Husband’s first assignment of error, Husband
did not pay Wife her full share of 2009 bonus payments that he received as Level Two spousal
support under the decree.
{¶30} The record also demonstratively shows that Husband’s failure to meet his
obligations to Wife was without justification, as he was able to maintain an affluent lifestyle
during the same period of time that he did not meet his obligations under the decree and
February 4, 2010 agreed entry. Among other things, Husband: paid more than $1,300 a month in
car payments for himself and his new wife; vacationed in Mexico during June 2010 (the same
month during which Husband was unemployed and for which he sought a modification of
spousal support); and enjoyed a gym membership at a cost of approximately $500 a month.
{¶31} Additionally, Husband failed to notify the trial court or Wife of his change of
address. He used his parents’ El Paso, Texas address on court filings into 2010, even though he
had been living with his new wife in Sausalito, California since March 2009. Husband testified
that his parents only rarely (if ever) forwarded mail. Husband refused to permit his legal counsel
to accept service of process on his behalf. As a result, Wife experienced considerable difficulty
and incurred significant expense in achieving personal service on Husband of her motion for
contempt while trying to enforce her rights under the trial court’s orders.
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{¶32} Under these circumstances, there is no basis to conclude that the trial court’s
contempt ruling was “unreasonable, arbitrary or unconscionable.” Blakemore, 5 Ohio St.3d at
219. Therefore, we find that the trial court did not abuse its discretion in finding Husband in
contempt.
{¶33} We conclude that the trial court’s finding of contempt was neither an error of law
nor an abuse of discretion. On this basis, Husband’s third assignment of error is overruled.
Assignment of Error Number One
THE TRIAL COURT’S DETERMINATION OF THE AMOUNT OF
HUSBAND’S 2009 BONUS WAS CONTRARY TO THE LANGUAGE OF
THE DECREE, INCONSISTENT WITH THE AGREED ORDER OF
FEBRUARY 4, 2010, AND AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶34} In his first assignment of error, Husband claims that the trial court erred in
determining the amount of his 2009 bonus to be paid as Level Two support. He argues that (1)
certain payments he received from his employer did not constitute “the gross amount of all
compensation Husband receives, over and above his base compensation * * * by way of bonus”
within the meaning of the decree, and (2) any arrearage arising from a failure to pay Wife
amounts due to her from the 2009 bonus was resolved under the February 4, 2010 agreed
judgment. We disagree.
{¶35} The decree and February 4, 2010 order provide for both Level One and Level
Two spousal support. Husband agreed to “pay * * * for Level One [s]pousal [s]upport the sum
of [$7,000] per month * * * and for Level Two [s]pousal [s]upport, fifty percent (50%) of the
gross amount of all compensation Husband receives, over and above his base compensation * * *
by way of bonus.”
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{¶36} Having conducted a de novo review, we find that the definition of Level Two
spousal support is ambiguous and reasonably subject to more than one interpretation with respect
to the term “by way of bonus.” See Erwin v. Erwin, 9th Dist. Wayne No. 13CA0009, 2014-
Ohio-874, ¶ 14 (“whether a contract is ambiguous is a question of law that this Court reviews de
novo”). Husband believes that only compensation that his employer awarded as a merit bonus
“based upon production or earnings” is subject to Level Two spousal support. He argues that the
trial court “improperly reclassified” a cost of living allowance, hardship allowance, moving
reimbursement, and non-tax cash adjustment as amounts paid to him “by way of bonus” in 2009
when they were really reimbursements. Wife, on the other hand, argues that a bonus includes
any money or an equivalent given in addition to base compensation, and therefore is not limited
to a merit bonus. She claims that none of the amounts that the trial court included in Husband’s
2009 Level Two spousal support as payments “by way of bonus” were direct expense
reimbursements, but were instead taxable income paid to Husband in excess of his base salary.
Both Husband and Wife advance reasonable interpretations of the meaning of the phrase “by
way of bonus” resulting in ambiguity that cannot be resolved within the four corners of the
parties’ agreements.
{¶37} “Whenever a clause in a separation agreement is deemed to be ambiguous, it is
the responsibility of the trial court to interpret it.” In re Marriage of Seders, 42 Ohio App.3d
155, 156 (9th Dist.1987). The trial court “has the power to hear the matter, clarify the confusion,
and resolve the dispute.” She v. Huang, 10th Dist. Franklin No. 98AP-153, 1998 WL 655409, *1
(Sept. 22, 1998), citing Seders at 157. “The trial court has broad discretion in clarifying
ambiguous language [in a separation agreement] by considering not only the intent of the parties
but the equities involved.” Musci v. Musci, 9th Dist. Summit No. 23088, 2006-Ohio-5882, ¶ 42.
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Therefore, “[a]bsent a showing of an abuse of discretion, an interpretive decision by the trial
court cannot be disturbed upon appeal.” Musci at ¶ 42, citing Blakemore, 5 Ohio St.3d at 219.
{¶38} Here, the trial court did not abuse its discretion in adopting Wife’s interpretation
of the phrase “by way of bonus” when determining the amount of Husband’s 2009 bonus to be
classified as Level Two spousal support. The trial court had the benefit of the transcript of the
magistrate’s three-day hearing, the magistrate’s report, Husband’s objections and briefing in
support, and Wife’s response. After reviewing the record that was before the trial court, we
cannot say that the trial court’s ruling was unreasonable, arbitrary, or unconscionable in light of
the parties’ intent and the equities.
{¶39} Further, the court did not abuse its discretion in determining that the February 4,
2010 agreed judgment entry did not resolve all 2009 Level Two spousal support arrearages. The
agreed judgment entry provided that “[w]ith said judgment, [Husband’s] spousal support
obligation shall be deemed current * * *.” The order was ambiguous in that it did not define
“spousal support obligation” to include Level One support, Level Two support, or both. The trial
court thus had broad discretion to resolve any disputes over the meaning of its own entry. See
Musci at ¶ 42; Henry v. Henry, 9th Dist. Summit No. 27696, 2015-Ohio-4350, ¶ 8 (the trial court
may resolve any good faith confusion pertaining to an ambiguous clause of its own order). The
February 4, 2010 entry addressed a motion for contempt filed by Wife in March 2009 that
involved, inter alia, Husband’s failure to pay Level One spousal support. The motion for
contempt did not raise issues related to Level Two spousal support. Thus, the trial court did not
act in an unreasonable, arbitrary, or unconscionable manner in resolving that the February 4,
2010 order was not designed to relieve Husband of any portion of his 2009 Level Two spousal
support obligation.
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{¶40} We conclude that the trial court did not abuse its discretion in determining the
amount of Husband’s 2009 bonus to be paid as Level Two support under the parties’ separation
agreement. Accordingly, Husband’s first assignment of error is overruled.
Assignment of Error Number Two
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CREDIT
HUSBAND WITH A GARNISHMENT OF $5,300 RELEASED BY THE
COURT’S ORDER OF MARCH 22, 2011.
{¶41} In his second assignment of error, Husband argues that the trial court abused its
discretion when it failed to credit Husband with a garnishment of $5,300. We agree.
{¶42} On the first day of the three-day hearing before the magistrate, the parties
stipulated that Husband’s support arrearages totaled $10,031.17. Later that same month, but
before the second and third days of the hearing, the trial court issued a judgment entry releasing
$5,300 from escrow to be applied toward Husband’s arrearages.
{¶43} During a subsequent day of hearing, the trial court restated Husband’s stipulated
arrearages to be $16,531.17 based on the court’s treatment of a $6,500 amount from 2010.
Neither party objected at the hearing.
{¶44} The trial court used the $16,531.17 figure for Husband’s arrearages in its
judgment entry. It is undisputed that this amount does not take into account the $5,300 that
eventually was released from escrow. It is also undisputed that Husband never received credit
for the $5,300.
{¶45} Wife argues that that the doctrine of invited error bars Husband from alleging
error based on the court’s failure to credit him for the $5,300. The invited error doctrine
provides that a party may not “’take advantage of an error which he himself invited or induced
the trial court to make.’’’ State v. Carswell, 9th Dist. Summit No. 23119, 2006-Ohio-5210, ¶ 21,
15
quoting State ex rel Bitter v. Missig, 72 Ohio St.3d 249, 254 (1995). The doctrine requires “more
than mere ‘acquiescence in the * * * erroneous conclusion.’” State v. Campbell, 90 Ohio St.3d
320, 324 (2000), quoting Carrothers v. Hunter, 23 Ohio St.2d 99, 103 (1970). The appellant
must have been “’actively responsible’” for the error or the doctrine does not apply. Campbell at
324, quoting State v. Kollar, 93 Ohio St. 89, 91 (1915).
{¶46} Here, the trial court restated Husband’s stipulated arrearages as $16,531.17
without giving him credit for the $5,300 released from escrow. There is nothing in the record to
suggest that Husband induced the court’s error. Rather, the record indicates that Husband merely
acquiesced in the court’s erroneous restatement of the stipulated arrearages at the hearing when
he failed to object. Husband withdrew his temporary acquiescence when he filed his written
objections and argued that the trial court erred in failing to give him credit for the $5,300. Under
these circumstances, the doctrine of invited error does not apply.
{¶47} Wife also argues that the court’s error is harmless because the court erroneously
“also gave [Husband] credit twice for the same $6,500 payment he made to [Wife]” with the
result that Husband received “substantial justice” even without the credit and “ultimately
received a result that is more favorable than what he would have received had the trial court
engaged in errorless fact finding.” (Emphasis deleted.) We decline, however, to analyze alleged
errors in the trial record that Wife did not raise in the proceedings below.
{¶48} We find that the trial court acted unreasonably in failing to credit Husband with
the $5,300 released from escrow. We therefore remand this matter exclusively for the limited
purpose of applying the $5,300 to Husband’s arrearages. In so doing, we reject Husband’s
alternative argument that he should be allowed to “withdraw the stipulation based upon
subsequent events [i.e., the release of the $5,300 from escrow].” Husband never moved the trial
16
court to withdraw his stipulation, and he did not argue in his written objections that he should
have been permitted to withdraw his stipulation. Accordingly, Husband has abandoned his right
to pursue such an argument on appeal. See Wilburn v. Wilburn, 9th Dist. Lorain No.
05CA008798, 2006-Ohio-5820, ¶ 32 (in general, an objection must be timely raised to the trial
court or it is waived for purposes of appeal).
{¶49} The trial court abused its discretion in failing to give Husband credit for $5,300
released from escrow. For this reason, Husband’s second assignment of error is sustained.
III
{¶50} Husband’s first, third, fourth, and fifth assignments of error are overruled.
Husband’s second assignment of error is sustained. The judgment of the Summit County
Domestic Relations Court is affirmed in part, and reversed in part. This matter is remanded to the
trial court for further action consistent with this opinion.
Judgment affirmed in part,
reversed in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
17
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
CELEBREZZE, J.
CONCURS.
MOORE, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶51} I concur in the majority’s decision except for the discussion and disposition of the
second assignment of error. I agree that Husband’s second assignment of error is not properly
overruled on the basis of invited error, especially in light of his specific objection to the
magistrate’s decision in which he argued that he was not credited with the $5300 disbursement.
Buttolph v. Buttolph, 9th Dist. Wayne No. 09CA0003, 2009-Ohio-6909, ¶ 21 (“We do not see
how Father ‘invited or induced’ the trial court to exclude the annuity when he in fact objected to
the magistrate’s decision which did not include it.”). However, I disagree that the trial court was
unreasonable in overruling his objection. The trial court concluded that the record supported the
magistrate’s finding and order, and that Husband could not assert new arguments “to support his
assertion of what the original stipulation meant.” See Civ.R. 53(D)(4)(d) (Before ruling on
objections, “the court may hear additional evidence but may refuse to do so unless the objecting
party demonstrates that the party could not, with reasonable diligence, have produced that
evidence for consideration by the magistrate.”). Moreover, the trial court relied, in part, on an
18
exhibit (plaintiff’s exhibit 21) pertaining to the stipulation, which was not included with the
record on appeal. State v. Vu, 9th Dist. Medina No. 11CA0042-M, 2012-Ohio-746, ¶ 27 (“It is
an appellant’s burden to ensure that the record is complete on appeal.”). Because I cannot
conclude that the trial court acted unreasonably in its judgment, I would overrule Husband’s
second assignment of error.
(Celebrezze J., of the Eighth District Court of Appeals, sitting by assignment.)
APPEARANCES:
SHARYL L. GINTHER and KENNETH L. GIBSON, Attorneys at Law, for Appellant.
LISA CAREY DEAN and TODD ANTHONY MAZZOLA, Attorneys at Law, for Appellee.