Allen v. Allen , 2022 Ohio 3198 ( 2022 )

[Cite as Allen v. Allen, 2022-Ohio-3198.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
KAREN S. ALLEN, CASE NO. 2021-G-0023
Plaintiff-Appellee,
Civil Appeal from the
-v- Court of Common Pleas,
Domestic Relations Division
DAVID LEE ALLEN, et al.,
Defendant-Appellant. Trial Court No. 2016 DC 000775
OPINION
Decided: September 12, 2022
Judgment: Affirmed
Ryan P. Nowlin, Schneider, Smeltz, Spieth, Bell, LLP, 1375 East Ninth Street, Suite 900,
Cleveland, OH 44114 (For Plaintiff-Appellee).
Hans C. Kuenzi, Hans C. Kuenzi Co., LPA, The Offices at Pinecrest, 100 Park Avenue,
Suite 210, Orange Village, OH 44122 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, David L. Allen (“Mr. Allen”), appeals from the judgment of the
Geauga County Court of Common Pleas, Domestic Relations Division, overruling his
objections to the magistrate’s decision and denying his motions (1) for additional orders
to enforce the assignment of retirement benefits; (2) to rescind permission to make direct
spousal support payments; (3) to show cause; and (4) for attorney fees. Mr. Allen’s
motions relate to the divorce decree between himself and his former spouse, appellee
Karen S. Allen (“Ms. Allen”).
{¶2} Mr. Allen asserts five assignments of error. In his first assignment of error,
Mr. Allen contends that the trial court erred by excluding evidence regarding Ms. Allen’s
alleged “lack of credibility” and “deceptive conduct.” In his second through fifth
assignments of error, Mr. Allen contends that the trial court erred in denying each of his
four motions.
{¶3} After a careful review of the record and pertinent law, we find that the trial
court did not abuse its discretion in adopting the magistrate’s decision.
{¶4} (1) The trial court did not abuse its discretion in adopting the magistrate’s
exclusion of evidence of Ms. Allen’s alleged pre-divorce conduct. Mr. Allen’s proffered
evidence was not admissible as “other-acts” evidence pursuant to Evid.R. 404(B) as a
matter of law, and the magistrate exercised reasonable control of the proceedings by
limiting the cross-examination of Ms. Allen to the issues raised in Mr. Allen’s motions.
{¶5} (2) The trial court did not abuse its discretion in denying Mr. Allen’s motion
for additional orders. Mr. Allen sought to modify the divorce decree to add additional
terms rather than to enforce it. Without Ms. Allen’s express written agreement, the trial
court lacked jurisdiction to do so.
{¶6} (3) The trial court did not abuse its discretion in denying Mr. Allen’s motion
to show cause. Mr. Allen received all requested documentation prior to filing his motion
to show cause. In addition, based on the decree’s unambiguous language, the
reimbursement payments Ms. Allen received from her employer did not constitute earned
gross income subject to division as spousal support. Further, Mr. Allen stipulated that
issues involving a 2017 bonus were not subject to his motion to show cause.
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{¶7} (4) The trial court did not abuse its discretion in denying Mr. Allen’s motion
for attorney fees for Ms. Allen’s alleged “contemptuous conduct.” Since we find no error
in the trial court’s decision not to hold Ms. Allen in contempt, Mr. Allen’s motion for
attorney fees necessarily lacks merit.
{¶8} (5) The trial court did not abuse its discretion in denying Mr. Allen’s motion
to rescind Ms. Allen’s permission to make direct spousal support payments. The
magistrate’s decision is supported by Ms. Allen’s testimony and documentary evidence,
and we see no basis to disturb its credibility determinations.
{¶9} Thus, we affirm the judgment of the Geauga County Court of Common
Pleas, Domestic Relations Division.
Substantive Facts and Procedural History
{¶10} Mr. Allen and Ms. Allen were married in 1992 and had two children. In 2018,
the trial court filed a judgment entry of divorce, which was subsequently corrected via a
nunc pro tunc entry (“the divorce decree”).
The Divorce Decree
{¶11} The divorce decree requires Ms. Allen to pay spousal support directly to Mr.
Allen, as follows: (1) effective January 1, 2018 and continuing each year thereafter, 45%
of her “total gross annual base salary” and 45% of her “gross income earned through
incentives, bonuses and enhancement income plans,” payable on or before the first of
each month; (2) 45% of her “monthly gross base salary” and 45% of her “gross income
from incentives, bonuses, enrichment income plans, and other income above and beyond
her base pay earned after January 1, 2018,” upon receipt; and (3) 50% of her “gross
income from incentives, bonuses, enrichment income plans, and other earned income
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above and beyond her base pay earned prior to January 1, 2018 and payable in 2018
through 2020,” upon receipt. As “income verification,” Ms. Allen is required to provide Mr.
Allen with her “end of year earnings statement(s) and Federal and State Tax Returns.”
{¶12} The divorce decree divided some of Ms. Allen’s retirement and benefit plans
in the ratio of 55% to Mr. Allen and 45% to Ms. Allen. A list of six plans subject to this
division was attached to the decree as a joint exhibit. Four of the plans were to be divided
pursuant to qualified domestic relations orders (“QDROs”),1 the terms of which were
attached as joint exhibits. A QDRO for each plan was subsequently filed in the trial court.
{¶13} The fifth plan, known as the “2005 Excess Defined Contribution Plan,” is
nonqualified, meaning it could not be divided pursuant to a QDRO. The divorce decree
requires Ms. Allen to pay Mr. Allen’s share directly as spousal support immediately upon
her “receipt/withdrawal.” The decree provides that a QDRO will be issued in the event
the plan’s nonqualified status changes. The decree does not specifically address the
division of the sixth plan, known as the “2005 Excess Defined Benefit Plan,” which is also
nonqualified.
{¶14} The decree provides that “the Court retains jurisdiction with respect to the
QDRO(s) to the extent required to maintain its qualified status and the original intent of
the parties. The Court also retains jurisdiction to enter further orders as are necessary to
enforce the assignment of benefits to the non-participant as set forth herein, including the
re-characterization thereof as a division of benefits under another plan, as applicable, or
1. A QDRO is an order that “‘creates or recognizes the existence of an alternate payee’s right to, or assigns
to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant
under a plan.’” State ex rel. Sullivan v. Ramsey, 124 Ohio St.3d 355, 2010-Ohio-252, 922 N.E.2d 214, ¶
18, quoting the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1056(d)(3)(B)(i)(I), and 26
U.S.C. 414(p)(1)(A)(i).
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to make an award of spousal support, if applicable, in the event that the participant fails
to comply with the provisions of this order.”
The Parties’ Disputes
{¶15} During 2019 and 2020, Mr. Allen raised several issues relating to the
divorce decree.
{¶16} In a pro se letter to opposing counsel, Mr. Allen requested several revisions
to the decree, including provisions dividing the 2005 Excess Defined Benefit Plan in the
same manner as the 2005 Excess Defined Contribution Plan; requiring Ms. Allen to
provide documents and reports relating to all plans; and ensuring he will receive his share
of benefits in the nonqualified plans in the event Ms. Allen should predecease him.
{¶17} A second issue involved Ms. Allen’s receipt of non-deferred bonus in early
2017. Although the decree required Ms. Allen to pay Mr. Allen’s share upon receipt, she
did not do so until late 2019. According to Ms. Allen, however, she had mistakenly relied
on the prior version of the decree that did not contain this obligation.
{¶18} A third issue involved whether Ms. Allen was providing all required financial
documents to Mr. Allen as income verification.
{¶19} A fourth issue involved Ms. Allen’s participation in her employer’s “Financial
Planning Reimbursement Program.” Under this program, Ms. Allen was reimbursed for
out-of-pocket expenses incurred for professional services, such as financial planning, the
preparation of legal documents, and tax services. The reimbursements were treated as
taxable income and reported on Ms. Allen’s W-2 forms but were not considered income
for benefit purposes. Prior to 2020, Ms. Allen was also “grossed up” for the applicable
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taxes. The parties disputed whether Ms. Allen was required to pay a portion of these
reimbursements to Mr. Allen as spousal support.
{¶20} A fifth issue involved Ms. Allen’s untimely payment of spousal support on
two occasions. In October 2019, Mr. Allen received his payment in the mail two days late.
Ms. Allen suggested alternative payments options, but Mr. Allen did not respond. In
January 2020, Mr. Allen received his payment one day late. Ms. Allen suggested that he
authorize her to make direct deposits into his bank account. Mr. Allen declined and told
her to mail the check earlier. Ms. Allen began mailing the checks by the fifteenth of the
month.
Mr. Allen’s Motions
{¶21} In 2020, Mr. Allen filed three motions in the trial court: a “motion for
additional orders to enforce the assignment of retirement benefits”; a “motion to rescind
permission to make direct spousal support”; and a combined “motion to show cause and
motion for attorney fees.”
{¶22} In his first motion, Mr. Allen sought an order dividing the 2005 Excess
Defined Benefit Plan in the same manner as the 2005 Excess Defined Contribution Plan.
He also sought orders requiring Ms. Allen to provide documents and reports relating to
all retirement/benefit plans and orders ensuring he will receive his share of benefits in the
nonqualified plans in the event Ms. Allen should predecease him.
{¶23} In his second motion, Mr. Allen sought an order rescinding Ms. Allen’s
permission to make spousal supports directly to him and requiring her to make payments
to the Geauga County Child Support Enforcement Agency (“CSEA”).
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{¶24} In his third motion, Mr. Allen sought an order requiring Ms. Allen to show
cause why she should not be held in contempt for “multiple” violations of the divorce
decree.
{¶25} Ms. Allen filed briefs in opposition to the motions, and the matter was set
for an evidentiary hearing. Prior to the start of the hearing, the parties stipulated that the
divorce decree would be further amended nunc pro tunc to reflect the division of the 2005
Excess Defined Benefit Plan in the same ratio and pursuant to the same terms as the
2005 Excess Defined Contribution Plan.
Evidentiary Hearing
{¶26} Mr. Allen and Ms. Allen testified at the hearing and submitted numerous
exhibits. Mr. Allen’s counsel testified in support of his attorney fees.
{¶27} During his cross-examination of Ms. Allen, Mr. Allen’s counsel began
inquiring about her alleged conduct prior to the parties’ divorce. The magistrate sustained
Ms. Allen’s objection, stating that it would not consider testimony relating to the time of
the divorce.
{¶28} Counsel proffered Ms. Allen’s anticipated testimony for the record. He
stated Ms. Allen would testify that she pre-planned her departure from the home; she
made plans to serve Mr. Allen with the divorce complaint while she was on an overseas
trip; she began residing at a male co-worker’s home; she removed items of personal
property from the home; she initially failed to disclose the items she removed; she deleted
information and photos from the household computer; and she was dishonest during her
deposition.
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{¶29} During his direct examination of Mr. Allen, counsel proposed to inquire
about “circumstances that occurred at the time of the divorce, that again, give [Mr. Allen]
a reason not to trust his former spouse, and to believe that she would otherwise be
deceptive with him.” The magistrate sustained Ms. Allen’s renewed objection.
{¶30} Counsel proffered Mr. Allen’s anticipated testimony for the record. He
stated Mr. Allen would testify that, in addition to committing the above acts, Ms. Allen
caused difficulty in settling the parties’ divorce and untimely paid spousal support on two
occasions during the divorce proceedings.
{¶31} Following the hearing, the magistrate filed a decision setting forth findings
of fact and conclusions of law. It found that Mr. Allen’s motions lacked merit and
recommended that the trial court deny them. Mr. Allen filed preliminary and supplemental
objections to the magistrate’s decision, which Ms. Allen opposed.
{¶32} The trial court filed a judgment entry approving and adopting the
magistrate’s decision and denying Mr. Allen’s motions, which Mr. Allen appealed. Upon
limited remand from this court, the trial court corrected its judgment entry via a nunc pro
tunc entry.
{¶33} Mr. Allen presents the following five assignments of error:
{¶34} “[1.] The trial court erred in denying appellant opportunity [sic] to offer
evidence regarding appellee’s lack of credibility and deceptive conduct.
{¶35} “[2.] The trial court erred in denying appellant’s motion for additional orders
to enforce assignment of benefits.
{¶36} “[3.] The trial court erred in denying appellant’s motion to show cause.
{¶37} “[4.] The trial court erred in denying appellant’s motion for attorney fees.
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{¶38} “[5.] The trial court erred in denying appellant’s motion to rescind direct
payment of spousal support.”
Standard of Review
{¶39} In reviewing an appeal from a trial court’s decision adopting a magistrate’s
decision, we determine whether the trial court abused its discretion. Nedel v. Nedel, 11th
Dist. Portage No. 2007-P-0022, 2008-Ohio-1025, ¶ 27. An abuse of discretion is the trial
court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v.
Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law
Dictionary 11 (8th Ed.Rev.2004).
{¶40} Where the issue on review has been confided to the discretion of the trial
court, the mere fact that the reviewing court would have reached a different result is not
enough, without more, to find error. Id. at ¶ 67. In addition, if there is some competent,
credible evidence to support the trial court’s decision, there is no abuse of discretion.
Nedel at ¶ 27. When a pure issue of law is involved in appellate review, however, the
mere fact that the reviewing court would decide the issue differently is enough to find
error. Beechler at ¶ 67.
Exclusion of Evidence
{¶41} In his first assignment of error, Mr. Allen contends that the trial court erred
in excluding evidence of Ms. Allen’s alleged misconduct prior to the parties’ divorce. Mr.
Allen contends that his proffered evidence was admissible as other acts evidence
pursuant to Evid.R. 404(B) and/or as impeachment evidence pursuant to Evid.R.
608(B)(1).
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Other Acts Evidence
{¶42} Evid.R. 404(A) is a general prohibition on using evidence of a person’s
character to prove he or she acted “‘in conformity therewith on a particular occasion.’”
State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 71. Evid.R.
404(B) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.”
{¶43} The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a
question of law. State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651,
¶ 22. A trial court is precluded from admitting improper character evidence under Evid.R.
404(B), but it has discretion to allow other-acts evidence that is admissible for a
permissible purpose. Graham at ¶ 72.
{¶44} The Supreme Court of Ohio has set forth a three-part analysis for
determining the admissibility of other-acts evidence. Id; see State v. Williams, 134 Ohio
St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20. To be admissible, (1) the evidence
must be relevant, Evid.R. 401, (2) the evidence cannot be presented to prove a person’s
character to show conduct in conformity therewith but must instead be presented for a
legitimate other purpose, Evid.R. 404(B), and (3) the probative value of the evidence
cannot be substantially outweighed by the danger of unfair prejudice, Evid.R. 403.
Graham at ¶ 72.
{¶45} Mr. Allen’s proffered evidence fails the first and second parts of the analysis.
In the context of other-acts evidence, the question is whether the evidence was relevant
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to the particular purpose for which it was offered. Graham at ¶ 75. The other-acts
evidence must be probative of a purpose other than the person’s character or propensity
to behave in a certain way. Id. Mr. Allen did not offer the evidence for any of the permitted
purposes under Evid.R. 404(B). Rather, his express purpose was “to relate
circumstances that occurred at the time of the divorce, that * * * give [Mr. Allen] a reason
not to trust his former spouse, and to believe that she would otherwise be deceptive with
him.” Thus, Mr. Allen sought to establish Ms. Allen’s alleged propensity for deceitfulness,
which is precisely the type of evidence that Evid.R. 404(B) prohibits. See Graham at ¶
76. Accordingly, Mr. Allen’s proffered evidence was not admissible as other-acts
evidence pursuant Evid.R. 404(B) as a matter of law.
Impeachment Evidence
{¶46} The decision to admit evidence of earlier misconduct of a witness for
impeachment under Evid.R. 608(B) is within the sound discretion of the trial court. State
v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 100.
{¶47} Evid.R. 404(A)(3) contains an exception to the general prohibition on
character evidence, providing that “[e]vidence of the character of a witness on the issue
of credibility is admissible as provided in Rules 607, 608, and 609.” Evid.R. 608(B)
provides, in relevant part, that “[s]pecific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’s character for truthfulness, other than
conviction of crime as provided in Evid.R. 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if clearly probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the witness (1) concerning the
witness’s character for truthfulness or untruthfulness * * *.”
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{¶48} Mr. Allen’s direct testimony constitutes “extrinsic evidence” of Ms. Allen’s
alleged conduct. Therefore, it was not admissible pursuant to Evid.R. 608(B). See State
v. Workman, 14 Ohio App.3d 385, 391, 471 N.E.2d 853 (8th Dist.1984) (“In no instances
can such testimony be heard upon direct examination”) (Emphasis sic.)
{¶49} We also find no error in the exclusion of Mr. Allen’s proposed cross-
examination of Ms. Allen. Evid.R. 608(B) requires “a high degree of probative value of
instances of prior conduct as to truthfulness or untruthfulness of the witness before the
trial court will allow such cross-examination.” (Emphasis added.) State v. Norwood, 11th
Dist. Lake No. 2000-L-146, 2002 WL 445839, *3 (Mar. 22, 2002); see 1980 Staff Notes
to Evid.R. 608. Ms. Allen disputes the accuracy of her proffered testimony; thus, its
probative value as to her “untruthfulness” is inconclusive.
{¶50} In addition, while “cross-examination of a witness is a matter of right,” the
“‘extent of cross-examination with respect to an appropriate subject of inquiry is within the
sound discretion of the trial court.’” (Emphasis added.) State v. Green, 66 Ohio St.3d
141, 147, 609 N.E.2d 1253 (1993), quoting Alford v. United States, 282 U.S. 687, 691, 51
S.Ct. 218, 75 L.Ed. 624 (1931). Evid.R. 611(A) provides that “[t]he court shall exercise
reasonable control over the mode and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.”
{¶51} Here, the magistrate limited the presentation of evidence to the specific
issues raised in Mr. Allen’s motions rather than permitting the parties to relitigate issues
from their acrimonious divorce. We find that the magistrate’s exercise of control in this
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regard was reasonable. Thus, the trial court did not abuse its discretion in adopting the
magistrate’s evidentiary ruling.
{¶52} Mr. Allen’s first assignment of error is without merit.
Motion for Additional Orders
{¶53} In his second assignment of error, Mr. Allen contends that the trial court
erred in denying his motion for additional orders to enforce the assignment of retirement
benefits.
{¶54} The magistrate found that Mr. Allen “seeks additional orders not included in
the [divorce decree] or the in-court agreement” and that “[t]here is no meeting of the
minds, agreement of the parties, or consideration for the modifications [Mr. Allen] seeks.”
In adopting the magistrate’s decision, the trial court effectively determined that it was
without jurisdiction to grant Mr. Allen’s requested relief. The jurisdiction of the domestic
relations court is an issue of law. See Salvato v. Salvato, 2013-Ohio-5268, 2 N.E.3d 974,
¶ 23 (11th Dist.).
{¶55} Retirement benefits are marital assets that are subject to division as
personal property. Longo v. Longo, 11th Dist. Portage No. 2017-P-0061, 2018-Ohio-
3535, ¶ 21. In order to divide unmatured benefits at the time of divorce, the trial court
issues a QDRO or an equivalent judgment entry. Sullivan v. Sullivan, 6th Dist. Lucas No.
L-09-1022, 2010-Ohio-3064, ¶ 12. The QDRO or entry “permits a division and distribution
of rights to a benefit, the amount of which is as yet undetermined.” (Emphasis sic.) Layne
v. Layne, 83 Ohio App.3d 559, 565, 615 N.E.2d 332 (2d Dist.1992).
{¶56} R.C. 3105.171(I) provides, in relevant part, that “[a] division * * * of property
* * * made under this section is not subject to future modification by the court except upon
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the express written consent or agreement to the modification by both spouses.” Under
the plain language of this statute, consent of both spouses is required before a trial court
may modify a property division. Williams v. Williams, 1st Dist. Hamilton No. C-210331,
2022-Ohio-599, ¶ 14. However, the statutory prohibition has no effect upon the trial
court’s basic authority to interpret and enforce its prior judgment. Longo at ¶ 21.
{¶57} Mr. Allen purported to invoke the trial court’s retention of jurisdiction in the
decree “to enter further orders as are necessary to enforce the assignment of benefits to
the non-participant as set forth herein.” (Emphasis added.) According to Mr. Allen, this
provision permitted the trial court to “take additional action” to “protect” his interest as a
non-participant in the retirement plans. We disagree.
{¶58} When Mr. Allen filed his motion, the retirement benefits remained
unmatured, and there was no post-decree event that negatively affected Mr. Allen’s rights
as a beneficiary. See, e.g., Sullivan, supra, at ¶ 26-27 (the husband received vested
benefits that he had transferred to another account); Bevan v. Bevan, 9th Dist. Lorain No.
06CA008969, 2008-Ohio-724, ¶ 1 (the husband elected to receive a different type of
vested benefits from his pension fund). Rather than enforcement, Mr. Allen sought to
modify the assignment of benefits to include more favorable terms. Without Ms. Allen’s
express written agreement, the trial court lacked jurisdiction to modify the decree in this
manner. Thus, we find no error in the trial court’s jurisdictional determination.
{¶59} Mr. Allen’s second assignment of error is without merit.
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Motion to Show Cause
{¶60} In his third assignment of error, Mr. Allen contends that the trial court erred
in denying his motion to show cause, in which he asked the trial court to hold Ms. Allen in
contempt for violating the divorce decree.
{¶61} Contempt of court has been variously defined as “disobedience of an order
of a court” and “conduct which brings the administration of justice into disrespect, or which
tends to embarrass, impede or obstruct a court in the performance of its functions.”
Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362(1988). “A court may punish disobedience of its order, pursuant to R.C. 2705.02(A) or
the court’s inherent power to enforce its authority.” State ex rel. Adkins v. Sobb, 39 Ohio
St.3d 34, 35, 528 N.E.2d 1247 (1988). “A finding of civil contempt requires clear and
convincing evidence that the alleged contemnor has failed to comply with the court’s prior
orders.” Willoughby v. Masseria, 11th Dist. Geauga No. 2002-G-2437, 2003-Ohio-2368,
¶ 25. A refusal to punish any disobedience is within the sound discretion of the court.
Welty v. Welty, 11th Dist. Ashtabula No. 2007-A-0013 and 2007-A-0015, 2007-Ohio-
5217, ¶ 25.
{¶62} Mr. Allen first contends that the trial court should have held Ms. Allen in
contempt for violating the provision in the decree requiring her to provide her “end of year
earnings statement(s) and Federal and State Tax Returns.”
{¶63} Although the parties disputed the meaning of this provision, Mr. Allen
testified, and the magistrate found, that Ms. Allen provided all requested documentation
prior to Mr. Allen filing his motion to show cause. Mr. Allen does not challenge this finding
on appeal. In fact, he concedes Ms. Allen was “perhaps not deserving of a contempt
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finding on the issue of her year-end paystubs alone” but objects to her “cavalier attitude.”
A party can only be held in contempt of court for failing to comply with the language the
court employed in the four corners of an applicable court order. Miller v. Miller, 11th Dist.
Trumbull No. 2019-T-0048, 2020-Ohio-6914, ¶ 38. Thus, there is no basis for reversal.
{¶64} Mr. Allen next contends that the trial court should have held Ms. Allen in
contempt for failing to pay spousal support from the funds she received from the Financial
Planning Reimbursement Program. According to Mr. Allen, Ms. Allen violated the
decree’s provisions requiring her to pay, upon receipt, 45% of her “gross income from
incentives, bonuses, enrichment income plans, and other income above and beyond her
base pay earned after January 1, 2018” and 50% of her “gross income from incentives,
bonuses, enrichment income plans, and other earned income above and beyond her base
pay earned prior to January 1, 2018 and payable in 2018 through 2020.” Mr. Allen
contends that the reimbursement payments constituted “gross income” for purposes of
these provisions.
{¶65} A divorce decree, like other contracts, can only be interpreted if the
provisions are ambiguous or uncertain. See Salvato, supra, at ¶ 39. In construing a
divorce decree, a court must give common words their ordinary meaning unless some
other meaning is clearly suggested from the face of the decree or its overall contents.
Caldwell v. Caldwell, 4th Dist. Gallia No. 02CA17, 2003-Ohio-1752, ¶ 12. Language is
ambiguous if it is susceptible to two or more conflicting, yet reasonable, interpretations.
See Salvato at ¶ 39. The determination of whether language is ambiguous is an issue of
law. See id. If the language is capable of two reasonable but conflicting interpretations,
however, there is an issue of fact as to the parties’ intent. Id. at ¶ 40. The court must
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examine parol or extrinsic evidence to determine the parties’ intent, including the
circumstances surrounding the parties at the time the contract was made and the
objectives the parties intended to accomplish by entering into the contract. Id.
{¶66} As indicated, Ms. Allen agree to pay to Mr. Allen, upon receipt, (1) 45% of
her “gross income from incentives, bonuses, enrichment income plans, and other income
above and beyond her base pay earned after January 1, 2018,” and (2) 50% of her “gross
income from incentives, bonuses, enrichment income plans, and other earned income
above and beyond her base pay earned prior to January 1, 2018 and payable in 2018
through 2020.” (Emphasis added.) We find no ambiguity in the foregoing language.
Contrary to Mr. Allen’s assertion, Ms. Allen agreed to pay a percentage of her earned
gross income beyond her base pay, not just her gross income. Such earned gross income
included income from incentives, bonuses, and enrichment income plans.
{¶67} The Internal Revenue Code defines “gross income” as “all income from
whatever source derived.” 26 U.S.C. 61(a). In this context, however, the term “gross”
means “consisting of an overall total exclusive of deductions.” Merriam-Webster,
https://www.merriam-webster.com/dictionary/gross (accessed August 26, 2022); see
Black’s Law Dictionary, gross (11th Ed.2019) (defining “gross” as “[u]ndiminished by
deduction; entire”).
{¶68} The Internal Revenue Code defines “earned income” in various ways,
depending on the taxation context in which it is used. Czubaj v. Tallmade, 9th Dist.
Summit No. 21389, 2003-Ohio-5466, ¶ 22; see, e.g., 26 U.S.C. 32(c)(2)(A) (earned
income tax credit); 26 U.S.C. 911(b)(1)(A) (foreign earned income). Black’s Law
Dictionary defines “earned income” as “money derived from one’s own labor or active
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participation; earnings from services.” (Emphasis added.) Black’s Law Dictionary,
income (11th Ed.2019). Similarly, the dictionary definition of “earned income” is “income
(as wages, salary, professional fees, or commissions) that results from the personal labor
or services of an individual.” (Emphasis added.) Merriam-Webster, https://www.merriam-
webster.com/legal/earned%20income (accessed August 26, 2022). The Ninth District
Court of Appeals has defined “earned income” in the context of an income tax ordinance
as requiring “some form of service that results from an affirmative act.” (Emphasis
added.) Czubaj at ¶ 22; see also Campbell v. Plusquellic, 9th Dist. Summit No. 14936,
1991 WL 76863, *2 (May 8, 1991) (“earned” means “to gain, get, obtain, or acquire as the
reward of labor or performance of some service”).
{¶69} Here, the reimbursement payments to Ms. Allen certainly qualified as “gross
income” subject to taxation; however, the payments did not constitute earned gross
income because they did not derive from Ms. Allen’s labor or services to her employer.
Rather, payments from this program are more accurately characterized as a “fringe
benefit,” i.e., a “benefit (other than direct salary or compensation) received by an
employee from an employer, such as insurance, a company car, or a tuition allowance.”
Black’s Law Dictionary, benefit (11th Ed.2019); see Merriam-Webster,
https://www.merriam-webster.com/dictionary/fringe%20benefit (accessed August 26,
2022) (defining “fringe benefit” as “an employment benefit (such as a pension or a paid
holiday) granted by an employer that has a monetary value but does not affect basic wage
rates”).
{¶70} Alternatively, the reimbursement payments may be characterized as a
“perquisite,” i.e., a “privilege or benefit given in addition to one’s salary or regular wages.”
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Black’s Law Dictionary, perquisite (11th Ed.2019); see Merriam-Webster,
https://www.merriam-webster.com/dictionary/perquisite (accessed August 26, 2022)
(defining “perquisite” as “a privilege, gain, or profit incidental to regular salary or wages”).
{¶71} The dissent argues that based on “any possible interpretation,” the
reimbursement payments constituted “gross income” from a “bonus.” Notably, the
dissent’s construction is based, in part, on its review of the evidentiary record. Such
considerations are only appropriate if language is ambiguous, i.e., “capable of two
reasonable but conflicting interpretations.” Salvato, supra, at ¶ 40. The dissent does not
contend that the language is ambiguous.
{¶72} The fatal flaw in the dissent’s construction is its failure to give any effect to
the decree’s multiple uses of the term “earned.” Rather, the dissent incorrectly separates
the language into two categories, i.e., (1) gross income from incentives, bonuses, and
enrichment income plans; and (2) other income above and beyond Ms. Allen’s base pay
earned prior to or after January 1, 2018.
{¶73} Proper contract interpretation includes the application of ordinary rules of
grammar. Oliveri v. OsteoStrong, 2021-Ohio-1694, 171 N.E.3d 386, ¶ 21 (11th Dist.).
Here, the decree uses the term “other,” which signifies the existence of prior examples.
Thus, the phrases “earned after January 1, 2018” and “earned prior to January 1, 2018
and payable in 2018 through 2020” modify the phrases “other income above and beyond
[Ms. Allen’s] base pay” and “gross income from incentives, bonuses, [and] enrichment
income plans.” In other words, the provisions apply to Ms. Allen’s earned gross income
above and beyond her base pay earned after January 1, 2018, or earned prior to that
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date if payable during 2018 through 2020, including earned gross income from incentives,
bonuses, and enrichment income plans.
{¶74} Contrary to the dissent’s assertion, our construction does not mean that only
base pay would constitute earned gross income. The provision itself provides examples
of such earned gross income, i.e., from “incentives,” “bonuses,” and “enrichment income
plans.” In fact, the definition of “bonus” quoted by the dissent demonstrates that a “bonus”
derives from an employee’s performance of “services.” See Black’s Law Dictionary,
bonus (11th Ed.2019) (“In the employment context, workers’ bonuses * * * are paid for
services or on consideration in addition to or in excess of the compensation that would
ordinarily be given. — Also termed bonus payment”) (Emphasis added.) Similarly, an
“incentive-pay plan” is defined as “a compensation plan in which increased productivity is
rewarded with higher pay.” (Emphasis added.) Black’s Law Dictionary, incentive-pay
plan (11th Ed.2019). Obviously, all employee compensation derives from the fact that
the individual is employed; however, not all employee compensation is earned, i.e.,
income derived from the employee’s performance of labor or services.
{¶75} Accordingly, based on the plain and ordinary meaning of the decree’s
language, Ms. Allen’s spousal support obligation did not encompass the reimbursement
payments.
{¶76} The magistrate found that the reimbursement program was not addressed
in the parties’ divorce negotiations or in-court agreement and that Mr. Allen testified that
he had knowledge of the program, could have included it in the in-court agreement, or
could have filed a motion for relief from judgment. The magistrate also found that the
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reimbursement program “is not a bonus program, nor is it subject to taxes” and that Mr.
Allen’s demand for a portion constitutes “double dipping.”
{¶77} It is unclear whether the magistrate found the decree to be ambiguous or
unambiguous. In addition, the magistrate’s finding that the reimbursement payments
were not subject to taxes is inconsistent with the evidence presented. However, the
magistrate’s ultimate conclusion is correct based on the decree’s unambiguous language.
Thus, there is no basis for reversal.
{¶78} Mr. Allen next contends that the trial court should have held Ms. Allen in
contempt for failing to pay his share of a 2017 bonus until two and half years after she
received the funds. However, the hearing transcript reflects counsel twice stipulated that
the 2017 bonus was not subject to Mr. Allen’s motion to show cause. Thus, Mr. Allen has
waived this argument.
{¶79} Mr. Allen’s third assignment of error is without merit.
Motion for Attorney Fees
{¶80} In his fourth assignment of error, Mr. Allen contends that the trial court erred
in denying his motion for attorney fees because he “clearly proved” Ms. Allen’s
“contemptuous conduct” at the hearing. Since we find no error in the trial court’s decision
not to hold Ms. Allen in contempt, Mr. Allen’s argument necessarily lacks merit. See
Miller, supra, at ¶ 43.
{¶81} Mr. Allen’s fourth assignment of error is without merit.
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Motion to Rescind
{¶82} Finally, in his fifth assignment of error, Mr. Allen contends that the trial court
erred in denying his motion to rescind Ms. Allen’s permission to make direct payments of
spousal support.
{¶83} “[W]hen a court pursuant to section 3105.18 * * * issues * * * an order
requiring an obligor to pay spousal support * * *, the court may permit the obligor to make
the spousal support payments directly to the obligee instead of to the office [of child
support in the department of job and family services] * * *.” R.C. 3121.441(A). “If a court
permits an obligor to make spousal support payments directly to an obligee pursuant to
division (A) of this section and the obligor is in default in making any spousal support
payment to the obligee, the court, upon motion of the obligee or on its own motion, may
rescind the permission granted under that division.” (Emphasis added.) R.C.
3121.441(C).
{¶84} Since the governing statute uses the term “may,” the trial court had
discretion to grant or deny Mr. Allen’s motion. See Ohio Civ. Serv. Emps. Assn. v. Univ.
of Cincinnati, 3 Ohio App.3d 302, 304, 444 N.E.2d 1353 (1st Dist.1982) (“[G]enerally ‘may’
is a permissive term and its use in a statute imparts discretion to the party or parties
whose conduct is governed by a statute containing it”).
{¶85} The magistrate acknowledged Ms. Allen’s untimely payments but found that
the facts and circumstances did not warrant CSEA’s involvement.
{¶86} On appeal, Mr. Allen challenges the credibility of Ms. Allen’s testimony.
However, “[t]he choice between credible witnesses and their conflicting testimony rests
solely with the finder of fact[,] and an appellate court may not substitute its own judgment
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for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277(1986). The factfinder is free to believe all, part, or none of the testimony of each witness
appearing before it. Welty, supra, at ¶ 32. In addition, Ms. Allen’s testimony was
supported by documentary evidence submitted at the hearing. Accordingly, we find no
basis for reversal.
{¶87} Mr. Allen’s fifth assignment of error is without merit.
{¶88} In sum, we conclude that the trial court did not abuse its discretion in
adopting the magistrate’s decision.
{¶89} For the foregoing reasons, the judgment of the Geauga County Court of
Common Pleas, Domestic Relations Division, is affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
MATT LYNCH, J., concurs in part and dissents in part, with a Dissenting Opinion.
____________________
MATT LYNCH, J., concurs in part and dissents in part, with a Dissenting Opinion.
{¶90} I concur with the majority’s disposition of the first, second, and fourth
assignments of error. I dissent from the majority’s holding in the third assignment of error
that the appellee’s reimbursement program funds were not subject to the spousal support
provision. The parties’ divorce decree required that a percentage of appellee’s gross
income, including bonuses and other incentives, be paid to appellant and under any
possible interpretation of the wording of that provision, the reimbursement funds are part
of that gross income.
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{¶91} Pursuant to the decree, appellee was ordered to pay 45% of her “monthly
gross base salary” and 45% “of her gross income from incentives, bonuses, enrichment
income plans, and other income above and beyond her base pay earned after January 1,
2018.” She was further ordered to pay 50% of her “gross income from incentives,
bonuses, enrichment income plans and other earned income above and beyond her base
pay earned prior to January 1, 2018.” Gross income as defined under federal law includes
income from “whatever source derived” including “[c]ompensation for services” as well as
“fringe benefits.” 26 U.S.C. 61(a)(1). The reimbursement funds fall under this definition.
In addition, the documentation relating to the reimbursement program states that it is
“considered taxable income by the IRS and will be included on the employee’s W2 form.”
“A Form W-2 includes ‘[w]ages, tips, and other compensation’ an employee is actually
paid.” Mathews v. ALC Partner, Inc., E.D. Mich. No. 08-cv-10636, 2009 WL 3837249, *5
(Nov. 16, 2009). Pursuant to the foregoing, the reimbursement program falls under the
clear definition of gross income as applied by the IRS and was treated as pay or
compensation, which is unquestionably gross income.
{¶92} The majority concludes, however, that the terms of the spousal support
provisions do not include “gross income” but only “earned gross income” since they
reference income “beyond her base pay earned after January 1, 2018” as well as “earned
income above and beyond her base pay earned prior to” that date. It concludes that the
reimbursement plan was not part of appellee’s “gross earned income” since it is a fringe
benefit. This conclusion oversimplifies the issue and fails to take into account the entirety
of the applicable provisions in the divorce decree, including their reference to “gross
income” such as bonuses and incentives.
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{¶93} The majority declines to address whether the plan is a “bonus” or
“incentive,” which are specifically delineated as types of gross income requiring payment
of spousal support. Here, the reimbursement was a benefit provided to certain executives
who were nominated for such benefit. In appellee’s testimony in the trial court, when
asked about receiving compensation under this nomination scheme, she stated that it
was “bonus compensation.” A “bonus” is defined as: “A premium paid in addition to what
is due or expected. In the employment context, workers’ bonuses are not a gift or gratuity;
they are paid for services or on consideration in addition to or in excess of the
compensation that would ordinarily be given.” Black’s Law Dictionary 144 (7th Ed.2000).
The record indicates that the reimbursement plan was given to “select” individuals within
the company and appellee was among those elected to receive such funds. Thus, this
would not be characterized as compensation ordinarily given to employees nor had she
received it throughout her entire employment. It is also noteworthy that the plan, as stated
in 2019 documents, is referred to as the “LTIP Financial Planning Reimbursement
Program.” LTIP, or long term incentive programs, are, by their own name, “incentives”
provided to employees. See Avakian v. Avakian, 11th Dist. Portage No. 2014-P-0036,
2015-Ohio-2299, ¶ 48 (an LTIP incentive plan which is part of a “compensation plan” falls
within the definition of a bonus and is something given in addition to what would ordinarily
be due or expected). Just like a bonus, an incentive is specifically set forth as one of the
items of which appellant is to receive a portion. An “earned gross income” analysis is
inapplicable when the provision specifically sets forth that this type of benefit is subject to
the spousal support award. If a bonus or incentive is determined by the majority to be
outside of the scope of support because it is not “earned gross income,” it is difficult to
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envision what, aside from base pay, could be eligible as income, rendering much of the
wording of the spousal support provision meaningless. While the majority argues that
these are subject to an earned gross income analysis because the word “earned” modifies
all income apart from her base pay, under this interpretation, there would be no reason
to list incentives and bonuses separately if they were to be treated the same as all other
income.
{¶94} It should also be emphasized that the reimbursement was treated as the
equivalent of salary, such that the outcome of being subject to spousal support is both
logical and consistent with the terms of the support provision. As noted above, it was
considered taxable income and included on appellee’s W-2. Pursuant to 2020
documentation, appellee was provided with up to $4,000 for services which would have
otherwise come out of her base pay/salary such as tax preparation and legal financial
services. In other words, it provided her with additional funds to pay expenses just as
would an increased salary, which would be subject to the spousal support requirement.
See Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, ¶ 15 (“If his
employer did not provide a car, Morrow would have had to purchase or lease one on his
own, using his own funds. Accordingly, it is sensible to conclude that the provision of a
car is no different from the provision of funds to buy or lease a car. Either way, the person
receiving the benefit effectively has a higher income.”). Neither the wording of the
provisions included in the divorce decree nor a reasonable application to the
circumstances of the parties compel the conclusion reached by the majority, since a
benefit that increases one’s overall earnings and income by decreasing her expenses for
the year should logically be part of the income subject to a support obligation.
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{¶95} Finally, even if it were proper to consider only whether the reimbursement
in dispute is “earned gross income” as defined by the majority, the funds would be subject
to the support order. The award of the reimbursement was based on appellee’s
performance in her job, which led to her election to receive such a benefit. It resulted
from her services provided to the company and presumably the level of her job
performance. It is unlike the examples provided by the majority, such as insurance or a
company car that may be given to any employee as part of the benefits of the position
unrelated to their job performance or service to the company.
{¶96} In sum, under any interpretation of the plain terms of the spousal support
provisions, the reimbursement program is subject to the support award. To hold
otherwise is contrary to the divorce decree. For these reasons, I dissent as to the third
assignment of error and would reverse the lower court’s ruling on this issue.
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