Mayer v. Mayer

[Cite as Mayer v. Mayer, 2022-Ohio-533.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jessica L. Mayer, :
Plaintiff-Appellee, : No. 21AP-3
(C.P.C. No. 18DR-1343)
v. :
(REGULAR CALENDAR)
Matt A. Mayer, :
Defendant-Appellant. :
D E C I S I O N
Rendered on February 24, 2022
On brief: Friedman & Mirman Co., L.P.A., Denise Mirman
and Robert A. Letson., for appellee. Argued: Denise M.
Mirman
On brief: Grossman Law Offices, John H. Cousins IV, and
Anthony R. Auten, for appellant. Argued: John H. Cousins
APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relations and Juvenile Branch
JAMISON, J.
{¶ 1} Defendant-appellant, Matt A. Mayer, appeals from a December 2, 2020,
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
terminating his marriage to plaintiff-appellee, Jessica L. Mayer, dividing marital property,
and ordering child and spousal support. For the reasons that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties met when they were working as attorneys at different branches of
the same law firm, one in Denver and the other in Salt Lake City. The parties were married
on May 31, 2000, in Denver, Denver County, Colorado. Three children were born as issue
of the marriage: M.M., born December 11, 2001 (now emancipated), G.M., born June 17,
2004, and S.M., born August 11, 2010.
No. 21AP-3 2
{¶ 3} The couple moved to Washington, D.C. when appellant accepted a legal
position with Homeland Security. The evidence shows that appellant's work schedule
became very heavy after the move to D.C. Appellee admitted that she had a romantic
relationship with a co-worker during this time period. When appellant discovered the
relationship, the parties agreed to quit their current jobs and move to Ohio in an effort to
save their marriage.
{¶ 4} In 2006, the parties moved from Washington D.C. to central Ohio. After the
move to Ohio, appellant started his own consulting firm, Provisum Strategies LLC, and he
became a leader of various conservative think tanks including the Buckeye Institute and
Opportunity Ohio. He also earned income from fellowships at other conservative think
tanks. From 2010 to 2017, appellant earned between $152,000 and $236,000 per year.
{¶ 5} Appellee took a job with Cardinal Health and she quickly became one of their
top lawyers. The evidence shows that marital difficulties arose due to appellee's increasing
workload following her promotion to Co-Deputy Legal Counsel in January 2016. In an
email to appellee, dated January 29, 2016, appellant proposed several options for saving
the marriage, many of which involved appellee leaving her current position with Cardinal
Health.
{¶ 6} The parties eventually separated in the summer of 2017, but they reconciled
after a few months. However, in October 2017 the parties separated again and did not
reconcile. Appellee filed her complaint for divorce on April 5, 2018. Appellant filed his
answer and counterclaim for divorce on April 30, 2018. In March 2019, appellee became
the Chief Legal and Compliance Officer for Cardinal Health, resulting in a significant
increase in her compensation.
{¶ 7} During the course of this litigation, appellant remained in the marital home
with the children. Appellee eventually purchased a home in the same neighborhood, and
G.M. moved in with appellee.
{¶ 8} Prior to trial, the parties stipulated a marital duration of May 31, 2000, to
December 31, 2018, and "both parties are entitled to a divorce from the other on the
grounds of incompatibility." (Aug. 18, 2020 Trial Stipulations & Agreed Entry at 2.) On
August 31, 2020, the case proceeded to a bench trial. The crux of the dispute was the
calculation and treatment of appellee's income for purposes of child support and spousal
No. 21AP-3 3
support. The evidence at trial showed appellee's annual income included a base salary, a
cash bonus, and a variety of stock bonuses. Her base pay in 2020 was $575,000 per year,
paid on a bi-weekly basis. Appellee also received an annual cash bonus as part of Cardinal
Health's Management Incentive Plan ("MIP"), paid in August. In 2020, appellee's cash
bonus was $559,061. As of the trial date, appellant was earning $125,000 performing data
analysis and authoring public policy statements for Opportunity Ohio, a Columbus-based
think tank.
{¶ 9} The treatment of appellee's qualified Cardinal Health shares was the primary
bone of contention at trial. Appellee's stock-based compensation was paid to her pursuant
to Cardinal Health's Long-Term Incentive Plan ("LTIP"). The LTIP bonus includes
Performance Share Units ("PSUs"), which made up 60 percent of the bonus, and Restricted
Share Units ("RSUs"), which made up 40 percent of her bonus. Cardinal Health's 2019
Proxy Statement explains that the RSUs and PSUs are valued by multiplying the closing
price of Cardinal Health's common stock on the grant date by the number of RSUs and
PSUs awarded. Appellee receives her yearly LTIP stock bonus in August.1
{¶ 10} The evidence at trial further established that RSUs shares vest at a rate of
one-third each year following the award and that PSUs are subject to "cliff-vesting,"
meaning that no portion of the shares vest until three years have passed. (Sept. 1, 2020 Tr.
Vol. 2 at 414.) At the close of the three-year period, Cardinal Health's compensation
committee makes a determination based on company performance whether all or any of
PSUs shares will be funded.
{¶ 11} In the parties' August 18, 2020 stipulation, the parties agreed that "[t]he issue
of spousal support, child support and child-related expenses shall be submitted to the Court
at the August 31, 2020 trial." (Trial Stipulations & Agreed Entry at 3.) All matters regarding
the parties' minor children, excluding child support and child related expenses, were
1 The trial court noted that appellee also received certain non-qualified stock options as a result of her
employment with Cardinal Health. The trial court treated these options as marital property and divided the
shares as follows: "One-half of each grant shall be held in constructive trust by Jessica for Matt's potential
benefit. These options are set forth on Plaintiffs trial Exhibit 1-A. The options are those granted up to and
including August 31, 2017. No stock options were granted to Jessica after that date." (Dec. 2, 2020 Jgmt.
Entry/Decree of Divorce at 22.) The distribution of the non-qualified stock options is not an issue in this
appeal.
No. 21AP-3 4
resolved pursuant to the Joint Shared Parenting Plan and Shared Parenting Decree, filed
with the trial court.
{¶ 12} On December 2, 2020, following a four-day bench trial, the trial court issued
a Judgment Entry/Decree of Divorce, wherein the trial court granted a divorce to the
parties on the complaint and counterclaim. The trial court ordered appellee to pay child
support to appellant in the amount of $3,136.05 per month and spousal support in the
amount of $4,166.66 per month. The trial court excluded appellee's yearly cash bonus and
LTIP bonus from appellee's gross income, for purposes of calculating child support, and
excluded appellee's LTIP bonus from appellee's gross income for purposes of calculating
spousal support. The trial court also awarded appellee a 4o percent share of the proceeds
of any book that appellant "is writing or plans to write" about the divorce. (Jgmt.
Entry/Decree of Divorce at 31.)
{¶ 13} Appellant timely appealed to this court from the December 2, 2020
judgment.
II. ASSIGNMENTS OF ERROR
{¶ 14} Appellant assigns the following as trial court error:
[1.] The trial court erred and abused its discretion by
refusing to include appellee's annual bonus and stock-
based compensation in its calculation of appellee's
gross income for purposes of child support.
[2.] The trial court erred and abused its discretion in
calculating appellee's income for purposes of spousal
support and in determining the amount and duration
of spousal support.
[3.] The trial court erred and abused its discretion by
granting Jessica a lifetime award of 40% of any
income appellant might receive from any book that
appellant "is writing or plans to write" about the
divorce.
III. STANDARD OF REVIEW
{¶ 15} "A domestic relations court has broad discretion in a divorce proceeding to
determine child support, spousal support, and divisions of marital property."
Habtemariam v. Worku, 10th Dist. No. 19AP-47, 2020-Ohio-3044, ¶ 18, citing Booth v.
No. 21AP-3 5
Booth, 44 Ohio St.3d 142 (1989), and Turner v. Turner, 90 Ohio App.3d 161, 164 (10th
Dist.1993.) Accordingly, the abuse of discretion standard is appropriate for appellate
review of matters concerning child support. Poling v. Poling, 10th Dist. No. 13AP-189,
2013-Ohio-5141, ¶ 5, citing Booth. "The same standard applies when we review a trial
court's award of spousal support." Poling at ¶ 5, citing Falk v. Falk, 10th Dist. No. 08AP-
843, 2009-Ohio-4973, ¶ 1.
{¶ 16} The term " 'abuse of discretion' * * * implies that the court's attitude is
unreasonable, arbitrary or unconscionable." Falk at ¶ 11, quoting Blakemore v. Blakemore,
5 Ohio St.3d 217 (1983). "When applying this standard of review, an appellate court may
not merely substitute its judgment for that of the trial court." Havens v. Havens, 10th Dist.
No. 11AP-708, 2012-Ohio-2867, ¶ 6, citing Holcomb v. Holcomb, 44 Ohio St.3d 128 (1989).
A reviewing court should not independently reweigh the evidence. Lopez-Ruiz v. Botta,
10th Dist. No. 11AP-577, 2012-Ohio-718, ¶ 13, citing Miller v. Miller, 37 Ohio St.3d 71(1988).
IV. LEGAL ANALYSIS
A. Appellant's Second Assignment of Error
{¶ 17} To facilitate the discussion, we will begin with appellant's second assignment
of error. In appellant's second assignment of error, appellant contends that the trial court
abused its discretion by failing to include all of appellee's gross income when calculating
spousal support. More particularly, appellant argues that the trial court should have
included appellee's LTIP bonus compensation in her gross income for purposes of spousal
support. We agree.
{¶ 18} R.C. 3105.18, which governs the award of spousal support in divorce
proceedings, provides in relevant part as follows:
(B) In divorce * * *, upon the request of either party and after
the court determines the division or disbursement of
property under section 3105.171 of the Revised Code, the
court of common pleas may award reasonable spousal support
to either party. During the pendency of any divorce, or legal
separation proceeding, the court may award reasonable
temporary spousal support to either party.
An award of spousal support may be allowed in real or
personal property, or both, or by decreeing a sum of money,
No. 21AP-3 6
payable either in gross or by installments, from future income
or otherwise, as the court considers equitable.
(Emphasis added.)
{¶ 19} R.C. 3105.18(C) requires the trial court to consider certain factors "[i]n
determining whether spousal support is appropriate and reasonable, and in
determining the nature, amount, and terms of payment, and duration of spousal support."
R.C. 3105.18(C)(1). Those factors include:
(a) The income of the parties, from all sources, including, but
not limited to, income derived from property divided,
disbursed, or distributed under section 3105.171 of the
Revised Code;
(b) The relative earning abilities of the parties;
***
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party,
because that party will be custodian of a minor child of the
marriage, to seek employment outside the home;
(g) The standard of living of the parties established during
the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including
but not limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training,
or earning ability of the other party, including, but not limited
to, any party's contribution to the acquisition of a professional
degree of the other party;
(k) The time and expense necessary for the spouse who is
seeking spousal support to acquire education, training, or job
experience so that the spouse will be qualified to obtain
appropriate employment, provided the education, training, or
job experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of
spousal support;
(m) The lost income production capacity of either party that
resulted from that party's marital responsibilities;
(n) Any other factor that the court expressly finds to be
relevant and equitable.
No. 21AP-3 7
(2) In determining whether spousal support is reasonable
and in determining the amount and terms of payment of
spousal support, each party shall be considered to have
contributed equally to the production of marital income.
(Emphasis added.)
{¶ 20} " 'A trial court need not itemize and comment upon each factor;
however, there must [be] a clear indication in the court's decision that the factors were
considered.' " Misra v. Mishra, 10th Dist. No. 17AP-306, 2018-Ohio-5139, ¶ 51, quoting
Hightower v. Hightower, 10th Dist. No. 02AP-37, 2002-Ohio-5488, ¶ 24.
{¶ 21} Prior to trial, the parties' filed a written stipulation wherein the parties agreed
that both Brian Russell, appellant's expert witness, and Rebekah Smith, appellee's expert
witness, were qualified as experts in the field of forensic accounting. Each of these
witnesses offered opinion testimony regarding the proper treatment and value of appellee's
LTIP bonus for purposes of child and spousal support.
{¶ 22} On direct examination, appellee's expert witness Rebekah Smith succinctly
set forth appellee's position with respect to the treatment of appellee's LTIP bonus:
Q. * * * What assumptions did you make when you were doing
this analysis of Jessica's long-term incentives?
A. Yes. Fundamentally, there is a legal assumption
undermining my analysis, which is my understanding it is
[wife's] position that the long-term incentives should be
treated as property and not as income; and, therefore, the
awards that are vesting after the December 31, 2018, or were
awarded after December 31 of 2018, would not be considered
as marital property.
(Sept. 1, 2020 Tr. Vol. 2 at 416.)
{¶ 23} Concerning the question whether appellee's LTIP bonus should be treated as
marital property or as income to appellee, Russell set forth appellant's position on cross-
examination as follows:
Q. And isn't it true that it's not just a W-2 that we look at when
we determine whether something is income?
A. That's correct. It's not just a W-2.
Q. And you have argued cases in the past treating -- that RSUs
or PSUs should be treated as income or RSUs or PSUs should
be treated as property, correct?
No. 21AP-3 8
A. Yes, in both. It's been handled both ways in many cases over
the years.
Q. Okay. But doesn't Matt Mayer in this case want to have his
cake and eat it too in the sense that he wants to count a bunch
of RSUs and PSUs as property and then he wants to treat the
other ones later on as income, correct?
A. * * * [M]y position and my calculations and understanding
are that any RSUs or PSUs that are treated as property and
being divided should not be counted as income and would
have to be reconciled and backed out of any income
calculations in future years. I haven't personally made or
heard an argument that we want the same shares treated as
both property and income.
Q. Okay. I think I have two questions now. But you will agree
with me that he wants to characterize them as property up to
a certain point of time and then he wants to characterize them
as income, correct?
A. I would agree.
Q. And you would also agree with me, however, that we
absolutely should not take any grant and treat part of it as
property and part of that exact same grant as income, correct?
A. That's correct.
(Tr. Vol. 2 at 854-55.)
{¶ 24} Smith contrasted appellee's position with the position taken by appellant as
follows:
Q. Okay. And what is it that you believe the position is
[Russell's] been asked to take?
A. So it's my understanding that Mr. Russell has been asked
to take the position that any of the awards that either vest after
12/31/18 or were awarded after 12/31/18 should then be
treated as income.
Q. And is that different than the position that you are taking?
A. Yes. My position, based on your legal premise, is that the
RSUs and PSUs are property, and then we have divided them
according to the coverture fraction that are not being included
as income.
(Tr. Vol. 2 at 473.)
No. 21AP-3 9
{¶ 25} The trial court considered the question whether appellee's LTIP's were
property or income for purposes of spousal support, and made the following ruling:
"Annual Total Direct" compensation summary from February
2019 notes a value of $2,471,250, which is comprised of the
following components: base salary ($525,000); Bonus Target
of 85% of her salary, known as a short term market incentive
plan (MIP) of ($446,250); and annual equity awards, known
as long term incentives (LTIs) ($1,500,000). See Joint Exhibit
19B. In June 2020, Jessica received a raise based on increased
responsibilities, her salary was increased to $575,000 and her
bonus target increased to 90% of her income.
Jessica testified that in order for the MIP to be funded, the
corporation has to meet and exceed its goals and the
individual employee must also excel. Thus, she asserted her
cash bonus is not guaranteed and Cardinal has in the past
funded the bonus program at less than 100% of target.
Cardinal exceeded its performance goals in 2020, the entire
bonus pool was funded at 120%, and in August 2020, she
received a cash bonus of $559,061. See Joint Exhibit 19D.
The court finds Jessica's income to be $1,134,061 including
her annual salary of $575,000 plus her bonus of $559,061.
The LTI's are not being considered as income by the Court.
(Emphasis added.) (Dec. 2, 2020 Jgmt. Entry/Decree of Divorce at 32-33.)2
{¶ 26} The trial court expressly excluded appellee's annual LTIP bonus from
appellee's gross income for purposes of calculating her spousal support obligation. The trial
court found that appellee's future LTIP bonuses were appellee's separate property, not
income. The trial court provided the following rationale for this determination:
The Court finds the LTIs are property, in accordance with the
majority of Ohio cases. See Anderson v. Anderson, 12th Dist.
Warren App. No. CA 2019-10-118, 2020-Ohio-4415 (RSUs
were divided between the parties as property division because
they were granted for his performance and service during the
marriage); Chapman v. Chapman, 6th Dist. Lucas App. No.
L-10-1293, 2012-Ohio-126 (using a time rule, similar to a
coverture fraction); Cwik v. Cwik, 1st Dist. Hamilton App. No.
C-090843, 2011-Ohio-463 (finding it was appropriate to
exclude the RSUs as income in a child support calculation
when the court had already divided the RSUs as property);
Heine v. Heine, Hamilton C.P. No., DR-2002-0342, 2003-
Ohio-7365, ¶28 (stock granted for past and present services
2 The trial court referred to appellee's cash bonus as "MIP," and her stock bonus as "LTI."
No. 21AP-3 10
are deemed marital property subject to division). Further, in
New York, RSUs are treated as property division, and a
coverture fraction is applied. S.H. v. E.S., 52 Misc.3d 1219(A),
N.Y.S. (Westchester Co., N.Y.) citing DeJesus v. DeJesus, 90
N.Y.2d 643, 665 N.Y.S.2d 36, 687 N.E.2d 1319 (1997).
(Jgmt. Entry/Decree of Divorce at 19-20.)
{¶ 27} At the outset of our discussion, we note that appellant does not challenge the
trial court's determination that any LTIP bonus shares that vested prior to the end of the
marriage are marital property. Nor does appellant challenge the trial court's determination
that he is to receive, in the property division, a coverture fraction of any LTIP shares that
were awarded prior to the end of the marriage but vested thereafter. The trial court's
conclusion that PSUs and RSUs awarded to appellee after December 31, 2018, are not
marital property is supported by Smith's expert testimony and the relevant Cardinal Health
records. Smith opined that appellee's bonus LTIP's are awarded prospectively rather than
retrospectively.
{¶ 28} Nevertheless, we find that the trial court abused its discretion by failing to
consider appellee's post-marital LTIP bonuses as income to appellee for purposes of
calculating appellee's spousal support obligation. In our view, appellee's post-marital LTIP
shares are simply a bonus, which should be considered in the calculation of her spousal
support obligations. 3
{¶ 29} In Ghanayem v. Ghanayem, 12th Dist. No. CA2018-12-138, 2020-Ohio-423,
the trial court included Husband's cash bonus and LTIP bonus as part of his gross income
for purposes of both child and spousal support. On appeal, Husband argued the trial court
erred by including his LTIP bonus in the calculation of his spousal and child support
obligations. More particularly, Husband argued that his LTIP account is a "retirement"
account that should be excluded from the calculation of child and spousal support.
Husband also raised an alternative argument that, if the LTIP benefits are income for
purposes of determining support, then the trial court erred by failing to order a more
specific methodology or calculation so that Wife could assume her share of the tax
consequences.
3There is no dispute that appellee's LTIP bonus shares are treated as income by the Internal Revenue Service
as the shares vest.
No. 21AP-3 11
{¶ 30} The court of appeals rejected appellant's argument and affirmed the trial
court. The decision reads in relevant part as follows:
Contrary to Husband's argument otherwise, the LTIP bonus
is simply a bonus, which can appropriately be considered in
the calculation of his support obligations. See Ornelas, 2012-
Ohio-4106 at ¶ 46, 978 N.E. 2d 946 (percentage of bonus
allowable in spousal support calculation); former R.C.
3119.01(C)(7) (bonus included in "gross income" in child
support calculation). As a result, we decline to adopt
Husband's characterization of the LTIP account as a
"retirement" account that should be excluded from the
support orders."
Id at ¶ 22.4
{¶ 31} We agree with the Ghanayem court that compensation in the form of LTIP
shares is simply a bonus that must be included in a payee spouse's gross income for
purposes of calculating spousal support. We further find that many of the cases cited by
the trial court and appellee stand for the proposition that LTIP's granted to the payee
spouse during the marriage are marital property, whether the shares are vested or
unvested, but that shares granted after the marriage of not marital property. See Chapman
v. Chapman, 6th Dist. No. L-10-1293, 2012-Ohio-126 and Anderson v. Anderson, 12th Dist.
No. CA2019-10-118, 2020-Ohio-4415. Those cases do not address the question whether
post-marital LTIP bonuses should be considered income for purposes of spousal support.
{¶ 32} Appellee argues that her income in the form of LTIP's must be excluded from
the calculation of her gross income for purposes of spousal support because much of
appellee's future LTIP income will be derived from shares previously included as part of the
division of marital property. Appellee claims that appellants position results in double-
dipping. We disagree.
{¶ 33} In Gaffney v. Gaffney, 12th Dist. No. CA2019-10-172, 2020-Ohio-5051, ¶ 16,
the trial court treated Husband's bonus stock options that had been exercised prior to the
end of the marriage as marital property and divided the shares equally. The trial court
treated the post-marital stock options as income to Husband and included the value of the
future stock options as part of his gross income for purposes of calculating his spousal
4Appeal not accepted in Ghanayem v. Ghanayem, 159 Ohio St. 3d 1417, 2020-Ohio-3365.
No. 21AP-3 12
support obligation. In so doing, the trial court adopted a tiered support model, as
recommended by husband, where his Tier 1 support was related to his base salary and his
Tier 2 support obligation was for future gross bonuses, commissions, or incentives he would
receive from his employer during the spousal support term.
{¶ 34} On appeal, Husband argued that trial court's spousal support order
constituted double-dipping. The court of appeals disagreed. Relying on their prior decision
in Ghanayem, the Gaffney court noted that the trial court ordered Husband to pay a sum
equal to 35 percent of "any future gross bonus or commission or incentive pay
Husband receives from his employer and during the spousal support term." (Emphasis
sic.) Id at ¶ 6. The Gaffney court concluded that no double-dipping occurred because the
trial court did not treat the same bonus, commission, or incentive pay as both marital
property and income. Id.{¶ 35} In this case, as was the case in Gaffney, appellant advocated a tiered approach to
spousal support that captured all of appellee's income, including her base salary, cash
bonus, and LTIP bonuses. Contrary to appellee's claim, treating her future LTIP bonus as
income for purposes of spousal support will not result in double-dipping as that term is
used in the case law. See Gallo v. Gallo, 10th. Dist. No. 14AP-179, 2015-Ohio-982, ¶ 18,
(Explaining that double-dipping occurs when income producing assets are divided between
the parties as marital property and the income subsequently derived from that property by
payee is counted as income for support purposes.). R.C. 3105.18(C)(1)(a) provides that "[i]n
determining whether spousal support is appropriate and reasonable * * * the court shall
consider * * * [t]he income of the parties, from all sources, including, but not limited to,
income derived from property divided, disbursed, or distributed under section 3105.171 of
the Revised Code." By adjusting appellee’s gross income, on remand, to account for income
appellee will receive from stock units included in the division of marital property, the trial
court will avoid double-dipping in this case.
{¶ 36} The trial court and appellee rely on Cwik at ¶ 90, in support of their
contention that the trial court did not abuse its discretion by excluding all of appellee's LTIP
bonus from her gross income for purposes of spousal support. The issue in Cwik was child
support. In Cwik, the court of appeals held that the trial court did not err in failing to
include a wife's "stock awards" as earnings on the child support worksheet for purposes of
No. 21AP-3 13
R.C. 3119.01, as they had been divided equally as property, such that they would have been
earnings for both parties. In making this ruling the court of appeals noted that the stock
awards were not exercisable for several years, and, with respect to the restricted stock units
awarded to wife after the marriage, the First District found as follows:
[Wife's] nonmarital 2008 RSUs were not exercisable in 2009,
and [Husband] has not cited any authority to support a
conclusion that the unascertainable value of these units
should have been included as income several years before
[Wife] could have actually realized any income. Thus, we
conclude that the trial court did not miscalculate [Husband's]
child-support obligation based on the exclusion of the RSUs.
Id. at ¶ 93.
{¶ 37} The First District decided Cwik in 2011. In our view, the subsequent
decisions of the Twelfth District in Ghanayem and Gaffney provide persuasive authority in
support of appellant's claim that LTIP bonus compensation is simply a bonus that should
be included in appellee's gross income for purposes of calculating spousal support. We
agree with Ghanayem and Gaffney and we find that appellee's compensation in the form
of LTIP shares is simply bonus compensation that must be included in her gross income for
purposes of calculating spousal support. The fact that the value of the bonus shares may be
difficult to ascertain is not relevant to the determination whether the shares should be
treated as income or property.
{¶ 38} We also considered the case of Jennings v. Jennings, 10th Dist. No. 16AP-
711, 2017-Ohio-8974, to define income for the purposes of spousal support. In Jennings,
appellant sought to have the trial court exclude veteran's benefits that were non-taxable
from income for spousal support calculation. Federal law did prohibit the state court from
attaching the benefits, but it did not prevent the trial court from including those benefits in
the income stream of Jennings. This court held that "[t]he trial court did not err when it
considered appellant's VA disability benefits as a source of income in determining a spousal
support award." Id. at ¶ 20. Jennings is instructive in determining that any LTIP bonus
received by appellee as income after the marriage shall be included in the income stream of
appellee for the purposes of calculating spousal support. The trial court failed to include
LTIP bonus as part of appellee's income while testimony supports that appellee receives the
bonus as part of her W-2 income.
No. 21AP-3 14
{¶ 39} In determining whether to award spousal support, a trial court must consider
the factors enumerated in R.C. 3105.18(C). Here, the trial court included appellee's yearly
cash bonus as part of her income for purposes of determining reasonable spousal support.
The trial court, however, expressly excluded appellee's yearly LTIP bonus from her gross
income in making the spousal support calculation. We agree with the reasoning employed
by the Twelfth District cases, and we find, under the particular circumstances of this case,
appellee's LTIP bonus should have been treated as income for purposes of spousal support.
Given the fact that appellee's yearly LTIP bonus was valued by appellant's expert at
$1,500,000 in the year 2000, we find it unfair and inequitable for the trial court to
completely exclude this form of compensation from appellee's gross income for purposes
of spousal support. By permitting appellee to retain all of her future LTIP bonuses as her
separate property, the trial court provided a windfall to appellee. Accordingly, we hold that
the trial court abused its discretion when it failed to consider any portion of appellee's
future LTIP bonus compensation in making the determination of reasonable spousal
support.
{¶ 40} Appellee argues alternatively, even if the trial court erred by failing to include
appellee's future LTIP in calculating spousal support, the amount of spousal support
awarded by the trial court is more than sufficient to permit appellant to enjoy the standard
of living established during the marriage. Appellee argues, therefore, there was no abuse
of discretion.
{¶ 41} Even if we were to agree with appellee that the amount of spousal support
awarded to appellant was sufficient to permit appellant to enjoy the standard of living of
the parties established during the marriage, the factor set forth in R.C. 3105.18(C)(1)(g), is
just one of the factors the trial court must consider in determining reasonable spousal
support. As we noted in Gallo, a trial court "may not base its decision regarding spousal
support on any one factor in isolation." Id. at 49, citing Kaechele v. Kaechele, 35 Ohio St.3d
93 (1988), superseded by statute on other grounds. Moreover, appellee's argument
presumes that the trial court would have made the same spousal support award had the
trial court considered all or part of appellee's future LTIP bonus as income. Given the
potential worth of appellee's post-marital LTIP bonuses, we cannot make such an
assumption.
No. 21AP-3 15
{¶ 42} To the extent that appellee argues the trial court's spousal support award is
justified by appellant's voluntary under employment, we agree with appellant that the trial
court did not make a specific finding that appellant was underemployed. Appellant and
appellee's relocation from Denver to D.C. was for appellant's employment. He had a
rigorous work schedule with Homeland Security, but there is no indication that he was not
earning above or at the same capacity as appellee while in this position. Both parties quit
their jobs in D.C. attempting to salvage their marriage. The parties move to Ohio was
precipitated by appellee's affair.
{¶ 43} One of the factors that the trial court is required to consider is the "lost
income production capacity of either party that resulted from that party's marital
responsibilities." R.C. 3105.18(C)(1)(m). Appellant has taken a position that allowed him
to provide for the care of the children while appellee has the more arduous work schedule
at Cardinal Health. Appellee asked that the trial court not consider that appellant lost
income when he increased his role in the children's care and lost income in the move to
Ohio.
{¶ 44} We also noted in Gallo that "[n]one of the factors set forth in R.C.
3105.18(C)(1) require a trial court to impute income to an unemployed or underemployed
spouse." Id. at 50, citing Walpole v. Walpole, 8th Dist. No. 99231, 2013-Ohio-3529, ¶ 60;
Valentine v. Valentine, 9th Dist. No. 11CA0088-M, 2012-Ohio-4202, ¶ 4; Petrusch v.
Petrusch, 2d Dist. No. 15960, 1997 Ohio App. LEXIS 823 (Mar. 7, 1997). There is no
testimony that appellee requested an expert conduct a vocational evaluation to investigate
appellant's earning potential. Based on the evidence, we cannot conclude that the trial
court found appellant underemployed in earning $125,000 per year. Therefore, we cannot
speculate as to the award of reasonable spousal support the trial court would have made
had it properly considered appellee's LTIP bonus as income and given appropriate weight
to all factors in R.C. 3105.18 for purposes of spousal support.
{¶ 45} As previously noted, the trial court valued appellee's 2020 LTIP bonus at
$1,500,000. Appellee also maintains that because her future LTIP bonus is not guaranteed,
it would be unfair to treat future LTIP's as income for purposes of spousal support. During
her direct examination, Smith explained the differences between LTIP shares appellee
receives as PSUs and those she receives as RSUs as follows:
No. 21AP-3 16
A. So * * * the difference between [Plaintiff's Exhibit] 1B,
which is the RSUs, and [Plaintiff's Exhibit] 1C, which is the
PSUs, is the two major differences. The first one is the RSUs
vest each year, one-third, one third, one-third. The second
difference about RSUs is that they are a known amount, so
meaning when an RSU grant happened, the RSUs are granted
for a certain dollar amount. So if it's $100,000 of RSUs, the
share price is $50 a share, then you get 2,000 RSUs. It's
always going to be 2,000 RSUs. It's not going to change. Then
in those 2,000 RSUs, one-third would vest one year from the
rant date, one-third vests two years from the grant date, and
one-third vests three years from the grant date. So I would call
it, like, a gradual vesting of equal vesting ach year.
The difference, when you flip over to talk about the PSUs, is
that they are an uncertain number. So I sort of think of it, the
PSUs, as being a potential number of units. And the way it
happens is that the PSUs are also assigned a dollar value and
then converted into a number of shares -- or units. Excuse me.
So if you took my example before and you were granted
$100,000 worth of PSUs, that would be potentially 2,000
shares. But what happens with the PSUs is two things, then,
different from the RSUs.
Number one is that they are performance stock units, so they
are based on Cardinal's performance year over year. Number
two, it's a three-year cliff vesting, meaning you vest zero
percent in one year, you vest zero percent in year two, you do
not vest until the very last day of year three, and then you vest
100 percent.
But if you remember, you had 2,000 PSUs, it doesn't
necessarily mean you are getting 2,000 PSUs. So the other big
difference is that the PSUs can get funded anywhere from zero
to 240 percent. That's a decision that is made by Cardinal's
compensation committee, is they look at that and the
performance of Cardinal's earnings per share, I think it is, and
they decide what percentage of those PSUs are going to get
funded.
So for an example is that the PSUs, the most recent PSUs, that
funded -- actually funded at 19 percent of what the target was.
So there's -- not only is it a longer cliff-vesting period, but
there is a question mark about what that percentage of
funding is going to be. So these aren't a set amount.
(Tr. Vol. 2 at 412-14.)
No. 21AP-3 17
{¶ 46} Russell did not disagree with Smith's testimony regarding the relative
characteristics of the RSUs and PSUs. Russell, however, calculated spousal support based
on the assumption that the value of Cardinal stock would remain constant, appellee would
continue to receive RSUs and PSUs at the present rate, and that appellee's PSUs would be
funded at 100 percent.
{¶ 47} We recognize that the calculation of spousal support will be more
complicated as a result of our determination that the trial court abused its discretion by
failing to treat appellee's LTIP bonus as income. On remand, the trial court will be required
to determine the likelihood that appellee will continue to receive RSUs and PSUs, the
estimated value of appellee's future LTIP's, and to what extent the future PSUs will be
funded. The trial court will also be asked to "true up" the spousal support award to account
for income taxes due and owing by appellee on her future LTIP's, as the expert testimony
established that appellee is required to pay income taxes on her LTIP bonus.5
{¶ 48} Appellee also maintains that treating appellee's future LTIP bonuses as
income for purposes of spousal support is manifestly unfair to her in light of the fact that
her future LTIP shares are subject to a "black-out period," meaning appellee is precluded
from immediately selling those shares. Appellee testified that the black-out periods are
imposed because appellee is privy to material, nonpublic Cardinal Healthcare information.
The trial court was persuaded by appellee's argument and found Ghanayem
distinguishable because there was no indication in that case whether any of Husband's LTIP
shares were subject to a black-out period. Our review of the expert testimony in this case
reveals that both Russell and Smith agreed that the black-out period is primarily a liquidity
issue, which is relevant to the division of property, but not particularly relevant to the
determination of gross income. (Tr. Vol. 2 at 482-83.) Appellant also expressed a
willingness at trial to accept shares of Cardinal Stock in payment of spousal support and to
retain those shares until appellee cleared her black-out restrictions. On remand, the trial
5 Smith testified on cross-examination as follows:
Q. You told the Court that it would be complex to figure out what is either property or income that was part of
the court order, yet, you created all of these charts and everything -- I know you are very talented so it's really
not that difficult to compute, is it?
A. It's not -- I think you can compute it. I just wanted the Court to understand that if you are going to order
it, there has to be some pretty sophisticated tracking that has to happen. You have to divide it out as property
you have to figure out the tax, and then you have to decide what percentage is going to be income and apply a
percentage to it after tax. I just want the Court to have information to make the decision. (Tr. at 97.)
No. 21AP-3 18
court may choose to fashion an order in this regard, as it did with the non-qualified stock
options. (Jgmt Entry/Decree of Divorce at 22-23.) Such an order would resolve any
disparity in share liquidity and market risk.
{¶ 49} R.C. 3105.18(C)(1) requires the trial court "[i]n determining whether spousal
support is appropriate and reasonable, and in determining the nature, amount, and terms
of payment, and duration of spousal support" to consider "[t]he income of the parties, from
all sources." (Emphasis added.) In order for the trial court to calculate fair and reasonable
spousal support on remand, the trial court must determine the weight and credibility of the
expert testimony and resolve the conflicting opinions regarding the probability that
appellee will continue to receive income from her LTIP bonuses and the projected amount
of income appellee will receive from those shares during the period in which spousal
support is payable. The trial court did not make any of the necessary determinations
because the trial court erroneously ruled that all of appellee's post-marital LTIP bonus
shares were her separate property, not income.6
{¶ 50} Appellant also challenges the relatively short duration of the spousal support
award in light of the length of time the parties were married. Because we are remanding
this matter to the trial court to re-determine the amount of spousal support that would be
fair and reasonable, and because the additional income to appellee will likely increase her
gross income, any opinion from this court regarding the duration of the spousal support
award would be premature.
{¶ 51} For the foregoing reasons, we sustain appellant's second assignment of error.
Accordingly, we shall remand this matter for the trial court to properly consider appellee's
future LTIP's as income for purposes of determining reasonable spousal support.
B. Appellant's First Assignment of Error
6The trial court retained jurisdiction "to modify each type of spousal support, but only as to amount." (Jgmt.
Entry/Decree of Divorce at 42.) Pursuant to R.C. 3105.18(F) the trial court may modify spousal support
where there has been a "change in the circumstances of a party [which] includes, but is not limited to, any
increase or involuntary decrease in the party's * * * bonuses," provided "[t]he change in circumstances is
substantial and makes the existing award no longer reasonable and appropriate," and "[t]he change in
circumstances was not taken into 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 circumstances was for[e]seeable."
(Emphasis added.)
No. 21AP-3 19
{¶ 52} In appellant's first assignment of error, appellant argues that the trial court
abused its discretion when it failed to include all of appellee's income when calculating child
support. We agree.
{¶ 53} R.C. 3119.03 provides:
In any action or proceeding in which the court determines the
amount of child support that will be ordered to be paid
pursuant to a child support order * * * the amount of child
support that would be payable under a child support order, as
calculated pursuant to the basic child support schedule and
applicable worksheet through the line establishing the actual
annual obligation, is rebuttably presumed to be the correct
amount of child support due.
{¶ 54} Where the basic schedule and worksheet apply, the guideline amount is
rebuttably presumed to be the correct amount of child support to be awarded. R.C. 3119.03.
Consequently, "[d]espite the discretion a trial court has in child support matters, the court
must literally and technically follow the statutory requirements in all material respects."
Wolf-Sabatino v. Sabatino, 10th Dist. No. 10AP-1161, 2011-Ohio-6819, ¶ 88, citing Marker
v. Grimm, 65 Ohio St.3d 139 (1992), paragraph two of the syllabus.
{¶ 55} For purposes of child support, "Gross income," is defined as "the total of all
earned and unearned income from all sources during a calendar year, whether or not the
income is taxable, and includes income from salaries, * * * bonuses * * * and all other
sources of income." R.C. 3119.01(C)(12). This court has noted that "[s]uch an expansive
definition is necessary to ensure that the best interest of children, the intended beneficiaries
of child support awards, are protected." Misra v. Mishra, 10th Dist. No. 17AP-306, 2018-
Ohio-5139, ¶ 32.
{¶ 56} In determining the amount of appellee's gross income for purposes of child
support, the trial court made the following pronouncement: "The parties agreed that,
Jessica's bonus and stock units should not be included." (Jgmt. Entry/Decree of Divorce at
43.) Appellant claims that there was no such agreement and the trial court erred by relying
on a non-existent agreement in determining child support. We agree.
{¶ 57} Our review of the record reveals no specific oral or written stipulation or
agreement between the parties to exclude appellee's cash bonus and LTIP bonus from the
calculation of appellee's child support obligation. Appellant concedes that there was no
No. 21AP-3 20
such agreement in this case. Appellee nevertheless argues that appellant either waived his
right to claim error on appeal or invited the trial court error of which he now complains.
Appellee points to several parts of the record which could arguably be construed as a
concession by appellant's trial counsel that appellee's yearly bonus and LTIP's were not a
consideration in calculating child support. For example, appellee points to the child
support worksheet completed by appellant which does not include appellee's cash bonus or
LTIP bonus as part of appellee's gross income.
{¶ 58} "[A] waiver 'is defined as " 'a voluntary relinquishment of a known right, with
the intent to do so with full knowledge of all the facts.' " ' " State v. Horton, 10th Dist. No.
17AP-266, 2017-Ohio-8549, ¶ 17, quoting Miller v. Lindsay-Green, Inc., 10th Dist. No.
04AP-848, 2005-Ohio-6366, ¶ 70, quoting RFC Capital Corp. v. EarthLink, Inc., 10th Dist.
No. 03AP-735, 2004-Ohio-7046, at ¶ 58, quoting Newsom v. Newsom, 10th Dist. No.
01AP-686, 2002-Ohio-1317, ¶ 6. "The doctrine of invited error holds that a litigant may not
'take advantage of an error which he himself invited or induced. Invited error requires that
counsel induced the error or was actively responsible for it.' " Deutsche Bank Natl. Trust
Co. v. Lane, 10th Dist. No. 07AP-1015, 2008-Ohio-5369, at ¶ 18; Agarwal v. Bansal, 10th
Dist. No. 00AP-732 (Mar. 30, 2001), quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor
Co., Lincoln-Mercury Div., 28 Ohio St.3d 20 (1986). "Invited error requires that counsel
induced the error or was actively responsible for it." Id., citing State v. Kollar, 93 Ohio St.
89 (1915).
{¶ 59} Our review of the entire record reveals that there was no waiver in this case,
and no invited error.
{¶ 60} In appellant's trial brief, filed August 28, 2020, appellant clearly sets forth his
argument that appellee's gross income is derived from a base salary, cash bonus and LTIP
bonus, and that the trial court should include all three components of appellee's income in
calculating both child support and spousal support. In appellant's brief, he notes: "Because
of the three-part income structure of the Plaintiff, it will be necessary for the court to
capture all income when it orders child and spousal support. This is important because
each year roughly 65 percent of Plaintiffs multi-million-dollar annual income comes from
stock grants." (Aug. 28, 2020 Defs.' Trial Brief on Income and Support at 7.) In a footnote,
appellant proposed the following: "Should this court for whatever reason opt to exclude
No. 21AP-3 21
Plaintiff's stock income from the 'all income' analysis, Defendant would then request this
court to revert to the traditional method of valuing child and spousal support on the
combination of base pay and bonus income." Id. at 8, Fn. 2.
{¶ 61} Additionally, in appellant's "closing argument," appellant's trial counsel
argued as follows:
Plaintiff's total compensation is set forth in the SEC proxy
statement filed, which defines her salary at $575,000, a bonus
component (which exceeded 100% of her salary in 2020), and
some amount of RSUs and PSUs, totaling just under
$3,000,000. Defendant has always maintained that the
court should determine the amount of child and spousal
support based on each of these three components. Child and
spousal support should be ordered on a monthly basis from
the Plaintiff's base income and that of Defendant. There
should be additional child and spousal support based on the
amount Plaintiff receives for a bonus each year.
The bonus portion of support should be 35% for spousal
support and 10% for child support. The final portion of the
child and spousal support should be those RSUs and PSUs
that vest each year, again 35% for spousal support and 10% for
child support. The fairness in this three-tier award is that
Defendant is in the same position as Plaintiff where he would
only receive the fixed percentage based on what the Plaintiff
actually receives (after taxes). The testimony established that
Plaintiff has always received a bonus and always received
grants.
(Emphasis added.) (Sept. 30, 2020 Def. Closing argument at 2.)
{¶ 62} It is clear to this court that the primary argument advanced by appellant in
the trial court was that appellee's cash bonus and LTIP bonus should be included in her
gross income for purposes of calculating child support. Our review of Russell's expert
testimony shows that his opinion regarding appellee's child support obligation is based
upon all three components of appellee's compensation from Cardinal Health; base salary,
cash bonus; and LTIP bonus. Thus, the record does not support waiver or invited error.
{¶ 63} Appellee argues alternatively, even if there was no agreement, waiver, or
invited error regarding the exclusion of appellee's cash bonus and LTIP bonus from the
calculation of appellee's child support obligation, the trial court properly exercised its
No. 21AP-3 22
discretion when it elected to deviate from the amount resulting from the worksheet. We
disagree.
{¶ 64} R.C. 3119.22 permits a deviation from the amount resulting from the
worksheet as follows:
The court may order an amount of child support that deviates
from the amount of child support that would otherwise result
from the use of the basic child support schedule and the
applicable worksheet if, after considering the factors and
criteria set forth in section 3119.23 of the Revised Code, the
court determines that the amount calculated pursuant to the
basic child support schedule and the applicable worksheet
would be unjust or inappropriate and therefore not be in the
best interest of the child.
If it deviates, the court must enter in the journal the amount
of child support calculated pursuant to the basic child
support schedule and the applicable worksheet, its
determination that the amount would be unjust or
inappropriate and therefore not in the best interest of the
child, and findings of fact supporting that determination.
(Emphasis added.)
{¶ 65} As previously noted, the trial court erred when it failed to include all of
appellee's income in making the calculation of child support pursuant to the basic child
support schedule and the applicable worksheet. The trial court also gave no indication in
its judgment entry that it was deviating from the amount of child support calculated
pursuant to the basic child support schedule and the applicable worksheet. Nor did the trial
court make any expressed determination that the amount would be unjust or inappropriate
and therefore not in the best interest of the child. The trial court made no findings of fact
supporting that determination, other than the erroneous finding that the parties agreed to
exclude appellee's yearly bonus and stock awards from the calculation. Given the amount
of appellee's cash bonus and LTIP bonus, we cannot assume the trial court would have
awarded the same amount of child support even if the trial court had included appellee's
cash bonus and LTIP bonus in the calculation.
{¶ 66} Appellee next contends that the child support award is justifiable in this case
because the trial court imputed additional income to appellant because he was voluntarily
underemployed. Even if we were to conclude that the trial court found appellant
No. 21AP-3 23
underemployed in the amount of $125,000 per year, we cannot speculate as to the award
of reasonable spousal support the trial court would have made had it properly considered
appellee's cash bonus and LTIP bonus as income for purposes of spousal support.
Moreover, the only reason given by the trial court for excluding appellee's bonuses was the
alleged agreement of the parties, not appellant's underemployment.
{¶ 67} "The starting point for determining the proper amount of child support to be
paid is parental income, defined as gross income for those employed to full capacity or gross
income plus potential income for those not employed to full capacity." Misra at ¶ 42, citing
Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-4542, ¶ 11. "This court has held that a
trial court's judgment as to the amount of child support is unreasonable, and an abuse of
discretion, when it lacks a rational basis or there is no sound reasoning process to support
it." Misra at ¶ 42, citing Poling v. Poling, 10th Dist. No. 13AP-189, 2013-Ohio-5141, ¶ 22,
citing Vaughn v. Vaughn, 12th Dist. No. CA2007-02-021, 2007-Ohio-6569, ¶ 12. Here, the
trial court's reliance on a non-existent agreement between the parties resulted in a child
support determination that lacked a rational basis or a sound reasoning process to support
it. Furthermore, because the trial court erroneously relied on the alleged agreement, the
trial court failed to "literally and technically follow the statutory requirements in all
material respects." Wolf-Sabatino, ¶ 88, citing Marker, at paragraph two of the syllabus.
{¶ 68} The evidence established that appellee has always received a cash bonus and
always received and LTIP bonus. The trial court determined that appellee's cash bonus
should be included in her gross income for purposes of the spousal support calculation. We
have determined that the trial court abused its discretion by completely excluding
appellee's LTIP bonus from her gross income for purposes of calculating spousal support.
{¶ 69} In determining gross income for purposes of child support, R.C. 3119.05(D)
requires the court to include the lesser of either (1) "[t]he yearly average of all * * * bonuses
received during the three years immediately prior to the time when the person's child
support is being computed" or (2) "[t]he total * * * bonuses received during the year
immediately prior to the time when the person's child support obligation is being
computed." Gross income for purposes of child support, "does not include 'nonrecurring
or unsustainable cash flow items' which are defined as income that a parent receives in any
year, not to exceed three years that the parent does not expect to receive on a regular basis."
No. 21AP-3 24
Ghanayem v. Ghanayem, 12th Dist. No. CA2018-12-138, 2020-Ohio-423, ¶ 19. See also
R.C. 3105.18(C)(12)(e) and (C)(8). On remand, the trial court will be required to consider
appellee's cash bonus and LTIP bonus as part of her gross income for child support
purposes in accordance with R.C. 3105.18(C).
{¶ 70} Based on the foregoing, we hold that the trial court abused its discretion when
it completely excluded appellee's yearly cash bonus and LTIP bonus from appellee's gross
income in calculating appellee's child support obligation. Appellant's first assignment of
error is sustained.
C. Appellant's Third Assignment of Error
{¶ 71} In appellant's third assignment of error, appellant claims that the trial court
abused its discretion by awarding appellee 40 percent of the income appellant might earn
from any book that appellant "is writing or plans to write" about the divorce. More
particularly, appellant contends that property that does not yet exist cannot be considered
marital property subject to division in a divorce proceeding. We agree.
{¶ 72} R.C. 3105.171(A)(3), defines marital property as follows:
(a) "Marital property" means, subject to division (A)(3)(b) of
this section, all of the following:
(i) All real and personal property that currently is owned by
either or both of the spouses, including, but not limited to, the
retirement benefits of the spouses, and that was acquired by
either or both of the spouses during the marriage.
(Emphasis added.)
{¶ 73} The evidence at trial showed that appellant authored several published works
during the marriage in the field of public policy. There is no evidence that appellant had
completed a book about the parties' marriage. During cross-examination, appellant
testified as follows:
Q. Well, let's talk about your book. You mentioned several
times that -- to Jessica and in your -- most recently in this case
in your trial brief that you're writing a book, correct?
A. I plan to write a book, yes.
Q. You wouldn't want to say anything in that book to denigrate
Jessica that would hurt your children, right?
A. I'm going to try to write the book in a way that is accurate
to what occurred so that allows me to then talk about the
No. 21AP-3 25
policy reforms that I believe would be beneficial to families
going forward.
(Emphasis added.) (Sept. 11, 2020 Tr. 2 Vol. at 911-12.)
{¶ 74} Based on appellant's undisputed testimony, there is no book about the
marriage currently in existence, and there is no evidence of any promise or agreement with
a third-party respecting the publication of any such book in the future. Appellee claims that
appellant has previously informed her that he has begun writing the book, but the email
correspondence she points to provides: "You make the book I will write better every
passing month so thank you." (Emphasis added.) (Aug. 12, 2020 Mot. of Pl. Protective
Order, Ex. C, at 13.) Appellee also testified that appellant "talked about, you know, putting
his -- letting all of the venom out in the book, he would write about this." (Emphasis
added.) (Aug. 31, 2020 Tr. Vol. 1 at 143.)
{¶ 75} A book about the marriage that appellant may write in the future
is mere expectancy and speculative; it is not marital property subject to division under R.C.
3105.171(A). Moreover, under the heading "Spousal Support," the trial court made the
following order:
If [appellant] receives any advance payment or payment from
any source whatsoever, for the publication of any type of
[appellant's] work, including books, magazines, online
magazines or articles appearing on social media sites, he
shall, in immediately notify [appellee] within 15 days of
receipt of the payment or advance payment, in which he will
disclose the amount of the payment.
(Jgmt. Entry/Decree of Divorce at 42.)
{¶ 76} Thus, the trial court recognized that future proceeds from any book that
appellant "is writing or plans to write" about the divorce should be treated as income to
appellant for purposes of spousal support, and not as marital property. Accordingly, we
hold that the trial court erred by awarding appellee 40 percent of the income appellant
might earn from any book that appellant "is writing or plans to write" about the divorce.
{¶ 77} For the foregoing reasons, appellant's third assignment of error is sustained.
V. CONCLUSION
No. 21AP-3 26
{¶ 78} Having sustained appellant's three assignments of error, we reverse the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
and remand the matter for further proceedings consistent with this decision.
Judgment reversed and remanded.
KLATT and MENTEL, JJ., concur.
_____________