[Cite as Wells v. Wells,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

DARREN R. WELLS C.A. No. 25557

Appellee/Cross-Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE CARRIE T. WELLS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant/Cross-Appellee CASE No. 2007-01-0035

DECISION AND JOURNAL ENTRY

Dated: March 28, 2012

MOORE, Judge.

{¶1} Appellant/Cross-Appellee, Carrie T. Wells, appeals from the judgment of the

Summit County Court of Common Pleas, Domestic Relations Division. Appellee/Cross-

Appellant, Darren R. Wells, also appeals from the same judgment. This Court affirms in part,

reverses in part, and remands the matter for further proceedings.

I.

{¶2} Carrie and Darren Wells were married in 1989 and have two children. In the mid

to late 1990’s, Mr. Wells accepted a job transfer to Australia. Mrs. Wells quit her job and, along

with their first child, moved to Australia. While in Australia, their second child was born. In

2000, Mr. Wells was transferred to Michigan. Then, in 2002, Mr. Wells accepted a position with

Goodyear Tire & Rubber Co. in Ohio. Mrs. Wells did not return to work, and instead cared for

the children and maintained the family residence. 2

{¶3} In July 2005, Mr. Wells left the marital residence. Since then, his salary and

bonuses with Goodyear have increased significantly. After mediation proved to be unsuccessful,

Mr. Wells filed a complaint for divorce in the Summit County Domestic Relations Court on

January 4, 2007. On March 8, 2007, the trial court issued an agreed judgment entry that

designated each party as the residential parent and legal custodian of the parties’ two minor

children, ordered Mr. Wells to maintain health insurance for the children and Mrs. Wells, and

ordered Mr. Wells to provide an accounting of all bonuses and executive performance benefits

from Goodyear. Goodyear was added as a party-defendant pursuant to Civ.R. 75(B) on January

25, 2008.

{¶4} On December 23, 2008, a trial commenced to determine the grounds for divorce,

the marriage termination date, and the spousal support amount. On May 4, 2009, the trial court

issued a judgment entry adopting the shared parenting plan agreed to by the parties on April 10,

2008, ruling that the de facto termination date of the marriage was July 1, 2005, awarding Mrs.

Wells 72 months of spousal support in the amount of $20,000 per month, and giving Mr. Wells

credit for “monies previously paid.”

{¶5} On June 1, 2009, Mrs. Wells filed a notice of appeal. On July 8, 2009, this Court

dismissed that appeal for lack of a final appealable order. We noted that the trial court’s entry

failed to mention division of property or child support.

{¶6} On October 15, 2009, Mrs. Wells filed a motion to modify the duration of spousal

support and the de facto termination date, and requested findings of fact and conclusions of law.

The motion was denied on February 3, 2009. On October 27, 2009, Mrs. Wells served a

subpoena duces tecum upon Goodyear seeking Mr. Wells’ financial information. On November 3

18, 2009, the trial court quashed the subpoena duces tecum and issued a protective order

prohibiting Mrs. Wells from any further discovery attempts from Goodyear.

{¶7} A trial on all remaining issues was held on April 20, 2010. Mrs. Wells filed an

affidavit of disqualification of the trial judge, Judge Hayes, with the Ohio Supreme Court on July

2, 2010. The request was denied on July 27, 2010. On July 28, 2010, the trial court issued a

final divorce decree dividing the marital property and establishing child support.

{¶8} Mrs. Wells timely filed a notice of appeal. She raises seven assignments of error

for our review. Mr. Wells filed a cross-appeal and raises two assignments of error for our

review.

II.

MRS. WELLS’ ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY ESTABLISHING THE DE FACTO MARRIAGE TERMINATION DATE AS JULY 1, 2005.

{¶9} In her first assignment of error, Mrs. Wells argues that the trial court erred when it

established the de facto marriage termination date of July 1, 2005. We do not agree.

{¶10} “[T]he decision to use the final hearing date or another date when valuing

property in a divorce action is a discretionary matter. The decision must reflect an unreasonable,

arbitrary or unconscionable attitude before this [C]ourt will reverse.” Budd v. Budd, 9th Dist.

No. 25469,

, ¶ 8, quoting Schrader v. Schrader, 9th Dist. No. 2664-M,

, *3 (Jan. 21, 1998). See also Berish v. Berish,

(1982)

(applying an abuse of discretion standard when establishing the duration of the marriage for

purposes of valuation). 4

{¶11} Under R.C. 3105.171(A)(2)(a), the phrase “during the marriage” is defined as

“the period of time from the date of the marriage through the date of the final hearing in an

action for divorce[.]” If the court determines that using those dates would be inequitable, the

court “may select dates that it considers equitable in determining marital property.” R.C.

3105.171(A)(2)(b). However, “we have previously noted that the statute ‘creates a presumption

that the proper date for termination of marriage is the date of the final divorce hearing.’”

, quoting Bowen v. Bowen,

(9th Dist. 1999), quoting Kohler v.

Kohler, 9th Dist. No. 96CA006313,

, *5 (Aug. 14, 1996). A trial court should

only impose a de facto termination where the evidence “clearly and bilaterally shows that it is

appropriate based on the totality of the circumstances.” Boggs v. Boggs, 5th Dist. No. 07 CAF

02 0014,

. “Generally, trial courts use a de facto termination of marriage

date when the parties separate, make no attempt at reconciliation, continually maintain separate

residences, separate business activities and/or separate bank accounts.” Eddy v. Eddy, 4th Dist.

No. 01CA20,

, ¶ 24, citing Gullia v. Gullia,

(8th

Dist. 1994).

{¶12} The trial court in this case concluded that a de facto termination date was

appropriate because “the parties separated in June 2005, and from that time have lived separate

and apart; [] the parties have been residing in separate residences, maintaining separate

households, have not attempted to reconcile their marriage, have not engaged in any marital

relations, and have not carried on a social relationship between them. Both parties testified that

there has been a complete absence of mutually supportive roles between them from June 2005 to

the present.” In addition, “[t]he evidence revealed that after the parties’ separation, the parties

have had separate financial accounts, and have been paying their own respective expenses.” 5

“After their separation in June 2005, both parties have engaged in efforts to terminate their

marriage, including but not limited to retaining counsel and engaging in the within proceedings,

and executing a Shared Parenting Plan. Further, after separation in June 2005, [Mr. Wells] has

had a continuous and intimate relationship with a significant other.” The trial court concluded

“that based on the totality of the circumstances, that it would be inequitable to utilize the date of

the final hearing in this matter as the date of the termination of the parties’ marriage.” It

determined that, as a matter of law, the marriage ended on July 1, 2005.

{¶13} On appeal, Mrs. Wells initially argues that the trial court erred when it failed to

explain its reasons for choosing a de facto date. The language above indicates that the trial court

explained its reasons for choosing the de facto date, so this argument is without merit.

{¶14} Next, Mrs. Wells argues that the trial court made comments that indicate that it

had “improperly predetermined that it would not use the statutory presumed date.” Specifically,

the trial court said, “My job is to determine the date that this marriage ends[.]” “I’ll decide

which date it is and everybody will go away equally unhappy.” Mrs. Wells argues that these

comments indicate that the trial court did not follow the statutory presumption. The record

indicates that these comments were made at a hearing the parties had requested for the purpose

of determining the termination date of the marriage. The comments, while perhaps injudicious,

do not demonstrate that the trial court failed to follow the statutory presumption. They could be

interpreted to mean that the court would equitably make its determination in such a way as not to

favor either party. As stated above, the journal entry indicates that the trial court considered the

appropriate factors, and as a whole, it does not demonstrate an abuse of discretion.

{¶15} Mrs. Wells further argues that the trial court “did not consider the objective

evidence that showed a bilateral agreement to continue the marriage until the presumed 6

termination date.” She appears to argue that the trial court erred in relying “almost exclusively

upon Mr. Wells’ unilateral actions that caused the parties to stop functioning as a marital unit[.]”

Trial courts must not “put undue emphasis on [a parties’] unilateral actions.” Day v. Day, 40

App.3d 155, 158 (10th Dist. 1988), (concluding that “the record contains no clear evidence that

would support a de facto termination on September 1, 1984, the date plaintiff vacated the marital

residence, as plaintiff’s unilateral action is insufficient herein to achieve that end.”). The trial

court indicated that, in addition to the husband’s departure from the martial home, it also looked

at the fact that the parties had been residing in separate residences, maintaining separate

households, had not attempted to reconcile their marriage, had not engaged in any marital

relations, and had not carried on a social relationship between them. Both parties testified that

there had been a complete absence of mutually supportive roles between them from June 2005 to

the present. Since the separation, both parties engaged in efforts to terminate their marriage,

including but not limited to retaining counsel, attending mediation, engaging in the within

proceedings, and executing a Shared Parenting Plan. Based on the trial court’s consideration of

all of these factors, we conclude that Mrs. Wells has not demonstrated that the trial court put

undue emphasis on Mr. Wells’ unilateral actions, or that it abused its discretion.

{¶16} Additionally, Mrs. Wells argues that the trial court ignored “objective evidence of

a continuing and substantial financial entanglement between Mr. and Mrs. Wells.” However, she

fails to direct this Court to any such evidence. As we have repeatedly held, “[i]f an argument

exists that can support this assignment of error, it is not this court’s duty to root it out.” Cardone

v. Cardone, 9th Dist. No. 18349,

, *8 (May 6, 1998). As such, this argument is

without merit. 7

{¶17} Next, Mrs. Wells argues that “[t]he financial evidence showed the parties’

objective bilateral agreement to have a continuing relationship until the trial date.” Specifically,

she argues that “the parties’ joint use of funds in joint checking accounts” shows a “continuing

financial entanglement.” She directs this Court to Plaintiff’s Exhibit 37 to support this

contention. This exhibit was admitted at trial on December 23, 2008, by Mr. Wells to show the

payments he had made to Mrs. Wells throughout the divorce proceedings. Mrs. Wells did not

object to its admission, and although she declined to do so, she had the opportunity to cross-

examine Mr. Wells about the information contained within. Instead, on October 15, 2009, Mrs.

Wells filed a motion to modify arguing that the transactions in the exhibit showed “Mr. Wells’

continued use of the funds” in the joint account. In the motion she lists numerous transactions

purported to have been made by Mr. Wells only for his personal use. She attached no affidavit

or exhibits to support this argument. The motion was subsequently denied on February 3, 2010.

At the April 20, 2010 hearing, Mrs. Wells attempted to cross-examine Mr. Wells again on this

exhibit. The trial court sustained Mr. Wells’ objections because Mrs. Wells’ prior counsel

previously had the opportunity to raise objections regarding the exhibit, as well as to cross-

examine Mr. Wells about the exhibit. The trial court acknowledged that it had previously made a

finding with regard to the exhibit and had determined the credit Mr. Wells should receive for

previous spousal support payments. Mrs. Wells did not offer any evidence at the April 20, 2010

hearing to support her arguments. On appeal, she simply directs this Court to the exhibit and

argues that it shows financial entanglement. To the contrary, the statements simply show funds

going in and out of the account. Mr. Wells testified that he deposited the $10,000 support

payments into the account each month. He attached copies of the checks to support this

contention. There is no other evidence to demonstrate the nature of other transactions, or which 8

party may have authorized them. The facts indicate that the couple utilized a joint account as a

vehicle for Mr. Wells to pay Mrs. Wells support payments. Although Mrs. Wells contends that

the statements demonstrate Mr. Wells’ personal use of the account as well, this contention,

without further evidence, is not evidence of continued financial entanglement, nor does it

demonstrate that the trial court abused its discretion in determining the de facto termination date.

{¶18} Mrs. Wells argues that the filing of joint tax returns for 2006 through 2008

demonstrates financial entanglement as well. The record indicates that it was Mrs. Wells who

requested the filing of joint tax returns because it would be a mutual benefit for the parties. The

Court subsequently ordered Mr. Wells to comply. This does not demonstrate that the parties

were in a bilateral agreement to remain financially dependent upon one another, but rather that

they sought out the most financially beneficial method of reporting their income. Finally, Mrs.

Wells argues that her use of the joint credit cards until July 2007 demonstrates financial

entanglement. The record indicates that Mr. Wells filed a motion to show cause against Mrs.

Wells for the improper charges on the credit card. Again, this is not sufficient evidence to

demonstrate an abuse of discretion by the trial court.

{¶19} Finally, Mrs. Wells argues that the trial court “impermissibly ignored Mrs. Wells’

substantial contributions to the development of Mr. Wells’ career.” She directs this Court to

Schrader,

, which concluded that the trial court did not abuse its discretion by

terminating the marriage as of the final hearing date though the value of the husband’s business

increased significantly between the separation date and the trial date. Id. at *3-4. There is no

question here that Mrs. Wells contributed to the couples’ success. However, by reference to that

fact, she has not demonstrated that the trial court abused its discretion in determining the de facto

date of termination. The record indicates that the trial court properly considered the necessary 9

factors and concluded that it would be inequitable to utilize the presumed statutory date of the

final hearing. Mrs. Wells’ first assignment of error is overruled.

MRS. WELLS’ ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO RECONSIDER AND ALTER ITS MAY 4, 2009 JUDGMENT ENTRY, WHICH ESTABLISHED JULY 1, 2005 AS THE DE FACTO MARRIAGE TERMINATION DATE.

{¶20} In her second assignment of error, Mrs. Wells reiterates the arguments discussed

in the first assignment of error. For the reasons stated above, the assignment of error is

overruled.

MRS. WELLS’ ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY MAKING AN AWARD OF SPOUSAL SUPPORT WITHOUT FIRST MAKING AN EQUITABLE DIVISION OF THE MARITAL PROPERTY.

{¶21} In her third assignment of error, Mrs. Wells argues that the trial court erred by

making an award of spousal support without first making an equitable division of the marital

property. We do not agree.

{¶22} This Court reviews a trial court’s award of spousal support under an abuse of

discretion standard. Brubaker v. Brubaker, 9th Dist. No. 22821,

, citing

Pauly v. Pauly,

(1997). However, “[w]hen reviewing whether a trial

court correctly interpreted and applied a statute, an appellate court employs the de novo standard

as it presents a question of law.” Nigro v. Nigro, 9th Dist. No. 04CA008461,

, citing Akron v. Frazier,

(9th Dist. 2001).

{¶23} Under R.C. 3105.171(C)(3), trial courts must “provide for an equitable division of

marital property * * * prior to making any award of spousal support to either spouse under

section 3105.18 of the Revised Code and without regard to any spousal support so awarded.” 10

Furthermore, R.C. 3105.18(B) provides that trial courts may award reasonable spousal support to

either party “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[.]”

{¶24} Thus, the trial court was required to make an equitable division of the marital

property under R.C. 3105.171 before it could make an award of spousal support. Mrs. Wells

argues that the trial court did not do so. The record indicates that in the May 4, 2009 judgment

entry, the trial court relied on the parties’ representations that the only matter before it was

spousal support and the duration of the marriage. Mrs. Wells timely filed a notice of appeal, and

the appeal was subsequently dismissed because the order did not contain property division or

child support. On remand, the trial court addressed the issues of property division and child

support. At the April 20, 2010 hearing, Mrs. Wells acknowledged that “R.C. 3105.18 requires

the Court to divide property first before it sets spousal support.” The trial court noted that it had

“just done the property division” and that it would now “do spousal support.” Later in the

hearing, it also acknowledged that Mrs. Wells had requested an increase in spousal support from

the May 4, 2009 entry, and the trial court stated that it would “take that under consideration.” It

is apparent from the record that the trial court divided the property, and subsequently

reconsidered the issue of spousal support. Upon reconsideration, it chose to reimpose the

previously ordered spousal support amount, and in doing so elected to incorporate the prior

entry. Civ.R. 75(F)(2) allows the court to incorporate into the judgment “issues of * * * spousal

support * * * [that] have been finally determined in orders, previously entered by the court[.]”

{¶25} We conclude that the trial court properly determined the division of property prior

to making an award of spousal support, in accordance with R.C. 3105.171(C)(3) and 3105.18(B).

Accordingly, Mrs. Wells’ assignment of error is overruled. 11

MRS. WELLS’ ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED BY FAILING TO VALUE AND THEN EQUITABLY DIVIDE THE MARITAL AND SEPARATE PROPERTY.

{¶26} In her fourth assignment of error, Mrs. Wells argues that the trial court erred by

failing to value and then equitably divide the marital and separate property. We do not agree.

{¶27} This Court has held that “[i]n order to formulate an equitable division of property

in divorce proceedings, the trial court should first determine the value of the property.”

Schiesswohl v. Schiesswohl, 9th Dist. No. 21629,

, citing Eisler v. Eisler,

(11th Dist. 1985). Without findings of value for the property, an

appellate court is unable to review the equality of the division of property.

.

{¶28} On appeal, Mrs. Wells argues that “the trial court did not make a finding of the

fair market value of each item of marital property and of the separate property of the parties.”

She only provides this court with two examples, so we will limit our review accordingly. See

generally App.R. 16(A)(7).

{¶29} First, Mrs. Wells directs this court to the “bonuses, incentives, and executive

performance pay earned by the husband [on or before] July 1, 2005.” (Emphasis removed). She

argues that she was “deprived of $151,783.00” of these monies. She does not indicate how she

arrived at this figure, so we are left to divine how she arrived at this amount. She provides a

citation to the trial court’s judgment entry ordering that “all bonuses, incentives, and executive

performance pay earned by the husband after July 1, 2005 shall be his property, free and clear

from any claim of the wife.” She provides no additional guidance, citations, or arguments with

regard to this portion of the assignment of error. As we have repeatedly held, “[i]f an argument

exists that can support this assignment of error, it is not this court’s duty to root it out.”

Cardone,

, at *8. As such, this portion of the assignment of error is overruled. 12

{¶30} Second, Mrs. Wells argues that the trial court failed to identify and value the

source of the funds used by Mr. Wells to purchase his Hudson, Ohio dwelling. The trial court

determined that, because the home was purchased after the de facto termination date of the

marriage, it was separate property and not subject to equitable division. On appeal, Mrs. Wells

argues that the source of funds for the down payment “was an issue” and that it “was Mr. Wells’

burden to establish that the funds used for the down payment to purchase the Hudson dwelling

were separate property.”

{¶31} At the April 20, 2010 hearing, the parties discussed the division of the marital

property. The court acknowledged that the parties had previously submitted assets to be divided,

including two pieces of real estate. However, because the trial court selected a July 1, 2005 de

facto termination date, Mr. Wells argued that the Hudson dwelling should not be listed as a

marital asset because it was acquired after that date. The trial court advised the parties that they

could argue the assets each believed should be divided, and that it would make the final

determination. On the record, the parties discussed the various assets that should be divided.

Mrs. Wells never raised the issue of the down payment for the Hudson dwelling. The trial court

ordered the parties to submit a supplemental judgment entry addressing the division of property.

The court asked the parties if there was any division of property that had not been completed. It

also asked the parties if there were any assets that had been “missed.” Mrs. Wells acknowledged

that some of the values needed to be verified, but she did not complain that any asset had been

overlooked.

{¶32} The parties ultimately decided to submit a proposed judgment entry. Mr. Wells’

proposed entry stated that he was to receive the Hudson property. On May 10, 2010, Mrs. Wells

filed objections to the proposed entry and argued that Mr. Wells “must provide information 13

about the financing and purchase of” the Hudson property. In his response, Mr. Wells argued

that “[it] cannot be disputed that this is [] separate property, given this Court’s ruling in regard to

the termination date of the marriage as July 1, 2005. Therefore, such a position and the records

discussed are irrelevant; and merely made for harassment and to place an undue burden upon

[Mr.] Wells.” On July 28, 2010, the trial court issued a final divorce decree. In it, the court

found that Mr. Wells’ Hudson residence “was purchased after the de facto date of the termination

of the marriage.” It further ordered that Mr. Wells was to receive the Hudson property.

{¶33} On appeal, Mrs. Wells argues that Mr. Wells failed “to establish that the funds

used for the down payment to purchase the Hudson dwelling were separate property.” However,

this issue was never properly raised before the trial court. Although she argued that Mr. Wells

“must provide information about the financing and purchase of” the Hudson property, she never

argued that the funds were marital property. At the hearing, the trial court asked the parties if

there were any assets that had not been discussed during the division of property, and this issue

was not raised. This Court has held that “an appellate court will not consider as error any issue a

party was aware of but failed to bring to the trial court’s attention” at a time when the trial court

might have corrected the error. State v. Dent, 9th Dist. No. 20907,

, ¶ 6. See

also Stefano & Associates, Inc. v. Global Lending Group, Inc., 9th Dist. No. 23799, 2008-Ohio-

177, ¶ 18 (“It is axiomatic that a litigant who fails to raise an argument in the trial court forfeits

his right to raise that issue on appeal”). The objection to the proposed entry was essentially an

evidence request, which should have been executed prior to trial or upon cross-examination.

Having failed to properly raise the issue before the trial court, Mrs. Wells has forfeited the right

to raise it on appeal. Accordingly, her fourth assignment of error is overruled. 14

MRS. WELLS’ ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED AND VIOLATED [MRS. WELLS’] DUE PROCESS RIGHTS IN DETERMINING THE NUMBER OF MONTHS TO BE CREDITED AGAINST THE TOTAL NUMBER OF MONTHS ALLOCATED AS THE DURATION OF SPOUSAL SUPPORT.

{¶34} In her fifth assignment of error, Mrs. Wells argues that the trial court erred in

determining the number of months of temporary spousal support to be credited to the duration of

the remaining spousal support. We do not agree.

{¶35} A trial court’s decision concerning spousal support may only be altered if it

constitutes an abuse of discretion. See Kunkle v. Kunkle,

(1990). An abuse

of discretion implies that the trial court’s attitude is unreasonable, arbitrary or unconscionable.

Blakemore v. Blakemore,

(1983).

{¶36} R.C. 3105.18(C)(1)(a) through (n) provides the factors that a trial court is to

consider in determining whether spousal support is appropriate and reasonable, and in

determining the nature, amount, terms of payment, and duration of spousal support:

(C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:

(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties; (d) The retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; (g) The standard of living of the parties established during the marriage; (h) The relative extent of 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, 15

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.

{¶37} Here, the trial court ordered spousal support to Mrs. Wells in the amount of

$20,000 per month for 72 months. The court also gave credit to Mr. Wells for 30 months of

spousal support for “the monies [that he] previously paid,” thus reducing the spousal support

payments term to 42 months. Mrs. Wells argues that such a credit was an abuse of discretion by

the trial court, and that it “is precisely the kind of look-back that this Court found to be a

violation of due process and reversible error.”

{¶38} Initially, we will address the trial court’s ability to grant the 30-month credit to

Mr. Wells. In Zimon v. Zimon, 9th Dist. No. 04CA0034-M,

, the wife was

awarded temporary spousal support during the proceedings and spousal support in the final

decree. Id. at ¶ 3, 13. On appeal, the husband argued that the trial court erred in its reliance on

the date of the divorce decree rather than the date of separation, and we agreed. Id. at ¶ 28-30.

He further argued that the trial court erred in failing to consider the temporary spousal support

payments made after the date of separation. Id. at ¶ 28. This Court determined “that it would be

inequitable to ignore the temporary support paid during the pendency of the proceeding when

deciding the duration of the support award[.]” Id. at ¶ 30. We further recognized “that such an

omission would skew the basis for setting the duration of such awards and have the negative

policy effect of encouraging the receiving spouse to prolong the proceedings in order to elongate

the actual period of spousal support.” Id. Here, as in Zimon, the date of separation was used as

the de facto termination date, but the trial court did consider temporary spousal support. As 16

such, it was not an abuse of discretion for the trial court to credit Mr. Wells with the temporary

spousal support payments made after this date.

{¶39} Mrs. Wells directs this Court to Ostmann v. Ostmann,

, 2006-

Ohio-3617 (9th Dist.), to support her argument that the trial court’s “look-back” was “a violation

of due process and reversible error.” Specifically, she argues that the trial court should not have

been permitted to “retroactively reduce a temporary support obligation that it imposed in a prior

temporary order[.]” This argument is without merit.

{¶40} In Ostmann, the final divorce decree increased the father’s child support

obligations and retroactively applied that increase to the start of the trial. Id. at ¶ 43. This

effectively created an immediate arrearage of approximately $3,575. Id. The decree “essentially

created an obligation * * * to pay an additional sum of money, after the fact, and then penalized

him for not having paid it.” Id. at ¶ 44. We concluded that this violated the father’s due process

rights. Id. at ¶ 45.

{¶41} The trial court here, however, did not retroactively reduce the temporary support

obligations. It merely took into consideration the amount of monies already paid by Mr. Wells

following the de facto termination date of the marriage. As we determined above, such

consideration was not an abuse of the court’s discretion under the circumstances. Mrs. Wells’

fifth assignment of error is overruled.

MRS. WELLS’ ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS CHILD SUPPORT AWARD BY FAILING TO ADHERE TO THE PROPER STANDARD AND BY FAILING TO ALLOW MRS. WELLS TO PRESENT FULL AND COMPLETE EVIDENCE OF THE NEEDS AND STANDARD OF LIVING OF THE PARTIES AND THE CHILDREN. 17

{¶42} In her sixth assignment of error, Mrs. Wells argues that the trial court erred in its

child support award when it failed to consider, and disallowed Mrs. Wells to present evidence of,

the needs and standard of living of the parties and the children. We agree.

{¶43} “The decision to admit or exclude evidence lies in the sound discretion of the trial

court. Absent an issue of law, this Court, therefore, reviews the trial court’s decision regarding

evidentiary matters under an abuse of discretion standard of review.” (Internal citations

omitted). Jones v. Jones, 9th Dist. No. 25468,

. When applying the abuse-

of-discretion standard, a reviewing court may not simply substitute its judgment for that of the

trial court. Pons v. Ohio State Med. Bd.,

(1993).

{¶44} R.C. 3119.04(B) governs child-support calculations when the combined gross

income of the parents exceeds $150,000 per year, providing that:

If the combined gross income of both parents is greater than one hundred fifty thousand dollars per year, the court, with respect to a court child support order, or the child support enforcement agency, with respect to an administrative child support order, shall determine the amount of the obligor’s child support obligation on a case-by-case basis and shall consider the needs and the standard of living of the children who are the subject of the child support order and of the parents. The court or agency shall compute a basic combined child support obligation that is no less than the obligation that would have been computed under the basic child support schedule and applicable worksheet for a combined gross income of one hundred fifty thousand dollars, unless the court or agency determines that it would be unjust or inappropriate and would not be in the best interest of the child, obligor, or obligee to order that amount. If the court or agency makes such a determination, it shall enter in the journal the figure, determination, and findings.

(Emphasis added.)

{¶45} In determining an appropriate amount of support, the statute directs the trial court

to consider the needs and standard of living of both the “children who are the subject of the child

support order and of the parents.” R.C. 3119.04(B). Additionally, many courts have found that

“when the income of the parents is greater than $150,000, the appropriate standard for the 18

amount of child support is ‘that amount necessary to maintain for the children the standard of

living they would have enjoyed had the marriage continued.’” Berthelot v. Berthelot,

,

(9th Dist.), quoting Birath v. Birath,

(10th Dist. 1988); see also Maguire v. Maguire, 9th Dist. No. 23581,

.

{¶46} In determining appropriate amounts of child support under R.C. 3119.04(B),

courts routinely specify that they have considered the expenses of the parents and the standard of

living the parents and children enjoyed prior to the separation and divorce, as well as the current

standard of living of the parents. See Bajzer v. Bajzer, 9th Dist. No. 25635,

;

Barone v. Barone, 6th Dist. No. L-07-1336,

; Bunkers v. Bunkers, 6th Dist. No.

WD-06-030,

, Kendall v. Kendall, 6th Dist. No. OT-04-004,

;

Cho v. Cho, 7th Dist. No. 03 MA 73,

; Wolfe v. Wolfe, 10th Dist. No. 04AP-409,

.

{¶47} In Moore v. Moore,

,

(3d Dist.), the

magistrate refused to allow the mother to present testimony about the children’s standard of

living, as well as the standard of living of both parents, and the family as a whole. Id. at ¶ 18.

The Third District concluded that the trial court erred in refusing to allow the testimony because

“the statute requires that the trial court consider the needs and standard of living of the child.”

Id. Thus, the mother should have been permitted to present testimony about the standard of

living enjoyed by the children, as well as the parents. Id. The Third district further concluded

that the trial court abused its discretion in excluding this evidence. Id.

{¶48} Here, the trial court refused to allow Mrs. Wells to present testimony about the

children’s standard of living, as well as Mr. Wells’ standard of living. During the hearing, Mr.

Wells was asked about the furnishings in his home. The trial court sustained Mr. Wells’ 19

objection. Mrs. Wells argued that “it goes to the lifestyle that the children would have enjoyed if

the couple had stayed married.” The trial court ordered her to proceed to the next question.

Later, the trial court refused to allow Mr. Wells to answer questions regarding his wishes for the

children’s education, specifically if he preferred that the children remain in private schooling.

The trial court replied, “I don’t care what school they go to. I’ve said that before.” Mrs. Wells

argued that this was important to know for child support purposes. The trial court ordered her to

“move on” and to stop arguing “every question [or] we’ll be here forever.” Because the trial

court was required to consider the standard of living that the children would have enjoyed had

the parties’ marriage continued, we conclude that the trial court abused its discretion in

excluding this evidence. See also Berthelot,

(concluding that the

trial court abused its discretion by failing to consider the amount necessary to maintain the

standard of living the children would have had).

{¶49} Accordingly, Mrs. Wells’ sixth assignment of error is sustained.

MRS. WELLS’ ASSIGNMENT OF ERROR VII

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY QUASHING THE SUBPOENA DUCES TECUM AND PROHIBITING FURTHER DISCOVERY FROM GOODYEAR.

{¶50} In her seventh assignment of error, Mrs. Wells argues that the trial court erred

when it quashed the subpoena duces tecum which prohibited further discovery from Goodyear.

We do not agree.

{¶51} A trial court enjoys broad discretion in the regulation of discovery proceedings.

Manofsky v. Goodyear Tire & Rubber Co.,

(9th Dist. 1990). See also

State ex rel. The V. Cos. v. Marshall,

(1998). Therefore, absent an abuse

of discretion, an appellate court will not overturn the trial court’s ruling on such matters. 20

. An abuse of discretion implies that the trial court’s attitude is unreasonable,

arbitrary or unconscionable. Blakemore,

. “Despite this broad discretion

held by trial courts in discovery matters, trial courts must consider the interests of parties seeking

discovery and the interests of parties and nonparties resisting discovery.” Martin v. The Budd

Co.,

(9th Dist. 1998).

{¶52} The record indicates that the trial court granted Mrs. Wells’ motion to add

Goodyear as a party-defendant pursuant to Civ.R. 75(B) on January 25, 2008. On October 27,

2009, Mrs. Wells served a subpoena duces tecum upon Goodyear Tire & Rubber Co. seeking

Mr. Wells’ financial information. Mr. Wells filed a motion to quash the subpoena because (1)

Mrs. Wells had previously requested and received the income information, and (2) because

Goodyear was a party to the action, the subpoena was improper and in violation of Civ.R. 45.

The trial court granted the motion to quash the subpoena on November 18, 2009.

{¶53} Civ.R. 45(A) provides that “[a] subpoena may not be used to obtain * * * the

production of documents by a party in discovery. Rather, * * * documents or electronically

stored information may be obtained from a party in discovery only pursuant to Civ.R. 34.” Thus,

the subpoena was not the proper procedure to request the financial information.

{¶54} Accordingly, her seventh assignment of error is overruled.

MR. WELLS’ ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY DISMISSING AND DENYING [MR. WELLS’] MOTIONS RELATING TO PARENTING ISSUES.

{¶55} In Mr. Wells’ first assignment of error on cross-appeal, he argues that the trial

court erred by dismissing and denying his motions relating to parenting issues. We do not agree. 21

{¶56} “This [C]ourt will not overturn a lower court’s determination in a contempt

proceeding absent an abuse of discretion.” Malson v. Berger, 9th Dist. No. 22800, 2005-Ohio-

6987, ¶ 6. Similarly, an order concerning modification of parent rights and responsibilities is

reviewed under an abuse-of-discretion standard. Waggoner v. Waggoner,

(9th Dist. 1996). An abuse of discretion implies that the trial court’s attitude is unreasonable,

arbitrary or unconscionable. Blakemore,

.

{¶57} In the trial court, Mr. Wells filed five motions to show cause and one motion to

modify parental rights and responsibilities without a hearing. On appeal, he argues that the trial

court dismissed these motions without an evidentiary hearing and without providing its findings

or rationale for such a decision. However, a review of the transcript reveals that the trial court

addressed the pending motions at the April 20, 2010 hearing. The trial court offered to schedule

another hearing on the remaining motions. Mrs. Wells mentioned that the divorce decree would

not be final if the remaining motions were not addressed. The trial court gave the parties the

option of dismissing the motions so that there would be a final divorce decree and then the

parties would have the opportunity to refile the motions, or, in the alternative, preserving the

issues in the decree such that there would not yet be a final divorce decree. Mr. Wells stated that

he would like to preserve the motions. The trial court stated that it would prefer to have a final

decree and asked the parties to refile their motions. Mr. Wells offered no objection, and instead

directed the trial court’s attention to objections on the exhibits.

{¶58} We conclude that Mr. Wells failed to preserve this argument on appeal by failing

to formally object. This Court has held that “an appellate court will not consider as error any

issue a party was aware of but failed to bring to the trial courts attention” at a time when the trial

court might have corrected the error. Dent,

, at ¶ 6. See also Stefano & 22

Associates,

(“It is axiomatic that a litigant who fails to raise an argument

in the trial court forfeits his right to raise that issue on appeal”). While a litigant who forfeits

such an argument still may argue plain error on appeal, this court will not sua sponte undertake a

plain-error analysis if the litigant fails to do so. See State v. Hairston, 9th Dist. No.

05CA008768,

. Because Mr. Wells forfeited this issue for appeal and has

not raised a claim of plain error, his first assignment of error lacks merit and is overruled.

MR. WELLS’ ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN ITS DETERMINATION OF SPOUSAL SUPPORT IN THE AMOUNT OF $20,000.00.

{¶59} In his second cross-assignment of error, Mr. Wells argues that the trial court

abused its discretion in its determination of spousal support. We do not agree.

{¶60} This Court reviews a trial court’s award of spousal support under an abuse of

discretion standard. Brubaker,

, citing Pauly,

;

Booth, 44 Ohio St.3d at 144. An abuse of discretion implies that the trial court’s attitude is

unreasonable, arbitrary or unconscionable. Blakemore,

.

{¶61} Mr. Wells argues that the trial court abused its discretion in its award of spousal

support because the evidence indicates that Mrs. Wells can adequately sustain her lifestyle with

the income from her property division and the temporary spousal support. He cites to Simoni v.

Simoni,

(8th Dist. 1995) to support his contention that spousal support is

not appropriate if it provides a spouse with more than he or she “needs” to sustain an

“appropriate and reasonable lifestyle.” However, as Mrs. Wells correctly points out in her brief,

Simoni “was based upon the standard of need; which is no longer the standard.” Janosek v.

Janosek, 8th Dist. Nos. 91882, 91914,

, ¶ 31. This Court has previously noted 23

that the legislature amended R.C. 3105.18, effective April 11, 1991, and established “a

significantly different standard for awarding spousal support, as compared with the statute it

replace[d]. The new ‘appropriate and reasonable’ standard is broader than the old ‘necessary’

standard and allows the trial court more latitude.” Young v. Young, 9th Dist. No. 93CA005554,

, *2 (Dec. 29, 1993). Because Simoni was based upon the previous standard,

Simoni is inapplicable to the case at bar.

{¶62} Other than criticizing the lower court for granting spousal support in an amount

that he feels is greater than Mrs. Wells’ needs, Mr. Wells fails to offer an argument or

justification for reducing the amount of the obligation. “Disagreeing with the trial court’s

conclusions, without showing the unreasonableness, arbitrariness, or unconscionability of the

trial court’s actions, is insufficient to demonstrate an abuse of discretion.” Fisher v. Fisher, 3d

Dist. No. 7-01-12,

, *8 (Mar. 22, 2002).

{¶63} A trial court is bound to consider all the factors contained in R.C. 3105.18(C)(1)

in awarding spousal support; however the amount of spousal support remains within the

discretion of the trial court. Moore v. Moore,

(9th Dist. 1992). The trial

court’s entry expressly states that after considering the length of the marriage, the education of

the parties, the ability to earn income, the necessary expenses of the parties, Mr. Wells’ ability to

pay, and considering the lifestyle previously enjoyed by the parties, and after reviewing all of the

other factors set forth in R.C. 3105.18(C)(1), in addition to the monies already paid by Mr.

Wells, spousal support in the amount of $20,000 for a period of seventy-two months would be

appropriate. The record does not indicate that the trial court acted unreasonably, arbitrarily, or

unconscionably. Blakemore,

.

{¶64} Mr. Wells’ second assignment of error is overruled. 24

III.

{¶65} Mrs. Wells’ sixth assignment of error is sustained. Her remaining assignments of

error are overruled. Mr. Wells’ assignments of error on cross-appeal are overruled. The

judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is

affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

CARLA MOORE FOR THE COURT

CARR, P. J. DICKINSON, J. CONCUR 25

APPEARANCES:

RICHARD A. RABB and CHARLES J. PAWLIKIEWICZ, Attorneys at Law, for Appellant/Cross-Appellee.

JOSEPH G. STAFFORD and GREGORY J. MOORE, Attorneys at Law, for Appellee/Cross- Appellant.

PATRICK H. LEWIS, Attorney at Law, for Goodyear Tire & Rubber Co.