[Cite as Berger v. Berger,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

SANDRA L. BERGER, : OPINION

Plaintiff-Appellant/ : Cross-Appellee, : CASE NO. 2017-G-0108 - vs - : THEODORE J. BERGER, JR., :

Defendant-Appellee/ : Cross-Appellant.

Appeal from the Geauga County Court of Common Pleas, Domestic Relations Division, Case No. 12 D 000254.

Judgment: Modified and affirmed as modified.

Sandra L. Berger, pro se, 15 Mile Course, Williamsburg, VA 23185 (Plaintiff- Appellant/Cross-Appellee).

Deanna L. DiPetta and Amy M. Keating, Zashin & Rich Co., L.P.A., Ernst & Young Tower, 950 Main Avenue, 4th Floor, Cleveland, OH 44113 (For Defendant- Appellee/Cross Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant/Cross-Appellee, Sandra L. Berger NKA Sandra L. Evans,

appeals the trial court’s decision on remand following a prior appeal to this court.

Appellee/Cross-Appellant, Theodore J. Berger, cross-appeals. We modify the trial

court’s decision and affirm as modified. {¶2} We issued our prior decision in this case in December 2015 and affirmed

in part, reversed in part, and remanded this case finding three errors. Berger v. Berger,

11th Dist. Geauga No. 2014-G-3191,

,

, ¶14. The factual

and procedural history is fully set forth in our prior opinion and will not be recited here.

{¶3} Following remand, the trial court issued its new decision December 30,

2016. In response to our 2015 opinion, the trial court reconsidered its valuation of

Dreison International, Inc. and included the additional testimony of Gary Wilson; it

provided additional security measures to ensure Theodore’s property division payments

to Sandra; and it reconsidered its spousal support award based on the evidence in the

record.

{¶4} Sandra asserts two assigned errors:

{¶5} “[1.] The trial court erred as a matter of law and abused its discretion in its

determination as to the valuation of Dreison.

{¶6} “[2.] The trial court erred as a matter of law and abused its discretion in its

determination of spousal support.”

{¶7} Theodore raises five assignments of error:

{¶8} “[1.] The trial court erred in failing to provide a sufficient basis for its

December 30, 2016 spousal support award and by issuing an award in contravention of

this court’s prior decision.

{¶9} “[2.] The trial court committed reversible error in failing to issue separate

findings of fact and conclusions of law in response to the appellee’s timely request

under Civ.R. 52.

2 {¶10} “[3.] The trial court abused its discretion in the amount of its December 30,

2016 spousal support award.

{¶11} “[4.] The trial court abused its discretion in failing to set forth a specific and

certain termination date for appellee’s spousal support obligation.

{¶12} “[5.] The trial court erred and abused its discretion by requiring appellee to

pledge his stock to appellant and produce corporate tax returns to appellant to allegedly

secure his property division payments.”

{¶13} A majority of the parties’ arguments concern matters entrusted to the

discretion of the trial court, which we review for an abuse of discretion. Abram v.

Abram, 9th Dist. Medina No. 3233-M,

(stating that absent an abuse of

discretion, an appellate court will not reverse a trial court's decision regarding spousal

support).

{¶14} “‘[T]he term “abuse of discretion” is one of art, connoting judgment

exercised by a court, which does not comport with reason or the record.’ State v.

Underwood, 11th Dist. No. 2008–L–113,

,

, ¶ 30,

citing State v. Ferranto,

, 676–678,

(1925). * * *[A]n

abuse of discretion is the trial court's ‘failure to exercise sound, reasonable, and legal

decision-making.’ State v. Beechler, 2d Dist. No. 09–CA–54,

,

, ¶ 62, quoting Black's Law Dictionary (8 Ed.Rev. 2004) 11. When an

appellate court is reviewing a pure issue of law, ‘the mere fact that the reviewing court

would decide the issue differently is enough to find error (of course, not all errors are

reversible. Some are harmless; others are not preserved for appellate review). By

contrast, where the issue on review has been confined to the discretion of the trial court,

the mere fact that the reviewing court would have reached a different result is not

3 enough, without more, to find error.’ Id. at ¶ 67.” Ivancic v. Enos, 11th Dist. Lake No.

2011-L-050,

,

, ¶70.

{¶15} Sandra’s first assigned error contains three arguments regarding the

valuation of Theodore’s business. She argues the trial court erred in its valuation of

Dreison on remand because it did not consider Wilson’s purchase offer; it erred in

adopting Davis’ valuation; and it erred in not considering additional evidence on this

issue, i.e., the company’s value set forth in Theodore’s 2014 prenuptial agreement. We

disagree.

{¶16} We held in our prior decision that the trial court erred in excluding Wilson’s

testimony, finding that it was improperly excluded as irrelevant, and instead explained,

“[a]lthough there may have been issues regarding Wilson’s credibility as a witness or

concerns regarding how he arrived at this offer, these issues go to his credibility * * *,

and as such, could have been addressed on cross-examination.”

.

Thus, we reversed and remanded the issue to the trial court for it to reconsider the

company’s value upon including Wilson’s testimony.

{¶17} Contrary to Sandra’s argument, the trial court considered Wilson’s

testimony, who testified on remand via video conference consistent with our prior

opinion. The trial court, however, found his testimony unpersuasive and not compelling

as to the company’s valuation. Its decision, in weighing and considering competing

evidence on this issue, was well within its discretion.

{¶18} The trial court was likewise within its discretion in believing and relying on

Davis’ valuation of Dreison over that of Ranallo’s valuation. “Evaluating evidence and

assessing credibility are primarily for the trier of fact * * *.” (Citation omitted.) Moore v.

Moore,

,

, (9th Dist. 1992). And absent an abuse

4 of discretion, we are precluded from substituting our opinion for that of the trial court.

Ivancic, supra, ¶70. The trial court’s findings in this regard are detailed in our prior

decision.

. Further, we previously rejected Sandra’s argument

that the court erred in adopting Davis’ valuation over Ranallo’s, but we nevertheless

remanded for the court to allow and consider Wilson’s testimony on this as well. Thus,

this argument lacks merit.

{¶19} We also disagree with Sandra’s claim that the trial court erred in not

considering the valuation of Dreison in Theodore’s prenuptial agreement with his

second wife, Cindy. As set forth in our prior opinion, the parties agreed to a June 30,

2011 valuation date for determining the company’s value as well as the marital share of

the equity interest. Id. at ¶30. The prenuptial agreement dated May 2014, however,

values Theodores’ 99.85 percent of the business approximately three years later. In

addition, our prior opinion identifies the evidence to be considered on remand as the

parties’ respective expert reports and testimony and Wilson’s offer “to buy the company

and his bases for said offer.” Id. at ¶92. Sandra did not previously attempt to introduce

this prenuptial agreement as evidence, and she fails to direct our attention to anything

requiring a trial court on remand to consider additional evidence not previously offered.

{¶20} Accordingly, Sandra’s first assigned error lacks merit in its entirety and is

overruled.

{¶21} Sandra’s second alleged error asserts an abuse of discretion based on the

trial court’s spousal support determination. She claims it erred in failing to consider

additional evidence as to Theodore’s increased income and earning capacity set forth in

his May 2014 prenuptial agreement and in its application of the factors in R.C.

3105.18(C)(1), which state:

5 {¶22} “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:

{¶23} “(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;

{¶24} “(b) The relative earning abilities of the parties;

{¶25} “(c) The ages and the physical, mental, and emotional conditions of the

parties;

{¶26} “(d) The retirement benefits of the parties;

{¶27} “(e) The duration of the marriage;

{¶28} “(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;

{¶29} “(g) The standard of living of the parties established during the marriage;

{¶30} “(h) The relative extent of education of the parties;

{¶31} “(i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;

{¶32} “(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;

{¶33} “(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

6 be qualified to obtain appropriate employment, provided the education, training, or job

experience, and employment is, in fact, sought;

{¶34} “(l) The tax consequences, for each party, of an award of spousal support;

{¶35} “(m) The lost income production capacity of either party that resulted from

that party's marital responsibilities;

{¶36} “(n) Any other factor that the court expressly finds to be relevant and

equitable.”

{¶37} We disagree. First, the court states it considered the foregoing factors

and explains its deviation from its prior $5,000 a month for 90-month award to its $9,000

a month indefinite spousal support award as based on the lack of evidence that Sandra

is employable as a secretary or a meditation or yoga instructor, or if she was

employable, what her income potential would be. Thus, consistent with our prior

opinion, it reconsidered and increased its spousal support determination without relying

on the magistrate’s findings that we found were not supported by the evidence.

.

{¶38} In addition, we advised the trial court on remand to “determine spousal

support based on the current record or take additional evidence to the extent permitted.”

The trial court did not err or abuse its discretion in choosing to decide the issue based

on the previously submitted evidence. Its decision is consistent with our directive on

remand. Accordingly, Sandra’s second assigned error lacks merit.

{¶39} Based on the foregoing, Sandra’s assigned errors are overruled.

{¶40} As previously stated, Theodore asserts five assigned errors in his cross-

appeal. He first challenges the trial court’s new spousal support award as contrary to

our prior decision and lacking a sufficient basis. We disagree.

7 {¶41} The trial court previously awarded Sandra spousal support in the amount

of $5,000 per month for 90 months or 7.5 years. However, both the amount of its award

and the duration of the award were based on its findings that Sandra was employable

within 7.5 years as a secretary or meditation/yoga instructor with a potential annual

income of $60,000 to $90,000. We rejected these findings as not supported by any

evidence in the record.

. Thereafter, the trial court on remand

did not consider or address additional evidence, but simply modified the amount and

term of its prior award based on the error identified in on our opinion. Its modification of

the term of the award from 7.5 years to an indefinite award is supported by the record

and directly corresponds with our decision. Its decision to increase spousal support by

$4,000 per month also corresponds with the lack of evidence as to Sandra’s potential

future income. The trial court’s findings on remand are permissibly narrow in light of the

limited changes from its prior decision on this issue. It was not required to rehash its

consideration of the other R.C. 3105.18(C)(1) factors on remand.

{¶42} Moreover, we did not preclude the trial court from considering both the

term and the amount of the award on remand even though we acknowledged in our

prior opinion that an indefinite award was not required in a marriage of long duration.

Id. at ¶143. Accordingly, we find no abuse of discretion.

{¶43} Theodore’s second cross-assignment of error asserts the trial court

committed reversible error in failing to issue additional findings of fact in support of its

increased spousal support award. Theodore requested findings of fact after the trial

court issued its December 30, 2016 decision, and argues the trial court failed to fully

detail its findings in support of its spousal support determination sufficient to allow

appellate review.

8 {¶44} A trial court must issue findings of fact and conclusions of law if a timely

request is made to provide appellate courts an adequate basis to determine the validity

of the basis for its decision. Civ.R. 52; Werden v. Crawford,

,

(1982). A trial court substantially complies with Civ.R. 52 if “‘the

contents of the opinion, when considered together with other parts of the record, form

an adequate basis upon which to decide the narrow legal issues presented.’” State ex

rel. Gilbert v. Cincinnati,

,

,

,

quoting Brandon/Wiant Co. v. Teamor,

,

(1999). As Theodore contends, a trial court's failure to substantially comply with Civ.R.

52 constitutes reversible error.

{¶45} However, and as indicated previously, the trial court’s spousal support

decision on remand is sufficient for appellate review. As stated under Sandra’s second

alleged error, the trial court’s original spousal support decision and findings, in addition

to its limited findings on remand, are sufficient for appellate review. The issue on

remand was the lack of evidence as to Sandra’s potential future income. Because the

trial court did not accept additional evidence on this issue on remand, its new findings

coupled with its prior detailed analysis of the applicable factors is sufficient.

Consequently, the trial court’s decision to increase the amount of the award, as well as

to change the duration of the award from 7.5 years to an indefinite award, correspond

with its findings. Theodore’s second cross-assignment of error is overruled.

{¶46} His third assigned error asserts the trial court abused its discretion in

increasing his spousal support obligation from $5,000 to $9,000 per month because this

amount in addition to Sandra’s receipt of the annual $150,000 property division award

exceeds her standard of living she was accustomed to during the marriage. He also

9 claims that this increased spousal support award plus his annual property division

obligation exceed his annual income of $250,000 per year. This argument, however,

ignores the distinction between spousal support and a property division under R.C.

3105.171. R.C. 3105.18(A) states that spousal support “does not include any payment

made to a spouse or former spouse, * * * that is made as part of a division or distribution

of property * * * under section 3105.171 of the Revised Code.” (Emphasis added.)

{¶47} Furthermore, a trial court must consider all the statutory factors in

fashioning an appropriate and reasonable spousal award and not focus on just one.

Taylor v. Taylor, 11th Dist. Trumbull No. 2015-T-0110,

. A party’s

standard of living during the marriage is only one factor a court is required to consider

upon fashioning a spousal support award.

; R.C.

3105.18(C)(1)(g). Thus, Theodore’s argument lacks merit.

{¶48} As for Theodore’s argument that the spousal support award plus his

property division payments exceed his annual income, he is correct. His monthly

support payment of $9,000 times 12 months equals $108,000 per year. This in addition

to his $150,000 annual property division obligation exceeds his $250,000 annual

income by $8,000. Theodore was ordered to pay Sandra $2,095,144.40 for her

equitable division of marital property via annual installments of $150,000 until she is

paid in full. The court could have directed him to pay her equitable portion in full via a

lump sum payment, but instead as an accommodation it ordered installments over a

period of years in light of the evidence that his business was not liquid.

{¶49} The trial court ordered Theodore to pay Sandra $9,000 per month or

$108,000 per year, which is less than half of his $250,000 income. Pursuant to

Theodore’s argument, he will now have to liquidate assets to pay his spousal support

10 obligation. However, his argument ignores the fact that assuming he is forced to

liquidate assets, he would be liquidating assets to pay Sandra her share of the marital

property, which he could have been ordered to liquidate outright.

{¶50} We have previously addressed a comparable issue and found that a trial

court abuses its discretion “by failing to take into account the depletion of” the obligor

spouse’s separate assets and that one should not be required to liquidate his non-

marital assets to continue paying a spousal support order. Shivak v. Shivak, 11th Dist.

Trumbull No. 2014-T-0101,

,

, ¶17, 24 (addressing a

motion to modify spousal support). Unlike Shivak, Theodore argues he cannot satisfy

his spousal support award, based solely on his annual income, because of his $150,000

annual payment to Sandra for the division of marital property. Although Theodore’s

marital property division obligation is relevant under R.C. 3105.18(C)(1)(i), upon

considering Theodore’s assets and liabilities, we do not find that the increased spousal

support award here fails to comport with reason or the record. The trial court’s decision

was within its broad discretion, Bolinger v. Bolinger,

,

(1990), and his third assigned error is overruled.

{¶51} Theodore’s fourth assigned error alleges the trial court abused its

discretion in failing to set a spousal support termination date and that it has violated the

law of the case doctrine because we addressed this issue in our prior decision.

{¶52} As he contends, Sandra argued in part under her fourth assigned error

that the trial court erred in limiting its spousal support award to a 90-month period. Her

assigned error challenged both the amount and the duration of the trial court’s original

spousal support award and asserted numerous arguments in support. Berger v. Berger,

11th Dist. Geauga No. 2014-G-3191,

,

, ¶133. One of

11 her arguments alleged an abuse of discretion based on the court’s failure to award her

indefinite spousal support. We disagreed, finding that “long marriages do not, as a

matter of law, require indefinite spousal support awards * * *.” Id. at ¶143. We

nevertheless found that this assigned error had merit “in regard to the trial court's

predication concerning Wife's future earning capabilities and the need for her to acquire

new skills[,]” and we directed the trial court on remand to “determine spousal support

based on the current record or take additional evidence to the extent permitted.” Id. at

¶144.

{¶53} As stated previously, on remand the trial court modified both the amount

and the term of the spousal support from 7.5 years to an indefinite award while

reserving jurisdiction on this issue because its prior determination was based on the

unsupported findings that we reversed, i.e., Sandra’s future income and her ability to

become self-sufficient in 7.5 years or 90 months. Thus, the trial court did not err or

exceed the scope of the remand order in changing the amount and the term of its

spousal support award. Theodore’s fourth assigned error lacks merit.

{¶54} His fifth and final assigned error challenges the trial court’s added security

measures to ensure his future property division payments to Sandra as excessive. As

security, the trial court ordered him to pledge his shares of Dreison International;

maintain an insurance policy with Sandra as the sole beneficiary; pay Sandra a lump

sum on the sale of all or a substantial amount of his Dreison stock; and provide her with

copies of Dreison’s annual tax returns until the property division payments are paid in

full.

{¶55} Theodore first claims the pledge of his stock shares to Sandra is

impossible because his shares are already pledged. He also claims the parties agreed

12 on remand that it is impossible for him to pledge stock that is already pledged to his

primary business lender, and as such, the trial court abused its discretion in ordering the

pledge. We agree.

{¶56} In our prior opinion, we held that the trial court failed to provide adequate

security for Sandra’s property division, to be paid during a twelve-year period. We

explained:

{¶57} “Wife argues that the trial court erred in failing to provide sufficient security

for the funds being used to equalize the property division. Specifically, Wife argues that

the trial court should have required Husband to maintain a life insurance policy as

security for the funds. Wife acknowledges that the magistrate ordered a stock pledge

as security for the payments, but claims that ‘the Magistrate’s findings concerning

various loan covenants that exist with Appellee's business lender, which restrict certain

of Appellee's actions in the operation of Dreison, strongly suggest that appellee’s shares

of stock have already been pledged to the lender as collateral.’ Wife claims that the

stock pledge is insufficient collateral given the stock's suspected status as collateral for

other loans.

{¶58} “A trial court is required to equitably divide the parties’ marital property,

and it is afforded wide discretion in fashioning its division. * * * As Wife contends, a trial

court has discretion to secure a property division by ordering a spouse to maintain a life

insurance policy for the other spouse’s benefit. * * *

{¶59} “In Budd v. Munka, 9th Dist. Summit No. 27051,

,

, ¶17, the Ninth District Court of Appeals held that the trial court abused its

discretion in fashioning an award that was inequitable because it failed, in part, to order

13 the husband to provide security for the marital property award that was to be paid over

the course of ten years.

{¶60} “Here, the trial court ordered Husband to make payments totaling

approximately $1.9 million as Wife’s portion of the property settlement. This sum was to

be paid over 12 years with the pledge of Dreison stock as her only security. While the

magistrate properly recognized the need to provide Wife with security, the court did not

take evidence on the adequacy of the stock pledge as security. However, there was

testimony that Dreison has significant debt. Although there is no evidence that the

stock has been pledged to a bank, it would not be unusual if it has been previously

pledged in light of the company’s substantial debt. Even if the stock is not pledged,

there is a significant concern whether it, standing alone, provides adequate security

since there are no limitations on Husband's ability to encumber Dreison with additional

debt that could render the stock worthless. Thus, this argument has merit because

there is nothing establishing that the security ordered is adequate.” Berger v.

.

{¶61} We remanded the case for the trial court to address the adequacy of the

security anew providing the trial court with a blank slate on remand, holding only that

the pledge of stock alone was insufficient to ensure Sandra’s future payments.

{¶62} Notwithstanding the fact that we highlighted this issue, neither party

presented evidence as to whether Theodore’s stock was capable of being pledged more

than once. Instead, during the hearing on remand, Theodore’s attorney argued that the

stock could not be pledged because a subsequent pledge would trigger covenants

resulting in negative consequences for Theodore’s commercial loan. His counsel

proffered that “Mr. Berger would have testified today to the fact that there is no stock

14 pledge [to Sandra at this point]. There can’t be * * * because * * * the stock can’t be

pledged because it will trip covenants * * *.”

{¶63} Thereafter, and as Theodore contends, Sandra’s attorney agrees that the

stock cannot be pledged, stating that Theodore could not give a stock pledge because

there are cross-collateralizations. Thus, no evidence was taken on this issue.

{¶64} Despite Sandra’s counsel’s concession, the trial court asked the parties to

brief the issue in their closing arguments. Neither side “argued” this point in their written

closing arguments. Instead, husband’s closing states that the parties agreed that the

stock could not be pledged to Sandra because it was already pledged to the company’s

creditors. And Sandra’s written closing does not address the issue, but inconsistent

with her attorney’s statement at the hearing, reverted back to the request that the stock

be pledged as security.

{¶65} “The arguments or statements of counsel may be considered judicial

admissions in certain instances. Hake v. George Wiedemann Brewing Co. (1970),

,

,

. However, in order to constitute a

judicial admission, counsel's statements ‘must be distinct and unequivocal, and be, by

intention, an act of waiver relating to the opponent's proof of fact, and not merely a

statement of assertion or concession, made for some independent purpose.’ Shepler v.

Love (Sept. 14, 2001), 6th Dist. No. H–00–022, 3,

, citing Carl &

Gene Towing Serv., Inc. v. Shortway Lines (Mar. 26, 1982), 6th Dist. No. L–81–265, 2,

.

{¶66} “For example, the Ohio Supreme Court held that ‘defendant's counsel's

assertion in opening statement that the evidence would disclose that an empty beer keg

accidentally slipped from hands of defendant's employee, constituted a judicial

15 admission sufficient to establish exclusive management and control on part of

defendant at time of injury.’ Courtyard on Coventry v. Giambrone Masonry, Inc., (Mar.

9, 2000), 8th Dist. No. 75271, 6,

, citing Hake,

,

,

.” Scatamacchio v. W. Res. Care Sys.,

,

,

.

{¶67} “A judicial admission is a ‘formal statement, made by a party or a party’s

counsel in a judicial proceeding, that act[s] as a substitute for legal evidence at trial.’

Haney v. Law, 1st Dist. Hamilton No. C070313,

,

,

¶7. If a party ‘unequivocally concedes a fact, that concession constitutes a judicial

admission for the purposes of trial.’ Id.” Williams v. Williams, 12th Dist. Warren No.

CA2012-08-074,

,

, ¶12.

{¶68} We agree with Theodore that Sandra’s attorney agreed that this stock

should not be pledged to her because it was already pledged as security for business

purposes. In light of her statement, Theodore’s attorney did not present evidence on

this issue. Sandra’s statement to the contrary in her written closing argument is of no

consequence because her agreement on this issue constitutes a judicial admission,

which eliminated the need and opportunity for Theodore to present evidence as to

whether the stock was capable of being pledged to Sandra.

{¶69} Accordingly, the trial court abused its discretion in ordering the stock to be

pledged to Sandra contrary to her counsel’s judicial admission. Thus, we modify the

trial court’s decision and remove the stock pledge requirement.

{¶70} Theodore also argues he should not be required to provide his annual

corporate tax returns to Sandra until the property division payments are paid in full

because this does not provide added security, and instead, constitutes an invasion of

16 his privacy and is unduly burdensome. Sandra disagrees and asserts that the

requirement of providing the corporate tax records allows her to monitor corporate

activity to ensure that the asset is not being depleted or jeopardized. We agree and find

no abuse of discretion. We see little to no burden via the added security measure of

requiring Theodore to produce Dreison’s annual corporate tax returns to Sandra until

the property division is satisfied.

{¶71} Accordingly, this argument lacks merit.

{¶72} The trial court’s decision is modified and affirmed as modified.

CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON, J.,

concur.

17