[Cite as Constance v. Constance,
2015-Ohio-3244.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOHN D. CONSTANCE : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 14CA0009
:
LYDIA L. CONSTANCE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of
Common Pleas, Domestic Relations
Division, Case No. 2006DR00238
JUDGMENT: AFFIRMED IN PART; REVERSED IN
PART AND REMANDED
DATE OF JUDGMENT ENTRY: August 11, 2015
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
No Appearance BRENT L. ENGLISH
The 820 Building
820 Superior Ave. West, 9th Floor
Cleveland, OH 44113-1818
Morrow County, Case No. 14CA0009 2
Delaney, J.
{¶1} Defendant-Appellant Lydia L. Constance appeals the July 28, 2014
judgment entry of the Morrow County Court of Common Pleas, Domestic Relations
Division.
FACTS AND PROCEDURAL HISTORY
{¶2} Plaintiff-Appellee John L. Constance ("Husband") and Defendant-
Appellant Lydia L. Constance ("Wife") entered into an antenuptial agreement on June
19, 1996. Relevant to this appeal, the antenuptial agreement stated in pertinent part:
(3) All assets and property held by the parties at the time of the marriage
shall continue to be separately held. All gifts, bequests, or devises to
either party individually during the course of the marriage shall also be
separately held by such party, subject to the control and management of
such party as if no marriage had been entered into.
Separate property shall include any increase in value during the marriage
(from whatever source derived) to property held by each party prior to the
marriage and gifts, bequests, and devises received by either party
individually during the marriage.
…
(5) The parties have made full disclosure to each other of all properties
and assets (including expectancies) presently owned by each of them and
of the income derived therefrom and from all other sources and agree that
each party shall have sole management, control, and disposition of the
Morrow County, Case No. 14CA0009 3
property so owned as described in Exhibits A and B which are thereby
made a part of this contract.
Exhibit A of the antenuptial agreement listed Wife's premarital assets. Wife stated she
had $5,000.00 interest in real estate located at 9296 Troy Township Road, Lexington,
Ohio. Wife also listed her retirement fund through the State Employees Retirement
System valued as $11,558.00 as of June 1996. Exhibit B of the antenuptial agreement
listed Husband's premarital assets. He stated he had $39,000.00 interest in 9296 Troy
Township Road, Lexington, Ohio.
{¶3} Husband and Wife were married on June 22, 1996. Two children were
born as issue of the marriage: J.C.C., born October 18, 1998 and E.L.C., born May 30,
2000.
{¶4} Husband and Wife separated on February 7, 2006.
{¶5} Husband filed a complaint for divorce on June 12, 2006. In the complaint,
Husband requested "the Court grant the enforcement of the parties Pre-nuptial
Agreement dated June 19, 1996." Wife filed an Answer and Counterclaim on August 10,
2006. In paragraph 5 of Wife's affirmative defenses, she stated the alleged antenuptial
agreement was not enforceable.
{¶6} The trial court appointed a Guardian ad Litem for the children.
{¶7} On March 24, 2010, a visiting judge was assigned to hear the matter. The
case came on for a final hearing in June 2010. The trial court stated on the record that it
had conducted an in camera interview with the children.
Morrow County, Case No. 14CA0009 4
{¶8} After the trial, the parties filed proposed findings of fact and conclusions of
law. Wife submitted a child support calculation worksheet as part of Wife's proposed
findings of fact and conclusions of law.
{¶9} On October 20, 2010, the trial court issued a judgment entry with findings
of fact and conclusions of law. Husband was ordered to prepare a final judgment and
decree of divorce. On July 28, 2014, the trial court issued the final judgment and decree
of divorce.
{¶10} It is from this judgment Wife now appeals.
{¶11} Husband did not file a responsive appellate brief. Pursuant to App.R.
18(C), "[i]f an appellee fails to file the appellee's brief within the time provided by this
rule, or within the time as extended, the appellee will not be heard at oral argument
except by permission of the court upon a showing of good cause submitted in writing
prior to argument; and in determining the appeal, the court may accept the appellant's
statement of the facts and issues as correct and reverse the judgment if appellant's brief
reasonably appears to sustain such action."
ASSIGNMENTS OF ERROR
{¶12} Wife raises 13 Assignments of Error:
{¶13} "I. THE TRIAL COURT ERRED IN ENFORCING THE ANTENUPTIAL
AGREEMENT BECAUSE IT WAS COERCIVELY OBTAINED AND WAS THE RESULT
OF JOHN'S OVERREACHING.
{¶14} "II. LYDIA DID NOT WAIVE HER DEFENSES TO THE
ENFORCEABILITY OF THE ANTENUPTIAL AGREEMENT.
Morrow County, Case No. 14CA0009 5
{¶15} "III. THE TRIAL COURT ERRED IN FINDING THAT JOHN MADE FULL
DISCLOSURE, OR THAT LYDIA HAD FULL KNOWLEDGE AND UNDERSTANDING
OF THE NATURE, VALUE AND EXTENT OF JOHN'S PROPERTY.
{¶16} "IV. THE TERMS OF THE ANTENUPTIAL AGREEMENT ENCOURAGED
PROFITEERING BY DIVORCE.
{¶17} "V. THE ANTENUPTIAL AGREEMENT CONTAINS DIRECTLY
CONFLICTING PROVISIONS RENDERING IT UNENFORCEABLE.
{¶18} "VI. ASSUMING THE ANTENUPTIAL AGREEMENT WAS
ENFORCEABLE, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
FAILING TO COMPLY WITH ITS TERMS.
{¶19} "VII. THE TRIAL COURT ERRED IN FINDING THAT LYDIA HAD
'WRONGFULLY CONVERTED' JOHN'S HALF OF THEIR 2005 FEDERAL INCOME
TAX REFUND AND IN REQUIRING HER TO PAY HIM HALF OF THE VALUE OF THE
REFUND BY A DATE CERTAIN.
{¶20} "VIII. THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING
LYDIA TO PAY JOHN FOR ONE-HALF OF THE TIMBER PROCEEDS.
{¶21} "IX. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS DIVISION OF
ASSETS AND BY INCLUDING DEADLINES WHICH EXPIRED YEARS BEFORE THE
JUDGMENT.
{¶22} "X. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
REFUSING TO ORDER A COMPREHENSIVE NEUROPSYCHOLOGICAL
EVALUATION AND BY ORDERING COMPLIANCE WITH A COUNSELOR'S
Morrow County, Case No. 14CA0009 6
RECOMMENDATIONS WITHOUT KNOWING WHAT THOSE RECOMMENDATIONS
WOULD BE.
{¶23} "XI. THE TRIAL COURT ERRED BY FAILING TO RECORD THE IN
CAMERA INTERVIEWS.
{¶24} "XII. THE TRIAL COURT ERRED BY FAILING TO ATTACH A CHILD
SUPPORT WORKSHEET.
{¶25} "XIII. THE TRIAL COURT ERRED BY NOT DETERMINING THE
AMOUNT OF FEES OWED TO THE GUARDIAN AD LITEM, THE
REASONABLENESS AND NECESSITY OF THOSE FEES, AND HOW THEY ARE TO
BE ALLOCATED."
ANALYSIS
Antenuptial Agreement
{¶26} Wife argues in her first, second, third, fourth, and fifth Assignments of
Error that the trial court erred when it found the antenuptial agreement was enforceable.
Wife's arguments focus on the trial court's evaluation of the competing evidence at trial
and, therefore, maintains the trial court's decision was against the manifest weight of the
evidence. We disagree.
{¶27} When the weight of the evidence is challenged in a civil case, the
appellate court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice
that the [judgment] must be reversed and a new trial ordered .” (Alterations in original.)
Vanderbilt v. Vanderbilt, 9th Dist. Medina Nos. 11CA0103-M, 11CA0104-M, 2013-Ohio-
Morrow County, Case No. 14CA0009 7
1222, ¶¶ 5-6 quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179,
972
N.E.2d 517, ¶ 20, quoting Tewarson v. Simon,
141 Ohio App.3d 103, 115 (9th
Dist.2001).
{¶28} The parties in this case had lived together as a couple since 1988.
Husband and Wife were to be married on June 22, 1996. Wife testified that when they
went to apply for their marriage license approximately a week before the wedding,
Husband told her they would need an antenuptial agreement to be married. Wife stated
she and Husband had never before discussed an antenuptial agreement. Wife said
Husband made the appointment with the attorney and provided the attorney with the list
of their assets. On June 19, 1996, Wife signed the agreement without the opportunity to
review the agreement. She testified at the hearing she felt she had no choice but to sign
the agreement because the wedding was to take place in three days.
{¶29} Husband testified at the hearing he had no involvement in contacting the
attorney or providing the attorney information for the antenuptial agreement. Husband
denied paying the attorney. He said the first time he met the attorney was on June 19,
1996 when he signed the antenuptial agreement.
{¶30} The attorney who prepared the antenuptial agreement testified at trial and
stated she did not recall meeting with the parties. She did provide the parties' work file,
which had Wife's name on the work file. The attorney stated that per her office
procedures, her office places the client's name on the work file.
{¶31} In Ohio, public policy allows for the enforcement of antenuptial
agreements. Burdick v. Burdick, 11th Dist. Ashtabula No. 2013-A-0030, 2014-Ohio-
Morrow County, Case No. 14CA0009 8
2876, ¶ 21 citing Gross v. Gross, 11 Ohio St.3d 99,
464 N.E.2d 500 (1984), paragraph
one of the syllabus. In Gross, the Court stated:
Such agreements are valid and enforceable (1) if they have been entered
into freely without fraud, duress, coercion, or overreaching; (2) if there
was full disclosure, or full knowledge and understanding of the nature,
value and extent of the prospective spouse's property; and (3) if the
terms do not promote or encourage divorce or profiteering by divorce.
Id. at paragraph two of the syllabus. The Ohio Supreme Court defined fraud, duress,
coercion, and overreaching according to their generally accepted meanings.
Id. at 105,
464 N.E.2d 500.
{¶32} The antenuptial agreement in this case does not refer to spousal support.
The antenuptial agreement references only the parties' property. The Supreme Court
stated that as to the trial court's consideration of the division of property in an
antenuptial agreement:
Upon the consideration of provisions relating to the division or allocation of
property at the time of a divorce, the applicable standards must relate
back to the time of the execution of the contract and not to the time of the
divorce. As to these provisions, if it is found that the parties have freely
entered into an antenuptial agreement, fixing the property rights of each, a
court should not substitute its judgment and amend the contract. A perfect
or equal division of the marital property is not required to withstand
scrutiny under this standard.
Gross v. Gross, 11 Ohio St.3d 99, 108-09,
464 N.E.2d 500, 509 (1984).
Morrow County, Case No. 14CA0009 9
{¶33} When application of a prenuptial agreement leads to a distribution
“disproportionately less than the party challenging it would have received under an
equitable distribution,” the party asserting the validity of the agreement must
demonstrate “that the other party entered into it with the benefit of full knowledge or
disclosure of the assets of the proponent.” Vanderbilt v. Vanderbilt, 2013-Ohio-1222, ¶ 7
quoting Fletcher v. Fletcher,
68 Ohio St.3d 464,
628 N.E.2d 1343 (1994), paragraph
one of the syllabus.
{¶34} Wife argues the antenuptial agreement is unenforceable for the three
reasons stated in Gross. She first states that she entered the agreement under duress
due to the impending wedding. She next argues Husband did not disclose to her the
extent of his property. Finally, she contends that if the agreement is enforced as written,
Husband will profit from the divorce.
{¶35} The trial court held in the July 28, 2014 final decree of divorce that Wife
failed to show the antenuptial agreement was overreaching or obtained through fraud or
duress. The trial court further found in its judgment that Wife failed to plead these issues
or amend her answer to include these elements and therefore her arguments were
waived. We find that considering the procedural history of this case, Husband was
notified of Wife's position as to the enforceability of the antenuptial agreement. Wife
repeatedly brought her arguments as to the enforceability of the antenuptial agreement
before the trial court. We therefore consider Wife's arguments as to the enforceability of
the antenuptial agreement. Upon our review of the competing evidence at trial, we find
the trial court's decision that the antenuptial agreement is enforceable was supported by
competent and credible evidence.
Morrow County, Case No. 14CA0009 10
{¶36} Wife's first, second, third, fourth, and fifth Assignments of Error are
overruled.
Wife's State Employees Retirement Fund
{¶37} Wife argues in her sixth Assignment of Error that the trial court erred when
it found the antenuptial agreement was enforceable but divided Wife's State Employees
Retirement Fund between Husband and Wife. We agree.
{¶38} The antenuptial agreement stated:
(3) All assets and property held by the parties at the time of the marriage
shall continue to be separately held. All gifts, bequests, or devises to
either party individually during the course of the marriage shall also be
separately held by such party, subject to the control and management of
such party as if no marriage had been entered into.
Separate property shall include any increase in value during the marriage
(from whatever source derived) to property held by each party prior to the
marriage and gifts, bequests, and devises received by either party
individually during the marriage.
…
(5) The parties have made full disclosure to each other of all properties
and assets (including expectancies) presently owned by each of them and
of the income derived therefrom and from all other sources and agree that
each party shall have sole management, control, and disposition of the
property so owned as described in Exhibits A and B which are thereby
made a part of this contract.
Morrow County, Case No. 14CA0009 11
The antenuptial agreement listed Wife's State retirement fund through the State
Employees Retirement System valued as $11,558.00 as of June 1996 as Wife's
separate property.
{¶39} In the July 28, 2014 final decree, the trial court determined Wife had a
pension with SERS that the court found to be marital property subject to an equitable
division. Pursuant to the terms of the antenuptial agreement, Wife's State Employee
Retirement Fund is separate property and not subject to division.
{¶40} Wife's sixth Assignment of Error is sustained.
2005 Income Tax Refund
{¶41} In her seventh Assignment of Error, Wife contends the trial court erred in
determining that Wife owed Husband one-half of the 2005 income tax refund. We
disagree.
{¶42} Wife filed a joint income tax return for Husband and Wife for the 2005 tax
year. Wife and Husband were entitled to a refund in the amount of $5,253.00. Wife
received the refund and deposited the amount into her personal savings account.
{¶43} At trial, Husband argued he was entitled to one-half of the 2005 income
tax refund. Wife argued she utilized the funds to pay for living expenses for herself and
the children. Husband and Wife separated on February 7, 2006. In February 2006,
Husband stopped contributing for payment of the mortgage, taxes, insurance, and other
household expenses. The trial court ordered Husband to pay child support beginning
May 11, 2007.
{¶44} In the final decree, the trial court ordered Wife to pay Husband one-half of
the 2005 income tax refund in the amount of $2,626.00.
Morrow County, Case No. 14CA0009 12
{¶45} R.C. 3105.171(B) requires equitable distribution of marital and separate
property. The trial court is vested with broad discretion in determining the appropriate
scope of these property awards. Although its discretion is not unlimited, it has authority
to do what is equitable. Holcomb v. Holcomb, 44 Ohio St.3d 128,
541 N.E.2d 597
(1989). A trial court's decision allocating marital property and debt will not be reversed
absent an abuse of discretion.
Id. An abuse of discretion is more than a mere error; it
implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983). An unequal
division does not in and of itself constitute an abuse of discretion. Kaechele v.
Kaechele,
35 Ohio St.3d 93,
518 N.E.2d 1197 (1988). Further, a judgment supported by
some competent, credible evidence will not be reversed by a reviewing court as against
the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co.,
54 Ohio St.2d
279, 280,
376 N.E.2d 578 (1978).
{¶46} Husband and Wife did not separate until February 7, 2006. The income
tax refund was for the 2005 tax year. While the evidence showed that Wife earned more
money than Husband, Husband did contribute a small percentage of the parties' joint
gross income. The trial court did not abuse its discretion in finding the 2005 income tax
refund was a marital asset to be divided equitably.
{¶47} Wife's seventh Assignment of Error is overruled.
Timber Sale Proceeds
{¶48} Wife argues in her eighth Assignment of Error that the trial court abused
its discretion when it ordered Wife to pay Husband one-half of the proceeds she
received from selling timber from the marital property. We disagree.
Morrow County, Case No. 14CA0009 13
{¶49} In October 2006, Wife sold timber from the marital property for $4,165.10.
A restraining order was issued by the trial court on January 8, 2007. Husband argued at
trial he was entitled to one-half of the proceeds of the timber sale in the amount of
$2,082.00. In the final decree, the trial court ordered Wife to pay Husband $2,082.00.
{¶50} R.C. 3105.171(B) requires equitable distribution of marital and separate
property. The trial court is vested with broad discretion in determining the appropriate
scope of these property awards. Although its discretion is not unlimited, it has authority
to do what is equitable. Holcomb v. Holcomb, 44 Ohio St.3d 128,
541 N.E.2d 597
(1989). A trial court's decision allocating marital property and debt will not be reversed
absent an abuse of discretion.
Id. An abuse of discretion is more than a mere error; it
implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983). An unequal
division does not in and of itself constitute an abuse of discretion. Kaechele v.
Kaechele,
35 Ohio St.3d 93,
518 N.E.2d 1197 (1988). Further, a judgment supported by
some competent, credible evidence will not be reversed by a reviewing court as against
the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co.,
54 Ohio St.2d
279, 280,
376 N.E.2d 578 (1978).
{¶51} Wife argues the trial court abused its discretion when it ordered her to pay
Husband one-half of the timber sale proceeds. Upon our review of the record, we find
no abuse of discretion for the trial court to determine the timber located on the property
of the marital home was marital property to be divided equitably.
{¶52} Wife's eighth Assignment of Error is overruled.
Morrow County, Case No. 14CA0009 14
Division of Assets and Expired Deadlines
{¶53} Wife argues in her ninth Assignment of Error that the trial court erred in its
division of assets and in the deadlines the trial court established for the payment of such
assets by Wife to Husband.
{¶54} Wife first argues the trial court's calculations in the final decree were
incorrect. Upon our review, we find a mathematical error as to the value of the motor
vehicles. The trial court awarded Husband four motor vehicles, but only three motor
vehicles had value. The final decree set the value of the vehicles as being $2,725.00,
$1,750.00, and $1,840.00. We find the value of the motor vehicles as determined by the
trial court is supported by competent and credible evidence. The trial court, however,
incorrectly calculated the total amount of the vehicles as $6,135.00 to be awarded to
Husband. The correct value is $6,315.00. The trial court then ordered Husband to pay
Wife $1,417.00 as the difference between the motor vehicles awarded to Husband
minus the 2005 tax refund and the timber proceeds Wife was to pay Husband. The
correct figure should be $1,607.00.
{¶55} In another part of the final decree, however, the trial court orders Wife to
pay Husband $2,082 by December 1, 2010, which represented the share of the
proceeds from the timber sale. We will consider the deadline of December 1, 2010 as to
the payment for the timber sale to be a typographical error.
{¶56} At trial, the visiting judge described the present case as one that
languished. The complaint was filed in 2006. The trial was held in 2010. The final
decree was filed in 2014. The trial court set deadlines for payment by Wife to Husband
for 2010 and 2011, but the final decree was not filed until 2014. From the record, we are
Morrow County, Case No. 14CA0009 15
unaware if Wife met these deadlines; but as the final decree was not issued until July
28, 2014, we find these deadlines to be moot.
{¶57} We reverse the July 28, 2014 final decree and remand the matter to the
trial court to review and correct the math calculations and to establish new deadlines
that correspond with the date of the final entry.
{¶58} Wife's ninth Assignment of Error is sustained.
Counseling for the Children
{¶59} In Wife's tenth Assignment of Error, Wife argues the trial court erred and
abused its discretion when it ordered the children attend reunification counseling.
{¶60} This Court has reviewed the entire record in this case. On December 18,
2014, the trial court issued a judgment entry withdrawing its order for counseling for the
children.
{¶61} We find Wife's tenth Assignment of Error is moot pursuant to the
December 18, 2014 judgment entry and we overrule the same.
Record of the In Camera Interview with the Children
{¶62} Wife contends in her eleventh Assignment of Error that the trial court failed
to record the in camera interviews with the children, which is a reversible error.
{¶63} On June 14, 2010, Wife filed a motion for an in camera interview with the
children to be recorded. The trial court stated that it conducted an in camera interview
with the children in the presence of the Guardian ad Litem. A search of the record in this
case finds no evidence that the in camera interview was recorded.
{¶64} Wife argues on appeal that the record of the in camera interview is
relevant because the trial court ordered the children to attend reunification counseling.
Morrow County, Case No. 14CA0009 16
This Court has found in the record, however, that on December 18, 2014, the trial court
issued a judgment entry withdrawing its order for counseling for the children.
{¶65} We find that in light of the December 18, 2014 judgment entry resolving
the issue of reunification counseling for the children, Wife was not prejudiced by the trial
court's failure to record the in camera interview. In re L.L., 3rd Dist. Logan Nos. 8-14-25,
8-14-26, 8-14-27, 2015-Ohio-2739, ¶ 52.
{¶66} Wife's eleventh Assignment of Error is overruled.
Child Support Computation Worksheet
{¶67} Wife argues in the twelfth Assignment of Error that the trial court erred in
failing to attach a child support worksheet to the final decree.
{¶68} On August 17, 2010, Wife submitted proposed findings of facts and
conclusions of law. Wife attached as an exhibit a proposed child support calculation
worksheet. Based on Wife's proposed child support calculation worksheet, Father was
to pay $365.67 in child support.
{¶69} The July 28, 2014 final decree ordered Husband to pay child support in
the amount of $365.67. The trial court failed to attach a child support worksheet to the
final decree.
{¶70} In Obar v. Obar, 5th Dist. Ashland No. 10-COA-016, 2011-Ohio-1019, this
Court held the trial court's failure to adopt, refer to, or to attach a completed child
support calculation worksheet was reversible error. A review of the July 28, 2014 final
decree shows the trial court did not adopt, refer to, or attach a completed child support
calculation worksheet to the final decree. Such failure constitutes reversible error.
{¶71} Wife's twelfth Assignment of Error is sustained.
Morrow County, Case No. 14CA0009 17
Guardian ad Litem Fees
{¶72} In the July 28, 2014 final decree, the trial court stated each party would be
responsible for any fees owed to the Guardian ad Litem. Wife assigns this as error,
arguing the GAL did not move for fees to be assessed to the parties and the trial court
never determined the amount of fees.
{¶73} A trial court's appointment of a GAL and award of fees must be upheld
absent an abuse of discretion. Gabriel v. Gabriel, 6th Dist. Lucas No. L–08–1303,
2009–Ohio–1814, ¶ 15. In the final decree, the trial court ordered the parties to pay the
GAL fees. We do not find this general order to be an abuse of discretion. If the GAL files
a motion for the assessment of fees, the matter can be addressed by the trial court at
that time.
{¶74} Wife's thirteenth Assignment of Error is overruled.
Morrow County, Case No. 14CA0009 18
Morrow County, Case No. 14CA0009 19
CONCLUSION
{¶75} The July 28, 2014 judgment entry of the Morrow County Court of Common
Pleas, Domestic Relations Division is affirmed in part, reversed in part and remanded
for further proceedings consistent with this opinion and law.
By: Delaney, J.,
Hoffman, P.J. and
Wise, J., concur.
