[Cite as Miller v. Miller,
2024-Ohio-821.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Myla Renee Miller, :
Plaintiff-Appellee, :
No. 23AP-319
v. : (C.P.C. No. 16DR-1690)
Craig Miller, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 7, 2024
On brief: Myla Renee Miller, pro se. Argued: Myla Renee
Miller.
On brief: The Behal Law Group LLC, Robert J. Behal, and
DeAnna J. Duvall, for appellant. Argued: Robert J. Behal.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
LELAND, J.
{¶ 1} Defendant-appellant, Craig Miller, appeals from an amended judgment entry
- decree of divorce (“Amended Decree”) issued by the Franklin County Court of Common
Pleas, Division of Domestic Relations, following a remand from this court in Miller v.
Miller, 10th Dist. No. 18AP-877, 2021-Ohio-4573. For the reasons that follow, we reverse.
I. Facts and Procedural History
{¶ 2} Appellant and plaintiff-appellee, Myla Renee Miller, were married June 15,
2004. Two children were born as issue of the marriage: M.M. on March 23, 2006 and A.M.
on July 5, 2007. Appellant became an optometrist in 2004 and opened his optometry
practice, Eye Columbus, L.L.C. (“Eye Columbus”), in 2010. Appellant was the sole owner
of Eye Columbus. At the time of trial, appellee administered clinical trial contracts for
No. 23AP-319 2
Parexel International, L.L.C. Appellee filed a complaint for divorce on April 26, 2016, and
appellant filed an answer and counterclaim for divorce on May 18, 2016. Following a fiveday trial in February and March 2018, the trial court issued its original decree of divorce
(“Original Decree”) on October 19, 2018.
{¶ 3} During the 2018 trial, the parties presented the court with expert testimony
regarding the marital value of Eye Columbus. Appellee’s expert, Courtney Sparks White,
found the marital value of Eye Columbus to be $960,000. Appellant’s expert, Bradford S.
Eldridge, found the marital value of Eye Columbus to be $220,000. Appellant also
presented expert testimony from Alan H. Cleinman, but the court was unable to qualify
Cleinman as an expert witness. The parties stipulated that June 30, 2016 would be the de
facto marriage termination date for purposes of determining “the marital property and
debts of the parties, the valuation of the assets of the parties; and the equitable division of
the marital estate.” (Original Decree at 2, fn. 1.)
{¶ 4} In the Original Decree, the trial court found “both parties’ financial valuations
of Eye Columbus, LLC [] flawed in certain respects,” but the court found appellant’s
“proffered valuation (i.e., $222,000) [to be] more flawed than [appellee’s] (i.e.,
$960,000).” (Emphasis sic.) (Original Decree at 10.) The court adopted Sparks White’s
valuation, assigned $960,000 as the marital value of Eye Columbus, and allocated the
parties’ martial assets and liabilities. The court also relied on Sparks White’s testimony to
conclude that appellant’s average income from 2015 to 2017 was $297,485. The court
ordered appellant to pay child support in the amount of $1,140.51 per month and to pay
non-modifiable spousal support in the amount of $5,500.00 per month for 48 months.
{¶ 5} Appellant appealed the Original Decree to this court, asserting the trial court
inequitably divided the marital property, improperly imputed income to him, and erred by
granting appellee spousal support. Appellant argued the trial court erred by relying on
Sparks White’s valuation of Eye Columbus because she “improperly disregarded (‘backed
out’) $658,460 in discounts accorded to insurance payors as reflected in the company
bookkeeping for 2016.” Miller at ¶ 4. While Eye Columbus recorded discounts and
adjustments of $0, $46,000, and $0 from 2013 to 2015, respectively, in the first half of
2016 the company recorded $658,460 in discounts. Id. at ¶ 6. Sparks White added the
No. 23AP-319 3
$658,460 in discounts back into Eye Columbus’s revenue which she then annualized for
2016. Id. During the 2018 trial, Sparks White acknowledged that Eye Columbus’s recorded
discounts for 2016 were “immensely out of line with any prior numbers,” and admitted that
she did not inquire as to why that was the case. (Feb. 28, 2018 Tr. Vol. I at 124.)
{¶ 6} In Miller, rendered December 28, 2021, this court determined that both with
respect to the trial court’s valuation of Eye Columbus and its assessment of appellant’s
income, the trial court “based its determinations not on a discrete block by block evaluation
of the evidence, but on a global evaluation of which of the parties’ competing experts was
the more credible.” Id. at ¶ 12. Although the trial court labeled Sparks White’s valuation as
flawed in certain respects, the court did not attempt to “explain what flaws it saw in Ms.
Sparks-White’s analysis” or “provide a sense as to the overall magnitude of the flaws it
identified.” (Emphasis sic.) Id. at ¶ 14. As such, we found the trial court needed to “evaluate
whether those unspecified flaws counseled reexamination or revision of any of the expert’s
bottom line numbers.” Id. at ¶ 14. We reversed and remanded for the trial court to “assess
the evidence and formulate its views more precisely on what the proper allocation and
appropriate and reasonable support results should be.” Id. at ¶ 16.
{¶ 7} On March 16, 2022, the trial court held a hearing and informed the parties
that Miller obligated the court to “get either different or supplemental or expanded expert
testimony.” (Mar. 16, 2022 Tr. at 6.) The court stated it would give the parties ten days to
decide whether they could “pick a joint expert or whether [they would] retool [their]
existing experts.” (Mar. 16, 2022 Tr. at 17.) On April 14, 2022, the court issued a case
management order setting the case for a June 14, 2022 evidentiary hearing. The order
stated the hearing would be “the parties’ final opportunity to be present and provide
testimony and evidence, e.g., documents and witnesses, for the Court’s consideration in
rendering its final disposition of the parties’ assets, debts and liabilities (both separate and
marital) and spousal support.” (Emphasis sic.) (Apr. 14, 2022 Order at 1.)
{¶ 8} On June 10, 2022, appellant filed a motion in limine asking the court to
exclude any evidence regarding the value of Eye Columbus after the June 30, 2016 de facto
termination date. Appellant asserted that, because the valuation of Eye Columbus was
“frozen in time as of the de facto date of termination,” the court could not consider any
No. 23AP-319 4
evidence regarding the sale of Eye Columbus in 2019. (Mot. in Limine at 1.) The court did
not rule on the motion in limine.
{¶ 9} Appellant presented the expert report and testimony of Rebekah Smith at the
June 14, 2022 evidentiary hearing. The court qualified Smith as an expert in the area of
business valuation. Appellee appeared at the hearing pro se, and informed the court that
she would rely on Sparks White’s unaltered expert report from the original trial. When
appellee began to address the 2019 sale of Eye Columbus, appellant’s counsel objected,
arguing that the court could not consider the 2019 sale because it occurred after the de facto
termination date. The court stated it would allow appellee to “put on whatever [evidence]
she wants to put on,” and that the court would give the evidence “the weight that [it]
deem[ed] appropriate.” (June 14, 2022 Tr. at 10.) Appellant’s counsel made a standing
objection “to any evidence that relates to what the businesses did or didn’t do from
June 30th, 2016, forward through today.” (June 14, 2022 Tr. at 11.) The court
acknowledged appellant’s standing objection and explained that, although the de facto
termination date applied to the valuation of the business, it did “not apply to [appellant’s]
income for support purposes.” (June 14, 2022 Tr. at 98.)
{¶ 10} Smith testified she found the marital value of Eye Columbus to be $300,000.
Smith addressed the $658,460 in discounts the company recorded in 2016 and stated that
the seemingly significant increase in recorded discounts was “really just a presentation
issue.” (June 14, 2022 Tr. at 58.) Smith explained that, in 2016, Eye Columbus changed
their accounting records “from being presented on a net basis to being presented on a gross
basis with a discount showing separately.” (June 14, 2022 Tr. at 59.) As such, Smith opined
that Sparks White “overstated or inflated” Eye Columbus’s 2016 performance by including
the $658,460 in discounts in the company’s revenue for 2016. (June 14, 2022 Tr. at 60.)
At the conclusion of the hearing, appellant’s counsel asked the court to consider retaining
jurisdiction to modify the spousal support award.
{¶ 11} On June 22, 2022, appellant filed a motion to supplement the record with
evidence regarding the parties’ incomes from June 30, 2016 to June 14, 2022. The court
granted the motion and instructed the parties to supplement the record with their complete
No. 23AP-319 5
state and federal income tax returns from June 30, 2016 through June 14, 2022. The court
held an evidentiary hearing on December 16, 2022 to address the income evidence.
{¶ 12} On May 2, 2023, the court issued its Amended Decree. The court initially
stated that appellant “lodge[d] a continuing objection to the admission of any new evidence
being considered for the purposes of addressing the remand from the Court of Appeals,”
and that the court “sustain[ed] that objection.” (Amended Decree at 2.) As such, the court
would not consider “the report, or the testimony of Rebekah A. Smith as presented June 14,
2022,” appellee’s evidence regarding the sale of Eye Columbus in 2019, or any evidence
regarding appellant’s income after 2017. (Amended Decree at 2.)
{¶ 13} The court stated the flaws it perceived in Sparks White’s expert report were
“minimal.” (Amended Decree at 2.) The court explained that Sparks White “made an
erroneous math calculation” when she included the $658,460 discount adjustment in Eye
Columbus’s 2016 revenue, because the discount adjustment was “unnecessary.” (Footnote
omitted.) (Amended Decree at 4-5.) The court further noted that, during the original 2018
trial, Sparks White testified regarding an alternative valuation she conducted which
excluded the 2016 discount adjustment. Sparks White had testified that, if she excluded
the $658,460 discount adjustment and “play[ed] around” with some other assumptions
resulting from that change, she believed the value of Eye Columbus as of June 30, 2016
would be $875,000. (Feb. 28, 2018 Tr. at 149, 154.) In the Amended Decree, the trial court
determined that “Sparks White’s value of $875,000, which excludes the questionable 2016
income adjustment, [was] a competent, credible and reliable value for Eye Columbus LLC.”
(Emphasis sic.) (Amended Decree at 5.) As such, the court assigned $875,000 as the
marital value of Eye Columbus and re-allocated the marital assets and liabilities
accordingly.
{¶ 14} Regarding appellant’s income, the court explained that because the parties’
“actual income figures” were “firmly established and known to the Court,” the expert
opinions regarding appellant’s income had become “moot and irrelevant.” (Amended
Decree at 8.) The court stated that the parties’ actual income figures, “as glean[ed] from
income tax returns and/or supporting tax documentation,” yielded an average income from
2015 to 2017 of $285,039 for appellant and $103,030 for appellee. (Amended Decree at 9.)
No. 23AP-319 6
The court ordered appellant to pay child support in the amount of $1,028.98 per month
and $5,500 per month in spousal support for a period of 48 months. (Amended Decree at
24, 31.) The court stated that it would “not retain jurisdiction to further modify its award
of spousal support in this matter.” (Emphasis sic.) (Amended Decree at 31.)
II. Assignments of Error
{¶ 15} Appellant appeals and assigns the following three assignments of error for
our review:
I. The Trial Court erred to the prejudice of Appellant-Husband
by failing to even consider the testimony and report admitted
into evidence by Appellant-Husband’s expert, Rebekah Smith,
recognized by the Trial Court as a highly qualified and
experienced evidence, which was material and relevant to the
determination of the issue of business valuation and the
income of a party.
II. The Trial Court erred to the prejudice of Appellant-Husband
by utilizing the same expert report and testimony, that the very
same court had labeled as “flawed” in the first trial in the face
of the credible evidence presented of significant mathematical
errors, and which was not rehabilitated in any fashion by
additional or improved testimony during the remand
proceedings, to arrive at an arbitrarily inflated business
valuation and income conclusion, rendering the property
division and support calculations inequitable.
III. The Trial Court erred to the prejudice of Appellant-Husband and abused its discretion in awarding alimony for
extended period and making such support “non-modifiable”
when the business owner/payor’s income was subject to the
common vicissitudes of business and potential limitations of
income including his physical and mental ability to render
services which could be affected at any time by injury, disease,
or governmental action.
III. First and Second Assignments of Error – Consideration of Evidence
{¶ 16} Appellant’s first assignment of error asserts the trial court erred by failing to
consider the testimony and report of Smith. Appellant’s second assignment of error asserts
the trial court erred by relying on Sparks White’s testimony to determine the marital value
of Eye Columbus.
No. 23AP-319 7
{¶ 17} In a divorce proceeding, a trial court has broad discretion to determine the
value of marital property and to make divisions of property. Beagle v. Beagle, 10th Dist.
No. 09AP-353, 2009-Ohio-6570, ¶ 11; Middendorf v. Middendorf,
82 Ohio St.3d 397, 401
(1998). The court’s decision on these matters will not be reversed absent an abuse of
discretion.
Beagle at ¶ 11;
Middendorf at 401. An abuse of discretion implies that the
court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5
Ohio St.3d 217, 219 (1983). See Huffman v. Hair Surgeon, Inc.,
19 Ohio St.3d 83, 87 (1985).
{¶ 18} “A trial court’s assignment of an asset’s value must be based upon competent,
credible evidence,” meaning “evidence that is both competent, credible evidence of value
and a rational basis upon which to establish the value.” Warren v. Warren, 10th Dist. No.
09AP-101, 2009-Ohio-6567, ¶ 15. See also Raymond v. Raymond, 10th Dist. No. 11AP-
363,
2011-Ohio-6173, ¶ 23 (stating that a trial court must have “probative evidence of the
value of marital assets” before it can “assign and consider the values of marital assets”).
When expert testimony is admitted as to property values, the court may believe all, part, or
none of the expert’s testimony.
Beagle at ¶ 12, citing Boyles v. Boyles, 11th Dist. No. 2000-
P-0072 (Oct. 5, 2001). See also Dach v. Homewood, 10th Dist. No. 14AP-502, 2015-Ohio-
4191, ¶ 49, citing Huelskamp v. Huelskamp,
185 Ohio App.3d 611,
2009-Ohio-6864, ¶ 27
(3d Dist.) (stating that “[w]hen parties present substantially different valuations of an asset,
the trial court is free to believe all, part, or none of any witnesses’ testimony”). “The weight
of the evidence and credibility of witnesses are issues left to the sound discretion of the trial
court.” Kramer v. Kramer, 10th Dist. No. 18AP-933,
2019-Ohio-4865, ¶ 28, citing
Galloway v. Khan, 10th Dist. No. 06AP-140,
2006-Ohio-6637, ¶ 29.
{¶ 19} The trial court stated it was sustaining appellant’s continuing objection to
“the admission of any new evidence” on remand, and therefore excluding Smith’s testimony
and report. (Amended Decree at 2.) The decision whether to admit or exclude evidence is
subject to review under an abuse of discretion standard, and absent a clear showing that
the trial court abused its discretion in a manner that materially prejudices a party, an
appellate court will not disturb an evidentiary ruling. Boggs v. The Scotts Co., 10th Dist.
No. 04AP-425, 2005-Ohio-1264, ¶ 35, citing Sidenstricker v. Miller Pavement
No. 23AP-319 8
Maintenance, Inc.,
158 Ohio App.3d 356,
2004-Ohio-4653, ¶ 23 (10th Dist.); Krischbaum
v. Dillon,
58 Ohio St.3d 58, 66 (1991).
{¶ 20} There is nothing in the record to support the court’s statement that appellant
objected to the admission of any new evidence being considered on remand. At the
March 16, 2022 hearing, appellant’s counsel stated that the parties needed to “bring[] in
either new [evidence] or somehow try to revive the experts that have already testified.”
(Mar. 16, 2022 Tr. at 5.) Appellant’s pre-hearing motion in limine and his standing
objection at the June 14, 2022 hearing asked the trial court to exclude evidence concerning
Eye Columbus after the June 30, 2016 de facto termination date. Neither the motion in
limine nor the standing objection sought to preclude the court from considering any new
evidence regarding the marital value of Eye Columbus as of the de facto termination date.
Indeed, it was appellant who presented Smith’s testimony and report at the June 14, 2022
evidentiary hearing, and neither party objected to the evidence. Nowhere in the Amended
Decree did the court provide any further explanation as to why it excluded Smith’s
testimony or report. Accordingly, the trial court abused its discretion by excluding Smith’s
testimony and report.
{¶ 21} “A trial court has a duty to thoroughly review all evidence and exhibits that
were made a part of the record in the case before it prior to entering judgment.” Higgins v.
Buehrer, 1st Dist. No. C-160288, 2016-Ohio-7214, ¶ 6, citing Murphy v. Reynoldsburg,
65
Ohio St.3d 356, 360 (1992) (noting that although Murphy concerned a court’s ruling on a
motion for summary judgment, the rational of Murphy was “equally applicable” to a case
involving a bench trial). A trial court need not comment on each item of evidence
presented, and a reviewing court will generally presume that a trial court has considered all
evidence presented when there is no indication to the contrary. Stanley v. Ohio State Univ.
Med. Ctr., 10th Dist. No. 12AP-999,
2013-Ohio-5140, ¶ 50. See Clark v. Clark, 10th Dist.
No. 97APF10-1360 (Sept. 1, 1998) (noting that “given the presumption of regularity,” the
appellate court would assume that the trial court considered the plaintiff’s testimony and
“reject[ed it] as incredible”).
{¶ 22} After a trial court examines the entire record, “it is well within the province
of the court to find certain evidence credible and other evidence not credible, and to
No. 23AP-319 9
accordingly give greater weight to particular evidence.” Higgins at ¶ 7. However, “the
entire record must be examined before such credibility determinations can be made.”
Id.
A trial court commits reversible error “where it is apparent from the record that the trial
court failed to review [all evidence] before entering judgment.”
Id. at syllabus.
{¶ 23} The record in the present case affirmatively demonstrates the trial court
failed to consider the testimony and report of Smith before determining the marital value
of Eye Columbus. Smith’s valuation opinion was properly before the court and no party
objected to her testimony. Accordingly, because the trial court rendered judgment without
examining all the evidence contained in the record, we must reverse the Amended Decree
and remand for further proceedings.
{¶ 24} To be clear, however, there is no need for the trial court to accept new
evidence regarding the marital value of Eye Columbus on remand. The record contains
ample evidence regarding the value of this business, including the opinions of Sparks White
and Eldridge from the 2018 trial and the opinion of Smith from the 2022 hearing. Upon
remand, a trial court must proceed “from the point at which the error occurred.” State v.
Chinn, 85 Ohio St.3d 548, 565 (1999). See also Nolan v. Nolan,
11 Ohio St.3d 1, 4 (1984)
(holding that a “trial court is without authority to extend or vary the mandate given” by the
appellate court); Flynn v. Flynn, 10th Dist. No. 03AP-612,
2004-Ohio-3881, ¶ 16. Here,
the trial court erred by sustaining an objection which appellant never made and by
rendering judgment without considering all the evidence presented. Accordingly, on
remand, the court must simply consider all the evidence and determine the appropriate
marital value of Eye Columbus based on competent, credible evidence in the record.
Warren,
2009-Ohio-6567, at ¶ 15. We do not preclude the trial court from relying on any
of the expert’s opinions or from reaching any particular conclusion regarding the value of
this marital asset. After considering all the evidence, the trial court remains free to believe
all, part, or none of the expert’s valuation testimony. Beagle,
2009-Ohio-6570, at ¶ 12.
{¶ 25} Based on the foregoing, we sustain appellant’s first assignment of error. Our
disposition of appellant’s first assignment of error renders appellant’s second assignment
of error moot. See App.R. 12(A)(1)(c).
No. 23AP-319 10
IV. Third Assignment of Error - Spousal Support
{¶ 26} Appellant’s third assignment of error asserts the trial court abused its
discretion by failing to retain jurisdiction to modify the spousal support award. Appellant
contends the trial court erred by making the spousal support award non-modifiable,
because factors such as the economy, governmental action, and/or appellant’s own mental
or physical health could affect his business and therefore his income in any given year.
{¶ 27} After the court in a divorce proceeding determines the division of property
under R.C. 3105.171, the court “may award reasonable spousal support to either party.”
R.C. 3105.18(B). “A trial court has broad discretion to determine the appropriate amount
of spousal support based on the particular facts and circumstances of each case.” Poe v.
Poe, 10th Dist. No. 22AP-657, 2023-Ohio-4394, ¶ 9, citing Kunkle v. Kunkle,
51 Ohio St.3d
64, 67 (1990). See R.C. 3105.18(C)(1)(a) through (n).
{¶ 28} R.C. 3105.18(E)(1) provides that a court “does not have jurisdiction to modify
the amount or terms of the alimony or spousal support” unless the divorce decree contains
a “provision specifically authorizing the court to modify the amount or terms of alimony or
spousal support.” Thus, a trial court does not have continuing jurisdiction to modify a
spousal support award unless it “ ‘expressly reserves jurisdiction to modify’ ” in the divorce
decree. Donohue v. Donohue, 10th Dist. No. 87AP-695 (Aug. 2, 1988), quoting Ressler v.
Ressler, 17 Ohio St.3d 17 (1985), syllabus. See Ricketts v. Ricketts,
109 Ohio App.3d 746,
755 (12th Dist.1996) (noting that “[t]he trial court is not required to retain jurisdiction over
a spousal support award”).
{¶ 29} “The decision to retain jurisdiction to modify an award of spousal support is
left to the sound discretion of the trial court.” Kuper v. Halbach, 10th Dist. No. 09AP-899,
2010-Ohio-3020, ¶ 62, citing Deacon v. Deacon, 8th Dist. No. 91609,
2009-Ohio-2491,
¶ 63. “ ‘Although Ohio courts generally agree that a trial court abuses its discretion in failing
to reserve jurisdiction when imposing an indefinite award of spousal support, the same
does not automatically apply when the court imposes a limited time period.’ ”
Id., quoting
Deacon at ¶ 63. To determine whether the trial court abused its discretion by declining to
retain jurisdiction “an appellate court must consider the totality of circumstances and the
specific facts of each case.”
Id., citing Deacon.
No. 23AP-319 11
{¶ 30} “A trial court abuses its discretion in failing to reserve spousal support
jurisdiction where there is a substantial likelihood that the economic conditions of either
or both parties may change significantly within the period of the award.” Id. at ¶ 63, citing
Newman v. Newman, 5th Dist. No. 2003 CA 00105, 2004-Ohio-5363. Accord Stackhouse
v. Stackhouse, 2d Dist. No. 16244 (July 25, 1997); Rigby v. Rigby, 12th Dist. No. CA2020-
07-005,
2021-Ohio-271, ¶ 39. Accordingly, where the evidence demonstrates that the
parties’ incomes “remained relatively stable” in the years prior to the divorce, the trial court
may refuse to reserve jurisdiction to modify a spousal support award of limited duration.
Kuper at ¶ 63. Compare Schalk v. Schalk, 3d Dist. No. 13-07-13,
2008-Ohio-829, ¶ 38-39
(concluding that the trial court did not abuse its discretion by failing to reserve jurisdiction
to modify a six-year spousal support award because the payor/spouse’s “amount of income
remained relatively stable”); Apicella v. Apicella, 7th Dist. No. 97-BA-65 (Nov. 15, 1999)
(finding the trial court did not abuse its discretion by failing to reserve jurisdiction because
there was “no evidence in the record to suggest that the circumstances of either party
[would] change within [the] five year[]” support term); with Smith v. Smith, 6th Dist. No.
L-98-1027 (Dec. 31, 1998) (holding the trial court abused its discretion by failing to reserve
jurisdiction to modify a ten-year term of spousal support because the “vagaries” of
appellant’s construction business could cause him to encounter a “substantial economic
setback”); Nori v. Nori,
58 Ohio App.3d 69, 73 (12th Dist.1989) (concluding the trial court
abused its discretion by failing to retain jurisdiction to modify a ten-year spousal support
award because there were “unforeseen but likely contingencies” which could occur in ten
years).
{¶ 31} Although the trial court refused to retain jurisdiction to modify the spousal
support award in both the Original and Amended Decrees, neither decree contains any
explanation for why the court refused to reserve jurisdiction. In the Amended Decree, the
court found appellant’s income to be $389,341 in 2015, $362,032 in 2016, and $154,472 in
2017. (Amended Decree at 21.) While appellant’s income came solely from Eye Columbus
in 2015 and 2016, the court noted that in 2017 “there were some changes to [appellant’s]
setup.” (Amended Decree at 12.) The evidence demonstrated that in 2017 appellant
acquired two optometry practices in Cleveland, Ohio; he opened The Optical Co., L.L.C., an
No. 23AP-319 12
eyewear boutique in the Short North area of Columbus, Ohio; and he incorporated Twenty
Brands, Inc. “with the purpose of providing services to his various business entities and
thus lowering expenses.” (Amended Decree at 12.) The trial court specifically found that
appellant’s “business fluctuated throughout the years preceding trial.” (Amended Decree
at 18.)
{¶ 32} Despite these findings, the trial court did not indicate whether the
fluctuations in appellant’s business would impact his ability to comply with the four-year
spousal support award. A fluctuation or decline in a payor/spouse’s income will not
necessarily obligate the trial court to reserve jurisdiction to modify a spousal support award,
depending on the other facts and circumstances in the case. See Kuper, 2010-Ohio-3020,
¶ 64 (finding the payor/spouse’s argument that her shareowner distributions had declined
to be “unavailing,” because despite some “variations in her income from 2005 to 2007” her
salary remained “significantly above the industry average”); Deacon,
2009-Ohio-2491, ¶ 64
(holding the trial court did not abuse its discretion by making the spousal support award
non-modifiable because the payor/spouse had “considerable assets, aside from his regular
income,” and there was no indication that he would “lack[] the resources to comply with
the support order” in the future).
{¶ 33} Because the trial court determined that appellant’s income decreased by over
$200,000 in the year prior to trial, the trial court erred by failing to at least explain why the
decrease in appellant’s income would not impact his ability to comply with the support
order. See Kuper at ¶ 50, citing Lepowsky v. Lepowsky, 7th Dist. No.
04 CO 42, 2006-
Ohio-667, ¶ 51 (stating that, to allow for meaningful review, a trial court “must indicate the
basis for its [spousal support] award in sufficient detail to enable a reviewing court to
determine whether the award is fair, equitable and in accordance with the law”). As such,
we sustain appellant’s third assignment of error and remand for the trial court to explain
why it did not reserve jurisdiction to modify the spousal support award. Depending on the
court’s reasoning, it may alter its reservation of jurisdiction to modify the spousal support
award if necessary.
No. 23AP-319 13
V. Conclusion
{¶ 34} Having sustained appellant’s first and third assignments of error, rendering
appellant’s second assignment of error moot, we reverse the judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, and remand this matter
to that court for further proceedings consistent with law and this decision.
Judgment reversed and
cause remanded.
MENTEL, P.J., and BEATTY BLUNT, J., concur.
