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Date: 08-03-2022
Case Style:
CHARLES MENKHAUS vs. NICOLE FENYO MENKHAUS
Case Number: C210219 & C210430
Judge:
Marilyn Zayas; Presiding Judge
Court:
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
On Appeal From The Hamilton County Court of Common Pleas, Domestic Relations Division
Plaintiff's Attorney: Phyllis G. Bossin Co., L.P.A.
Defendant's Attorney:
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Description:
Cincinnati, Ohio - Divorce lawyer represented defendant with challenging the decree of divorce.
{¶1} Asserting five assignments of error for our review, defendant-appellant
Nicole Fenyo Menkhaus (“wife”) brings this appeal to challenge the decree of divorce
entered by the Hamilton County Court of Common Pleas, Domestic Relations
Division, and the subsequent judgment of the court which granted attorney fees to
plaintiff-appellee Charles Menkhaus (“husband”). For the following reasons, we
overrule assignments of error one through four relating to the decree of divorce but
sustain the fifth assignment of error relating to the grant of attorney fees. Accordingly,
the judgment of the trial court is affirmed in part and reversed in part.
The Parties’ Prenuptial Agreement
{¶2} The dispute in this case mainly concerns a prenuptial agreement (“the
agreement”) entered into by the parties on August 28, 2012. In relevant part, the
agreement provides the following:
RECITALS
* * *
D. Each of the parties has made a full disclosure to the other of
all their assets and sources of income, the disclosure of [wife] being
attached hereto marked as ‘Schedule A’ and the disclosure of [husband]
also attached hereto marked as ‘Schedule B’ (the ‘Disclosure
Statements’). In most instances the values shown on the Disclosure
Statements were determined without formal appraisal but those values
were derived from information available and educated estimates made
by each of them. In any event, both parties are satisfied with the values
stated and if not so satisfied, have had the opportunity to have
OHIO FIRST DISTRICT COURT OF APPEALS
3
independent formal appraisals made of the other’s assets if they should
so choose, but both are satisfied with the amounts so stated.
E. Each party wishes to preserve her/his separate estate, as
such estates now exist and as they may change or be augmented in the
future as hereinafter provided.
F. [Wife] and [husband] have each agreed to accept the
provisions of this Agreement in lieu of all marital rights upon the death
of either of them and the property now owned or hereafter acquired by
either of them or in their estate.
* * *
2. SEPARATE NONMARITAL PROPERTY OF [HUSBAND]. All
of the separate properties, interests and expectancies of [husband]
described or referred to in Schedule B, all property acquired by
[husband] in exchange for property on Schedule B, all property acquired
by [husband] after the marriage with the proceeds from the sale,
encumbrance or other disposition of [husband]’s property, all
properties or interests in property that [husband] in the future may
receive by gift, inheritance, devise, bequest, disposition in trust, or
otherwise, from [wife] or any other person or source, all inurements,
appreciation, investments, and reinvestments of, and all income from
the same, all interests [husband] may have or come to have in any form
of a retirement or benefit plan and/or pension, and all of [husband]’s
salary and earnings in the future shall be and remain his separate
property after the marriage as fully as if he had not married (all of the
above described property and any similar interest in or rights to
OHIO FIRST DISTRICT COURT OF APPEALS
4
property hereinafter referred to as ‘[husband]’s separate nonmarital
property’). None of [husband]’s separate nonmarital property shall be
considered community property or marital property for any reason.
* * *
5. RIGHTS UPON TERMINATION OF MARRIAGE BY
DIVORCE, DISSOLUTION OF MARRIAGE OR ON SUBSEQUENT
ACTION FOR LEGAL SEPARATION.
(a) [Wife] and [husband] each recognize that it is impossible to
presently predict the status of the law with respect to property rights
and spousal support (alimony) in the future, and [wife] and [husband]
therefore desire and intend hereby to define, limit, and agree upon their
respective rights to temporary or pendente lite sustenance spousal
support (alimony), permanent sustenance spousal support (alimony),
lump sum spousal support(alimony), spousal support (alimony) in kind
and/or division of property in the event their marriage should be
terminated by a divorce or dissolution of marriage or in the event a
decree of separation is entered in an action for legal separation (all or
any of such proceedings being hereinafter referred to as ‘termination of
the marriage’).
(b) In the event of termination of the marriage as the result of
an action initiated or instituted by either [wife] or [husband] or by both
of them jointly, then, and in any of such events, the following provisions
shall be applicable:
OHIO FIRST DISTRICT COURT OF APPEALS
5
[i] [Wife] and [husband] shall each retain as their
property, free of any claims of the other, their own separate
nonmarital property.
* * *
[iii] All property acquired by [husband] after the date of
the marriage which is titled in his name (individually or as a
tenant in common with [wife] or any other person) or held
for his beneficial interest shall, to the extent of his interest,
be considered as his separate nonmarital property and shall
be fully retained by him, free of any claims of [wife].
* * *
(c) In the event an action for termination of the marriage is
commenced by either [wife] or [husband], neither shall seek spousal
support, property, or expenses from the other or seek any other relief.
* * *
12. CONSIDERATION. Both parties acknowledge that they are
under no duress, pressure or undue influence. They mutually desire
that this Agreement be made, realize that certain rights granted by law
are being waived hereunder, and that each is fully satisfied with all the
terms, provisions and conditions of this Agreement. What is stated
herein encompasses all they have voluntarily agreed upon. They each
consider the terms and conditions hereof to be fair, reasonable and
satisfactory.
* * *
OHIO FIRST DISTRICT COURT OF APPEALS
6
17. ENTIRE AGREEMENT. This Agreement contains the entire
understanding between [wife] and [husband] with respect to the subject
matter thereof and there are no agreements or understandings, oral or
written, between [wife] and [husband] relating to the subject matter of
this Agreement which are not fully expressed herein.
{¶3} Schedule B to the agreement listed a $200,000 salary as husband’s
source of income. Additionally, a depreciation worksheet for the business “CME
Services LLC Excavation,” was included within the Schedule B. The worksheet
explicitly named CME as the business and listed several of CME’s assets.
Procedural History
{¶4} Husband filed a complaint for divorce against wife on May 14, 2020,
requesting that the agreement, which was attached to the complaint, be enforced.
Wife answered the complaint and asserted a counterclaim for divorce. In her answer,
wife admitted that the parties entered into the agreement but denied that the
agreement should be enforced “in totality.”
{¶5} On June 25, 2020, husband filed a motion for a protective order
pursuant to Civ.R. 26(C) regarding wife’s discovery requests issued on June 3, 2020.
In the motion, husband asserted that wife was requesting extensive information
regarding his assets and argued that such information is irrelevant and could not lead
to “anything discoverable as there is no martial estate pursuant to the parties’
prenuptial agreement.” Husband averred that wife’s requests were “nothing more
than a fishing expedition in light of the parties’ prenuptial agreement,” and argued
that it “would be burdensome, time-consuming and expensive” for husband to
respond to the “irrelevant requests.”
OHIO FIRST DISTRICT COURT OF APPEALS
7
{¶6} Wife subsequently filed a motion to compel husband to answer the
discovery requests “in full.” Wife claimed in the motion that husband’s business was
not “listed anywhere in the prenuptial agreement because it was the parties’ intent not
to make the business a separate asset as the only value to the business at the time was
the equipment of the business.” Thus, wife asserted that only the equipment of the
business was listed in the agreement as husband’s separate property, and not the
business itself. Wife additionally claimed that she worked at husband’s business “in
many different capacities” after the marriage and, through their joint efforts, the
business “increased exponentially during the marriage and has significant value as of
today.” Accordingly, wife requested that the trial court enforce the agreement only as
to the business equipment “as written” and to find that the business itself was a martial
asset. Lastly, wife argued that the spousal-support provision of the agreement was
“unconscionable or inequitable” because husband’s income had increased
“exponentially” throughout the marriage, resulting in a change of circumstances.
{¶7} On July 8, 2020, the trial court ordered that the parties exchange and
file briefs on the issue of whether the agreement covered husband’s business interests.
Husband and wife subsequently filed written memoranda clarifying and supporting
their respective positions. In a reply to husband’s arguments, wife clarified that she
was only seeking to invalidate the spousal-support provision of the prenuptial
agreement. Regarding husband’s business, wife asserted that she had “never argued
against enforcement” of the agreement. (Emphasis sic.) She stated, “And further,
Wife has never argued that she did not know about [the business.] Neither lack of
disclosure nor lack of knowledge of Husband’s business has ever been an issue raised
by Wife.” She reiterated her argument to be that Husband chose not to list the
business itself as his separate property and, as a result, the business is not his separate
OHIO FIRST DISTRICT COURT OF APPEALS
8
property under the agreement. Wife additionally attempted to “withdraw” her earlier
assertion that the only value to the business at the time of the agreement was the
equipment of the business and instead asserted that no one really knew why husband
did not include the business itself as his separate property.
{¶8} In response, husband argued that wife’s admission of full knowledge of
the business at the time of the agreement was a showing sufficient to meet the fulldisclosure requirement for enforcement of the agreement. Alternatively, he argued
that the inclusion of the business name on the depreciation worksheet incorporated
into the agreement was a sufficient disclosure. Husband further argued that inclusion
of the depreciation worksheet was for the purpose of indicating the value of the
business in the absence of a formal appraisal. Thus, husband asserted that there could
be “no question” that the business was his separate property under the agreement.
Lastly, husband asserted that wife was seeking to have the agreement “selectively”
enforced to protect herself.
{¶9} After a hearing held on October 22, 2020, the trial court entered a
decision on October 26, 2020, finding that husband’s business interests were his
separate property. The entry found that husband’s affidavit of property lists three
distinct LLCs: C.M.E. Services, LLC, (“CME”), CME Holdings, LLC, and CME Pipe
Lining, LLC. After finding that it was conceded that only CME was in existence at the
time of the marriage, the trial court concluded that the other two businesses could not
be anything other than husband’s separate property under paragraphs 2 and 5(b)(iii)
of the agreement. The trial court went on to find that CME was also husband’s
separate property. The entry stated:
The only logical conclusion, giving effect to all the provisions of
the Prenuptial Agreement including, but not limited to paragraphs D, E,
OHIO FIRST DISTRICT COURT OF APPEALS
9
F of the Recitals, paragraph 2 and all the provisions of paragraph 5 in
the main body of the contract, that as it reads, these parties intended to
keep all their property separate unless specifically made marital by
placing in both their names. Tellingly, they also agree: ‘In the event an
action for termination of the marriage is commenced by either [Wife] or
[Husband], neither shall seek spousal support, property, or expenses
from the other or seek any other relief.’ This is exactly what Wife is
seeking to do.
{¶10} The trial court continued to find that, under the terms of the agreement,
properties or interest of husband could either be “described” or “referred to” on the
attached Schedule B, and “CME Services LLC Excavation” was “referred to” in the
Schedule B. Lastly, regarding wife’s discovery requests, the court found, “Although
the extent of husband’s business interest would be discoverable as a factor to be
considered in any award of spousal support, this inquiry cannot go forward until the
court has an evidentiary hearing as to whether there are changed circumstances which
render the provisions regarding the waiver of spouse support unconscionable.”
Accordingly, both husband’s motion for a protective order and wife’s motion to compel
were “held in abeyance” until the court ruled on this issue.
{¶11} On January 25, 2021, husband filed a motion for the return of a
computer and cell phone, and for a restraining order. The motion asserted that wife
had a computer and cell phone in her possession that belonged to husband’s business.
Husband claimed that he owned CME Pipe Lining, LLC, formerly operated as CME,
and that wife was issued a cell phone and laptop when she was employed by CME as
an independent contractor through her own LLC, Up4Global, from approximately
May 1, 2018, to November 27, 2019. The motion argued that wife refused to return
OHIO FIRST DISTRICT COURT OF APPEALS
10
the laptop and cell phone when she left the position at CME and argued that the laptop
contained proprietary business information related to CME. The motion asked the
court to additionally order that wife be restrained from making any copies of the hard
drive or “otherwise obtain and retain information from the computer and cell phone
belonging to husband or his business” and from contacting any of CME’s customers or
vendors, and order that wife turn over to husband any copies she made of either
device.
{¶12} Hearings were held on January 12, January 20, and February 5, 2021.
The trial court entered a decision on the spousal-support issue, the discovery issue,
and the computer/cell phone issue on February 22, 2021. Regarding the spousalsupport issue, the trial court issued findings regarding each relevant factor under R.C.
3105.18(C)(1) and concluded, after a thorough analysis, that wife failed to meet her
burden to show a change of circumstances sufficient to demonstrate that enforcement
of the spousal-support provision in the agreement would be unconscionable.
Accordingly, the court denied wife’s motion to compel discovery and granted
husband’s motion for a protective order. Further, the trial court granted husband’s
motion and issued a restraining order prohibiting wife from copying any information
contained on the computer, laptop, or external hard drive and from contacting any of
CME’s customers or vendors.
{¶13} The trial court entered a decree of divorce on March 2, 2021. The entry
incorporated the entries from October 26, 2020, and February 22, 2021, and stated
that the prenuptial agreement was enforceable in its entirety. Accordingly, the court
found that there was no marital property to be divided, that spousal support was
waived, and that such waiver was not unconscionable at the time of divorce.
OHIO FIRST DISTRICT COURT OF APPEALS
11
{¶14} Husband subsequently filed a motion for attorney fees pursuant to R.C.
2323.51, asserting frivolous conduct based on the “baseless and unsupportable claims”
advanced by wife. An affidavit of counsel for husband asserted attorney fees in the
amount of $66,463 based on 231.40 hours worked on the case. Wife filed a response
in opposition, asserting that, although not accepted by the trial court, wife’s arguments
were “warranted under existing law or based upon good faith arguments for an
extension of existing law or the creation of new law.” Wife additionally asserted that
her arguments had evidentiary and legal support, although limited by the court’s
denial of her discovery requests.
{¶15} A hearing was held on the issue of attorney fees on August 9, 2021, and
the trial court entered an order granting husband’s motion for attorney fees the
following day. The entry stated:
In this case the parties had a valid, enforceable prenuptial
agreement. [Wife] advanced no good faith argument for invalidation of
its provisions. The only conclusion this court can reach based on the
lack of viable arguments and the unwillingness to see the evidentiary
documents which refuted each frivolous claim is that the litigation was
advanced by [wife] solely to harass and maliciously injure [husband].
{¶16} However, the trial court found that husband would have incurred some
attorney fees to obtain the divorce even without wife’s “frivolous” claims. Therefore,
the trial court only awarded attorney fees incurred after June 15, 2020, the date the
trial court claimed it “became evident that [wife] would be pursuing her claims without
compromise” and the date that husband began drafting the request for a protective
order. Accordingly, the trial court ordered that wife pay husband $55,010 in attorney
fees. Wife filed a motion to stay the fee award pending appeal, which the trial court
OHIO FIRST DISTRICT COURT OF APPEALS
12
granted on September 13, 2021. Wife timely filed notices of appeal from both the
decree of divorce and the subsequent judgment granting husband’s motion for
attorney fees.
Hearings on Unconscionability of Spousal-Support Provision
{¶17} Husband testified that he started CME, which was his primary source of
income, in 1999. In 2016, CME’s total gross receipts were $2,173,761 and the ordinary
business income was $505,904. In 2017, CME’s total gross receipts were $2,802,487
and the ordinary business income was $169,595. In 2018, CME’s total gross receipts
were $5,155,798 and the ordinary business income was $1,296,168. Husband said that
he received an annual salary from CME. He distinguished his salary from the business
income because he claimed that the business income was retained in the company.
Husband agreed that he also paid distributions to himself on certain occasions.
{¶18} Wife testified that she had a master’s degree and had worked “20-plus
years of business-to-business marketing.” In 2012, wife’s wages were $108,510. She
also had income from “some dividends and interest income,” and had received “a few
hundred thousand” from her father who passed away in 2012. Wife’s total income for
2012 was $156,634. In 2019, wife had a net business income from self-employment of
$118,067. She also had rental income from her property in Switzerland in the amount
of $31,388. Thus, her total income for 2019 was $149,455.
{¶19} Wife said that she and husband had talked about his business during
their marriage. In 2012, they discussed husband separating from a primary account
that made up much of his business and discussed how to replace this account. Wife
testified that she loaned husband $20,000 in 2013 to cover payroll at his business,
which husband paid back within a short period of time. Wife also testified to several
things that she did for husband’s business, including: (1) creating a “unified visual
OHIO FIRST DISTRICT COURT OF APPEALS
13
brand,” which included branding templates and a company logo; (2) creating the
company’s first website in 2010; (3) coming up with the “d/b/a” CME Sewer Repair;
(4) creating a “target list of plumbers” to work with; (5) introducing husband to SNAP,
which “redesigned” the company logo; (6) teaching husband about value-based
pricing; (7) completing four case studies; (8) creating a segmentation strategy; (9)
recommending a customer relationship management software which was adopted and
implemented at CME; (10) bringing in, engaging, and talking to vendors; (11) acting
as a CME representative while engaging with Trenchless Marketing to “rebrand” the
website; (12) creating the template and infrastructure and setting up monthly
spreadsheets as part of a metrics tracking process; (13) creating a safety process for
CME; (14) applying and implementing an entrepreneurial operating system; (15)
finalizing an almost complete employee handbook; (16) creating a step-by-step
process for new employees to go through; (17) having difficult conversations with
employees; (18) prequalifying interviewees; (19) interacting with the company’s law
firm on a noncompete lawsuit; (20) arranging and participating in an interview for a
magazine; and (21) running the office. Wife admitted that she was not the only one
involved in these things.
{¶20} When asked if she was paid for doing these services, wife said she was
paid for the things that she billed for. She claimed there were “a number of ad hoc”
email responses and conversations that were unaccounted for. Wife worked as an
independent contractor for CME starting in 2018. In 2019, she worked 20 hours per
week for CME. She said her hours in 2018 “would have been less.” Husband capped
her hours at 20 hours per week. She charged husband $130 an hour for her work. She
believed this was not fair compensation. When asked if she felt like she was treated
fairly, wife responded:
OHIO FIRST DISTRICT COURT OF APPEALS
14
[N]o, I don’t feel that it’s fair. Again, I went in to help [husband],
and I went in to work on – to help him with his business and to help him
with his – his health and happiness as well. The business – the business
grew substantially through – through my input, whether it was direct or
indirectly because [husband] would go out and do what [husband] does
best. We were building this company, and we were working on this
company together for our future, and I’m really – this was – this was us
building together, and ultimately what’s happened is [husband] has
taken this future, and he’s – he’s eliminating me from it altogether. I’m
– it’s obviously – it’s obviously hurtful, but it is not fair. Now, I believe
people in general, regardless of who they are, should be compensated
for the value that they provide and the work that they do. So – so I do
not think that it’s fair that I do all the effort, energy, experience,
knowledge, and that I brought to the table that I brought to [husband]
and that I brought to CME that he should then take this result and be
able to walk away.
{¶21} Wife testified that she believed two key factors contributed to the
“massive growth” of CME in 2018: (1) digital advertising, which she brought to CME,
and (2) husband not “having to stay in the office and manage employee issues and
manage the whole admin side of his business.” She said husband “had his freedom to
go out and do what he does best.” She claimed that she managed the office.
{¶22} Wife was terminated from her position at CME the day before
Thanksgiving in 2019. She obtained a new position in July 2020, working 30 hours
per week at a salary of $50,000. She said it took eight months to find this position due
OHIO FIRST DISTRICT COURT OF APPEALS
15
to the COVID-19 pandemic. Wife testified that her income since 2012 is “essentially
the same,” but said husband’s income has “increased by over a million dollars.”
{¶23} Husband testified that he is the sole owner of two additional businesses:
CME Services and CME Pipe Lining. Both businesses are S corporations. CME
Holdings is a holding company for the properties he owns. Husband’s total income
for 2019 was $614,624, which includes a salary from CME of $92,558. He agreed that
he had general conversations about the business with wife during the marriage. He
denied that wife ever improved his earning capacity. He denied that he currently laid
pipe for his company and asserted that he was the president and CEO of the company
and handles everything that comes with this position. He said he had been running
CME for 21 years. Husband denied most of wife’s claimed contributions or asserted
that wife’s contributions had no impact on the growth of the company. He testified
that he had always employed an office manager at CME. He asserted that wife’s
implementation of digital marketing actually decreased the net income of the business
because it was a significant expense with no return. He averred that his increased
earning capacity was a result of his company doing good work and building a good
reputation. He also asserted that his business had an edge because of the unique way
they line the pipes. Additionally, he stated, “You know, I can tell you when and why
we had big jumps, because that would be the year that I hired a salesman, and the next
big jump was the year that I hired a second salesman, so that’s where the big jumps
are.”
{¶24} Husband testified that he was already living with wife at the time of the
marriage. Before he signed the prenuptial agreement, he and wife discussed that they
were going to keep separate finances during the marriage. They never had a joint
checking or savings account. He said that he paid rent to wife while living in her home.
OHIO FIRST DISTRICT COURT OF APPEALS
16
He totaled the rent that he paid to wife at $174,000. He denied taking fancy vacations
with wife, going out to expensive dinners, or belonging to any country clubs. He
denied relying on wife’s income and denied that wife ever relied on his income. He
denied that they ever created a marital standard of living. He testified that he
completed renovations on wife’s house in the amount of $188,000, for which he was
never paid.
{¶25} Wife admitted that her assets had “significantly increased” in value. She
agreed that she received over $100,000 in income “without having to put clothes on.”
Wife testified that she and husband would split the cost 50/50 if they went on vacation.
She agreed that they kept their income “completely separate” during the marriage. She
denied creating a “lavish marital lifestyle.”
{¶26} Matthew Benton works for Trenchless Marketing. He testified that he
met husband around 2011 when he was working for Natural Media. He started
Trenchless Marketing in 2014 or 2015. Husband was one of his first customers at
Trenchless Marketing, after he made a proposal to husband regarding search engine
optimization for his business website. Benton testified that he built CME’s website.
He agreed that wife was involved in some of the process for doing that. He said wife
was one of three contacts at CME that Trenchless would interact with on a semiregular basis. Wife would ask questions or make suggestions.
Law and Analysis
Second Assignment of Error1
{¶27} In her second assignment of error, wife argues that the trial court erred
as a matter of law by finding that husband’s business interests were his separate
1 For ease of discussion, we address the assignments of error out of order.
OHIO FIRST DISTRICT COURT OF APPEALS
17
nonmarital property under the terms of the parties’ prenuptial agreement. In Gross
v. Gross, 11 Ohio St.3d 99, 105, 464 N.E.2d 500 (1984), the Ohio Supreme Court set
forth a three-part test to determine the enforceability of prenuptial agreements (also
known as antenuptial agreements): (1) the agreement must have been entered into
freely without fraud, duress, coercion, or overreaching; (2) the agreement must have
been entered into with full disclosure, or full knowledge, and understanding, of the
nature, value, and extent of the prospective spouse’s property; and (3) the agreement
must not, by its terms, promote or encourage divorce or profiteering by divorce.
{¶28} “A prenuptial agreement is a contract, and generally the law of contracts
applies to a court’s interpretation of the agreement. But a prenuptial agreement is a
‘special type of contract to which certain rules apply.’ ” Gearheart v. Cooper, 1st Dist.
Hamilton Nos. C-050532 and C-060170, 2007-Ohio-25, ¶ 15, quoting Fletcher v.
Fletcher, 68 Ohio St.3d 464, 467, 628 N.E.2d 1343 (1993). “When a prenuptial
agreement provides disproportionately less than the party challenging it would have
received under an equitable distribution, the burden is on the party claiming the
validity of the contract to show that the other party entered into it with the benefit of
full knowledge or disclosure of the assets of the proponent.” Id., citing Fletcher. “The
burden shifts to the party challenging the agreement to prove fraud, duress, coercion,
or overreaching.” Id., citing Fletcher. “In reviewing a trial court’s determination of
the validity of a prenuptial agreement, an appellate court should uphold the trial
court’s findings if they are supported by competent evidence.” Id. at ¶ 16, citing
Fletcher at 468. “And an appellate court ‘will indulge all reasonable presumptions
consistent with the record in favor of [the trial court’s] decision on questions of law.’ ”
Id., quoting Fletcher. “ ‘Courts of appeals have consistently looked to the totality of
the circumstances to determine whether the required knowledge of assets is present.’
OHIO FIRST DISTRICT COURT OF APPEALS
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” Gomer v. Gomer, 2017-Ohio-989, 86 N.E.3d 920, ¶ 12 (6th Dist.), quoting
Vanderbilt v. Vanderbilt, 9th Dist. Medina Nos. 11CA0103-M and 11CA0104-M, 2013-
Ohio-1222, ¶ 10.
{¶29} While wife asserts that she is not seeking to invalidate the agreement,
she argues that husband did not make a “full disclosure” in the prenuptial agreement
because he did not specifically list the business CME Services in the agreement;
however, for purposes of validity of a prenuptial agreement, full knowledge of the
assets is sufficient to satisfy the disclosure requirement. See Vanderbilt at ¶ 7-10;
Heimann v. Heimann, 3d Dist. Hancock No. 5-21-11, 2022-Ohio-241, ¶ 33; Gates v.
Gates, 7th Dist. Columbiana No. 06 CO 60, 2007-Ohio-5040, ¶ 62-63. Wife does not
contest that she had full knowledge of the business when the prenuptial agreement
was entered into. In fact, when asked during trial what her understanding was for
husband’s income at the time of the agreement, she testified, “My understanding of
the $200,000 stated in the prenup was that that represented the revenues of his sole
proprietorship in his business.”
{¶30} Therefore, the issue before this court seems to be one solely of
contractual interpretation rather than invalidation of the agreement. Wife claims that
CME was not expressly listed by husband in his Schedule B—only the business
equipment was—and therefore, it was not intended that the business itself be included
as husband’s separate property under the agreement. Additionally, wife argues that
CME Holdings, LLC, and CME Pipe Lining, LLC,—husband’s two additional
businesses formed after the marriage—could not be separate property under provision
5(b)(iii) of the agreement because it is unknown whether these businesses were
purchased with money from CME.
OHIO FIRST DISTRICT COURT OF APPEALS
19
{¶31} “Under Ohio law, parties to an antenuptial agreement are permitted to
cut one another off entirely from any participation in the other’s estate.” Roseman v.
Glanz, 8th Dist. Cuyahoga No. 93628, 2010-Ohio-680, ¶ 15, citing Hook v. Hook, 69
Ohio St.2d 234, 235, 431 N.E.2d 667 (1982), and Daniels v. Daniels, 10th Dist.
Franklin No. 01AP-1146, 2002-Ohio-2767. “The law of contracts will generally apply
to the application and interpretation of antenuptial agreements; such is a matter of
law to be determined by the courts.” Id., citing Latina v. Woodpath Dev. Co., 57 Ohio
St.3d 212, 214, 567 N.E.2d 262 (1991). “A court should interpret a contract to carry
out the intent of the parties as manifested by the language of the contract.” Id. at ¶ 16,
citing Skivolocki v. East Ohio Gas Co., 38 Ohio St.2d 244, 313 N.E.2d 674 (1974),
paragraph one of the syllabus.
{¶32} “When the terms of the contract are clear and unambiguous, courts may
not create a new contract by finding intent not expressed by the terms.” Id., citing
Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 245-246, 374 N.E.2d 146
(1978). “In analyzing an unambiguous contact, words must be given their plain and
ordinary meaning.” Id., citing Forstner v. Forstner, 68 Ohio App.3d 367, 372, 588
N.E.2d 285 (11th Dist.1990). “If a contract, or portions of a contract, are found to be
ambiguous, then the courts must resort to principles of contract construction.” Id. at
¶ 17, citing Shifrin v. Forest City Ent., Inc., 64 Ohio St.3d 635, 638, 597 N.E.2d 499
(1992). “ ‘All provisions of a contract must be construed together in determining the
meaning and intention of any particular clause or provision therein.’ ” Id., citing
Legler v. United States Fid. & Guar. Co., 88 Ohio St. 336, 103 N.E. 897 (1913). “The
intention of the parties to the agreement is paramount, and contracts should be
interpreted to carry out the intent insofar as it can be ascertained.” Id., citing
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Skivolocki at 244, and In re Estate of Taris, 10th Dist. Franklin No. 04AP-1264, 2005-
Ohio-1516.
{¶33} The key provision of the agreement pertaining to CME is provision 2,
which provides that any separate properties or interests of husband described or
referred to in the Schedule B are his separate property. Included as page three and
four of the Schedule B was the depreciation worksheet for “CME Services LLC
Excavation.” Thus, CME is clearly “referred to” in the Schedule B. Wife argues that
because the worksheet was originally created for tax purposes, there is nothing in the
worksheet to indicate that the inclusion of the business name was to describe an asset
to be included as separate property. However, it is unclear why this worksheet would
have been included within the Schedule B if not for the purpose of identifying
husband’s interests in the company. Recital D of the agreement shows that the
purpose of the Schedule B was to disclose husband’s assets. Clearly, including the
worksheet for the business within the schedule was for the purpose of referencing
husband’s interests in CME and thereby indicating that it was an asset which the
parties intended to keep separate. This is further supported by the additional language
of recital D which states that a full disclosure of assets was made, and the language of
recital E which states that the parties wished to preserve each party’s estate as it
existed at the time of the agreement.
{¶34} When looking at the agreement in its entirety, it is very clear that the
parties intended to keep all their assets completely separate, whether acquired before
or after the marriage. Surely, given that wife was fully aware of husband’s business at
the time of the agreement, a specific exception for the business would have been
included had that been the parties’ intention. We interpret the inclusion of the
depreciation worksheet for CME in accord with the clear intent of the parties at the
OHIO FIRST DISTRICT COURT OF APPEALS
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time of entering into the agreement. Accordingly, we agree with the trial court and
hold that CME was included as husband’s separate property under the agreement
because it is referred to in the Schedule B as required under provision 2, which
specifically addressed husband’s separate, nonmarital property.
{¶35} Provision 2 additionally provides that all property acquired by husband
in exchange for such property, as well as all property acquired by husband after the
marriage with proceeds from the sale of his property, plus all income from the same,
and his salary and earnings in the future, shall remain his separate property.
Therefore, even if husband’s two additional businesses were purchased with money
from CME, they would still be included as separate property under the agreement.
Accordingly, this assignment of error is overruled.
Third Assignment of Error
{¶36} In her third assignment of error, wife argues that the trial court erred as
a matter of law by finding that wife failed to meet her burden to demonstrate the
unconscionability of the spousal-support provision in the agreement. “In review of
provisions in antenuptial agreements regarding maintenance or sustenance alimony,
a further standard of review must be applied – one of conscionability of the provision
at the time of the divorce or separation.” Gross, 11 Ohio St.3d at 109, 464 N.E.2d 500.
Although such provisions in prenuptial agreements may generally be considered valid
and even though the agreement in question has been reviewed and found to be
enforceable, “the provisions relating to maintenance or sustenance may lose their
validity by reason of changed circumstances which render the provisions
unconscionable as to one or the other at the time of the divorce of the parties.” Id.
“Accordingly, such provisions may, upon a review of all of the circumstances, be found
to have become voidable at the time of the divorce or dissolution.” Id. This is so
OHIO FIRST DISTRICT COURT OF APPEALS
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because of the state interest in the welfare of the divorced spouse. Id. “It is a valid
interest of the state to mitigate potential harm, hardship, or disadvantage to a spouse
which would be occasioned by the breakup of the marriage, and a strict and literal
interpretation of the provisions for maintenance of the spouse to be in these
agreements.” Id.
{¶37} The party claiming unconscionability of a provision for maintenance
has the burden of showing the unconscionable effect of the provision at the time of the
divorce or dissolution. Id. “The trial court, in the determination of the issue of
conscionability and reasonableness of the provisions for sustenance or maintenance
of a spouse at the time of the divorce, shall utilize the factors that govern the allowance
of alimony which are set forth in R.C. 3105.18.” Id. at 109-110.
{¶38} The factors to be considered under R.C. 3105.18(C) are: (a) the income
of the parties, from all sources; (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 appropriate for a party, because the 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; (j) the
contribution of each party to the education, training, or earning abilities of the other
party; (k) the time and expense necessary for the spouse who is seeking spousal
support to acquire education, training, or job experience so that the spouse will be
qualified to obtain appropriate employment, provided the education, training, or job
experience, and employment is, in fact, sought; (l) the tax consequences, for each
party, of an award of spousal support; (m) the lost income production capacity of
OHIO FIRST DISTRICT COURT OF APPEALS
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either party that results from that party’s marital responsibilities; and (n) any other
factor that the court expressly finds to be relevant and equitable.
{¶39} “The question for the trial court is not whether the spousal support
terms of a prenuptial agreement are fair, but whether they are unconscionable when
viewed at the time of the divorce.” Vanderbilt, 9th Dist. Medina Nos. 11CA0103-M
and 11CA0104-M, 2013-Ohio-1222, at ¶ 40. Appellate “review of a trial court’s
decision regarding the conscionability of a spousal-support provision of an
antenuptial agreement ‘implicates a mixed question of law and fact.’ ” Heimann v.
Heimann, 3d Dist. Hancock No. 5-21-11, 2022-Ohio-241, ¶ 53, citing Mann v. Mann,
9th Dist. Lorain No. 09CA009685, 2010-Ohio-1489, ¶ 10. The determination of
whether the agreement is unconscionable is an issue of law which the court reviews de
novo; however, a trial court’s factual findings which support its determination on
conscionability should be reviewed with great deference. Mann at ¶ 10, quoting Saari
v. Saari, 9th Dist. Lorain No. 08CA009507, 2009-Ohio-4940, ¶ 11.
{¶40} The trial court made explicit findings regarding each relevant factor
under R.C. 3105.18(C). Regarding husband’s income, the trial court found that
husband’s income at the time of the agreement was $200,000 and that husband’s
business income had risen “exponentially” from the time of the marriage; however,
despite the net revenue being available to him, husband only takes a “modest salary”
of $96,000 a year and reinvests the remaining value in the business. See R.C.
3105.18(C)(1)(a). Regarding wife’s income, the trial court found that she earned
$100,000 in 2012 when the parties were married, and that wife had a net income of
$149,455 in 2019. See id. Additionally, the trial court found that wife’s current
income, which included her salary, net rental income and investment income, was
$164,000 per year, which was $64,000 more than she earned in 2012. See id. The
OHIO FIRST DISTRICT COURT OF APPEALS
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trial court found that both parties had stable earning abilities and that there was no
evidence of any physical, mental, or emotional impairments. See R.C.
3105.18(C)(1)(b), (c). The trial court found that husband had $70,000 in retirement
assets, whereas wife had $2,000,000 in retirement assets. See R.C. 3105.18(C)(1)(d).
Regarding the martial standard of living, the trial court found that husband had paid
rent and living expenses to wife and drove a company truck. See R.C. 3105.18(C)(1)(g).
Additionally, the trial court found that the parties did not take extravagant vacations,
did not belong to any country clubs, and did not go to expensive restaurants. See id.
Further, the trial court found that each spouse paid his or her own way from their
personal assets and income and that husband continued to live modestly although
both parties had wealth. See id.
{¶41} The trial court found that husband had a high school diploma, whereas
wife had advanced degrees, and that both parties had substantial assets, which
increased during the marriage. See R.C. 3105.18(C)(1)(h) and (i). Regarding the
contribution of either party to the other party’s earning ability, the trial court found
that (1) neither party had contributed to the education or training of the other; (2) wife
contended that she increased husband’s earning ability by working for his company,
but this was contested by husband; (3) despite wife’s lengthy testimony about what
she did for the company, she provided no evidence of the effect of these efforts; (4)
husband’s company has had a steady income increase over the entire course of its
history, with the exception of the year that wife was doing the marketing as the
marketing was costly with no return, according to husband; and (5) the big jumps in
income happened twice from 2012 to 2020, and both corresponded to when a new
sales person was hired. See R.C. 3105.18(C)(1)(j).
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶42} Finally, the trial court found the following additional information to be
relevant to the analysis: (1) wife suggested the agreement several months prior to the
marriage and it was prepared by her attorney; (2) both parties currently, and at the
time of the marriage, have income which supports them, assets, and real estate; (3)
husband made improvements to wife’s home valued at $188,000 for which he did not
charge wife and did not receive compensation; and (4) wife still owns the home which
is now worth well over $550,000.
{¶43} These findings are supported by the record. While it seems to be
undisputed that husband’s assets increased substantially, this alone is insufficient for
a finding of unconscionability. More than just a general change in circumstances is
required. It must be a change in circumstances which renders enforcement of the
spousal support provision unconscionable. See Vanderbilt v. Vanderbilt, 9th Dist.
Medina No. 13CA0084-M, 2014-Ohio-3652, ¶ 7, 12. The purpose behind invalidating
waivers of spousal support in a prenuptial agreement is to avoid harm, hardship, or
disadvantage to a spouse. See Gross, 11 Ohio St.3d at 109, 464 N.E.2d 500. Here, the
parties have always maintained separate finances, were not dependent on each other
financially during the marriage, did not create a marital lifestyle together, did not own
joint assets, can earn their own income consistent with the lifestyle they have been
independently living, and each have substantial wealth. The fact that husband now
has more assets that he did when wife suggested the agreement is not evidence of any
harm, hardship, or disadvantage to wife. Her way of life and resources are not being
changed in any way because of enforcement of the prenuptial agreement. Wife
essentially argues that it is unfair to enforce the spousal-support provision due to
husband’s change in circumstance. However, valid prenuptial agreements often result
in unfair circumstances. Whether enforcement is unfair is not the standard. See
OHIO FIRST DISTRICT COURT OF APPEALS
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Vanderbilt, 9th Dist. Medina Nos. 11CA0103-M and 11CA0104-M, 2013-Ohio-1222, at
¶ 40. The question is whether enforcement of the spousal-support provision is
unconscionable. Id. Wife failed to meet her burden to show that enforcement of the
spousal-support provision in the agreement would be unconscionable. Therefore, this
assignment of error is overruled.
First Assignment of Error
{¶44} In her first assignment of error, wife argues that the trial court erred as
a matter of law in granting husband’s motion for a protective order and denying her
motion to compel discovery responses. Civ.R. 26(B)(1) provides that, generally:
Unless otherwise limited by court order, the scope of discovery
is as follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional
to the needs of the case, considering the importance of the issues at state
in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of
the proposed discovery outweighs the likely benefit.
(Emphasis added.)
Upon motion by any party or by the person from whom discovery
is sought, and for good cause shown, the court in which the action is
pending may make any order that justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden
or expense, including * * * (1) that the discovery not be had; * * * [or]
(4) that certain matters not be inquired into or that the scope of
discovery be limited to certain matters; * * *.”
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Civ.R. 26(C).
{¶45} We review a trial court’s decision to grant a protective order under
Civ.R. 26(C) for an abuse of discretion. Ruwe v. Bd. of Twp. Trustees, 29 Ohio St.3d
59, 61, 505 N.E.2d 957 (1987); accord Grace v. Mastruserio, 182 Ohio App.3d 243,
2007-Ohio-3942, 912 N.E.2d 608, ¶ 29 (1st Dist.), citing Ruwe. An abuse of discretion
is more than an error of law or judgment; it implies an attitude on the part of the trial
court that is unreasonable, arbitrary, or unconscionable. Id.
{¶46} Wife challenges the trial court’s grant of husband’s request for a
protective order and argues that she was “hamstrung” in preparing her case, especially
regarding unconscionability of spousal support. The discovery requests which
husband sought to avoid are not in the record. Husband’s motion for a protective
order asserted that wife had issued a “wide-ranging request asking for extensive
information” regarding husband’s assets and asserted that it would be burdensome
and time-consuming to respond given that it was an irrelevant request considering the
prenuptial agreement. It should be noted that the trial court did not grant the
protection order until the conclusion of all hearings related to the agreement.
Additionally, at the conclusion of the first hearing on spousal support, the trial court
ordered that husband turn over his tax returns for 2019 before the next court hearing
once it became clear that the information was needed, and wife did not have it. The
2019 tax returns were provided to wife before the next hearing. Tax returns for the
previous years had already been provided to wife. Thus, the trial court ordered the
parties to turn over the information that it found to be relevant to the precise issues
before it. Wife’s argument seems to be focused on her entitlement to information
about husband’s assets as this was a relevant factor to be considered when invalidating
the spousal-support provision. However, there does not seem to be any dispute that
OHIO FIRST DISTRICT COURT OF APPEALS
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husband’s assets significantly increased. In fact, the trial court made a finding that
husband’s income had risen exponentially from the time of the marriage when
considering the R.C. 3105.18(C) factors. The scope of discovery is limited to relevant
information that is proportional to the needs of the case, and the trial court was within
its discretion to limit discovery accordingly to protect husband from undue burden or
expense. See Civ.R. 26(B)(1), (C). Therefore, we cannot determine the trial court
abused its discretion in granting the protection order. Accordingly, this assignment of
error is overruled.
Fourth Assignment of Error
{¶47} In her fourth assignment of error, wife argues that the trial court erred
as a matter of law by granting husband’s motion for return of the computer and cell
phone. Specifically, wife argues that the computer and cell phone were gifts under
R.C. 3105.171(A)(6)(a)(vii). Husband argues that they were purchased by CME for
wife to use only and were not gifts. A trial court’s factual findings as to the
characterization of property is reviewed under the distinct sufficiency-and-weight-ofthe-evidence standards. Boolchand v. Boolchand, 1st Dist. Hamilton No. C-200111,
2020-Ohio-6951, ¶ 9, citing McKenna v. McKenna, 1st Dist. Hamilton No. C-180475,
2019-Ohio-3807, ¶ 9-10.
{¶48} During trial, husband denied that the computer and cell phone were
gifts to wife. He asserted that they were paid for by the company. Husband did agree
that he bought the laptop for wife for personal and business use; however, he asserted
that it was to use, not to keep. Husband testified that he did not know when the
company bought wife the cell phone, but it was put on the company’s account. He
agreed that it was just the company information on the devices that he was concerned
about. Husband said that, after wife was fired, she used a program called Keeper to
OHIO FIRST DISTRICT COURT OF APPEALS
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lock everyone at CME out of anything that required a password, and when he asked
wife for the password, she told him that he had to pay her $1.4 million before she would
give him the password. Wife disputed that this occurred. Husband testified that, as a
result, he had to change over 214 passwords. He claimed this to be the reason why he
wanted the return of the computer and cell phone as he was concerned about all of the
company information on the devices and what wife would do with this information.
{¶49} At the conclusion of the spousal-support hearings, the parties discussed
this issue on the record. Counsel for husband expressed that husband would be willing
to allow removal of company data from the cell phone, computer, and external hard
drive which wife possessed, so long as it was removed by someone experienced in
information technology. Husband expressed concern that simply allowing wife to
delete the files would not actually remove the data from the devices. Wife would not
allow removal of the files from the devices because she claimed the templates for the
documents remained hers and she did not want the templates to be shared with the
company. She agreed that the company-specific data could be removed, but not the
templates that she created. Counsel for husband expressed that these templates were
made when she was working for the company. After further discussion between the
parties, the trial court stated, “All right. You either decide or I am going to order, and
nobody is going to like my order. So I suggest you make a compromise position at this
point, a compromise offer right now.” The parties then agreed to set up a conference
call with an information technology professional to discuss this issue, and the court
agreed to let the parties work it out.
{¶50} What is clear from the record is that the trial court tried to have this
issue resolved between the parties. What is unclear from the record is what happened
between the time that the trial court agreed to let the parties work it out by consulting
OHIO FIRST DISTRICT COURT OF APPEALS
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with a professional and when the trial court ordered the devices be returned to
husband. Wife argues that it was an abuse of discretion for the trial court to order the
return of the devices when husband agreed he just wanted the company information
removed from them. However, the only inference that can be made from the record is
that the parties did not reach an agreement on what information would be removed
and what would not be removed from the devices in order to allow wife to keep the
devices. Therefore, a property-characterization determination was required. It
appears that the trial court rejected wife’s assertion that the devices were gifts to her
and instead ordered the return of devices to husband. We cannot determine this
finding was not supported by the evidence or was against the manifest weight of the
evidence. Accordingly, this assignment of error is overruled.
Fifth Assignment of Error
{¶51} In her fifth assignment of error, wife argues that the trial court erred as
a matter of law by granting husband’s motion for attorney fees. “R.C. 2323.51 allows
the trial court to award fees to any party adversely affected by frivolous conduct.”
Gearhart, 1st Dist. Hamilton Nos. C-050532 and C-060170, 2007-Ohio-25, at ¶ 24,
citing Bryan v. Bryan, 161 Ohio App.3d 454, 2005-Ohio-2739, 830 N.E.2d 1216, ¶ 7
(1st Dist.); See R.C. 2323.51(B)(1).
The statute defines frivolous conduct as conduct by a party to a
civil action that (1) serves merely to harass or maliciously injure another
party to the action or is for another improper purpose, such as causing
unnecessary delay or a needless increase in the cost of litigation; (2) is
not warranted under existing law and cannot be supported by a goodfaith argument for a modification or establishment of new law; (3)
consists of allegations or other factual contentions that have no
OHIO FIRST DISTRICT COURT OF APPEALS
31
evidentiary support; or (4) consists of denials or factual contentions that
are not warranted by the evidence.
Id., citing R.C. 2323.51(A)(2)(a).
{¶52} “The standard of review applicable to the imposition of sanctions for
frivolous conduct under R.C. 2323.51 depends on whether there are questions of law
or of fact, or whether there are mixed questions of law and fact.” Id. at ¶ 25, citing
Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, ¶ 25 (1st
Dist.). “With respect to purely legal questions, an appellate court employs a de novo
standard of review.” Id. at ¶ 25, citing Riston at ¶ 27. “On the other hand, an appellate
court should not disturb a trial court’s findings of fact if the record contains competent,
credible evidence to support the findings.” (Citation omitted.) Id. The trial court’s
ultimate decision to award attorney fees based on frivolous conduct that adversely
affected a party is reviewed for an abuse of discretion. Id.
{¶53} Here, the trial court based its decision to award husband attorney fees
on whether a good-faith argument existed for wife to invalidate the agreement. We
interpret this to be a finding that the conduct was frivolous pursuant to R.C.
2323.51(A)(2)(a)(ii), which requires conduct that is not warranted under existing law,
cannot be supported by a good-faith argument for an extension, modification, or
reversal of existing law, or cannot be supported by a good-faith argument for the
establishment of new law. A determination under this provision involves a legal
analysis that we review de novo. Gauthier v. Gauthier, 1st Dist. Hamilton Nos. C170387 and C-170398, 2018-Ohio-4970, ¶ 18.
{¶54} R.C. 2323.51 must be applied carefully so as not to chill legitimate
claims. Id. at ¶ 35, quoting Hickman v. Murray, 2d Dist. Montgomery No. CA 15030,
1996 Ohio App. LEXIS 1028, *13 (Mar. 22, 1996). The statute was designed to chill
OHIO FIRST DISTRICT COURT OF APPEALS
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egregious, overzealous, unjustifiable, and frivolous conduct; it was not intended to
punish mere misjudgment or tactical error. Id., quoting Hickman. The test for
deciding whether a claim is warranted under existing law is objective and requires a
determination of whether no reasonable lawyer would have brought the action in light
of existing law. Id., quoting Hickman. Said differently, a claim is frivolous only where
it is absolutely clear under the existing law that no reasonable lawyer could argue the
claim. Id., quoting Hickman.
{¶55} In essence, wife advanced two arguments in the trial court for
invalidating the agreement: (1) husband’s businesses were not included as his separate
property under the express terms of the agreement, and (2) enforcement of the
spousal-support provision of the agreement would be unconscionable because wife
contributed to husband’s earning ability, and this resulted in a substantial increase to
husband’s income.
{¶56} Regarding wife’s first argument pertaining to whether CME was
included as husband’s separate property under the agreement, the argument was
based on an arguable interpretation of the agreement. As the business was mentioned
solely in the depreciation worksheet included within the Schedule B, it was not a
straightforward, yes-or-no, answer on whether the business was included under the
language of the agreement. It required interpretation. Additionally, whether
husband’s other two businesses were included under the agreement hinged on
whether the trial court found that CME was included under the agreement as
husband’s separate property. Because these issues were not straightforward under the
agreement, we cannot say that no reasonable attorney would have advanced the
argument.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶57} Regarding wife’s second argument pertaining to the spousal-support
provision, the argument she advanced was presented under R.C. 3105.18(C)(1)(a) and
(j), which instructed the trial court to consider the parties’ income and any
contribution of one spouse to the earning ability of the other spouse when determining
the unconscionability of enforcing a spousal-support provision. Whether wife
contributed to husband’s earning ability hinged on presentation of facts and
credibility, and the trial court could have gone either way on this issue as it basically
came down to which party was more believable. While the argument may not have
ultimately prevailed, this does not make her argument frivolous. See Pitcher v.
Waldman, 1st Dist. Hamilton No. C-160245, 2016-Ohio-5491, ¶ 21. Wife’s arguments
were presented based on factors that the trial court was required to consider.
Accordingly, we cannot say that no reasonable attorney would have advanced this
argument. Therefore, we hold that the trial court erred in finding that wife’s conduct
in bringing these claims was frivolous under R.C. 2323.51(A)(2)(a)(ii).
{¶58} The trial court made an additional finding under R.C.
2323.51(A)(2)(a)(i) that wife’s claims were brought merely to harass husband.
However, this finding was based on the trial court’s previous finding that there was no
good-faith basis for advancing the arguments that she did. Because we hold that this
determination was in error, we also hold that the trial court’s additional finding was
not supported by the record. Accordingly, this assignment of error is sustained.
Outcome: Having overruled the first, second, third and fourth assignments of
error, we affirm the trial court’s decree of divorce. Having sustained the fifth
assignment of error, we reverse the trial court’s judgment awarding attorney fees to husband and remand the cause with instructions to enter judgment denying husband’s motion for attorney fees.
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