Miller v. Miller, 2024-Ohio-821
The husband, Craig Miller, appealed from an amended judgment decree of divorce. The appellate court reversed the trial court.
Facts and procedural history.
The parties married on June 15, 2004. The husband became an optometrist in 2004 and opened his practice, Eye Columbus, in 2010, as sole owner. At the time of trial, the appellee (the wife) administered clinical trial contracts for Parexel International LLC. The trial court issued its initial decree (original decree) on Oct. 19, 2018.
During the trial, the wife’s expert found Eye Columbus to have a value of $960,000, while the husband’s expert arrived at a value of $222,000. The husband also offered testimony of Alan Cleinman, but the trial court was unable to qualify him as an expert witness. The parties stipulated to June 30, 2016, as the date to determine the value of the marital assets. While finding that both valuations were flawed, the husband’s valuation was more flawed, and the trial court determined a value of $960,000. Also relying on the wife’s expert, the trial court determined that the husband’s income average from 2015 to 2017 was $297,485. The husband was ordered to pay $5,500 monthly in spousal support for 48 months.
The husband appealed the original decree to this appellate court “asserting the trial court inequitably divided the marital property, improperly imputed income to him, and erred by granting appellee spousal support.” The husband further argued that trial court erred by relying on the wife’s expert since she “ignored” discounts of $658,460 to insurance payers. The wife’s expert did not ask why the discounts were out of line with other years.
In the first appeal to this court, the appellate court noted that 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.” The trial court labeled the wife’s expert’s report as flawed but did not point out how. The appellate court reversed and remanded for a reassessment. On June 10, 2022, the husband filed a motion in limine asking the trial court to exclude any evidence on Columbus Eye after the de facto termination date of June 30, 2016. The trial court did not rule on this motion.
The husband presented the report of Rebekah Smith at the June 14, 2022, hearing. The trial court qualified Smith as an expert. Although the termination date applied to the value of Eye Columbus, it did not apply to the income for support purposes. Smith valued Eye Columbus at $300,000. Smith explained the discounts noted above as a change in accounting presentation, so the discounts did not really vary as much as the wife’s expert noted.
The husband also filed a motion with the trial court to supplement evidence regarding the parties’ incomes from June 30, 2016, through June 14, 2022. On May 2, 2023, the trial court issued its amended decree. The court did not consider the report of Smith since it contained information after June 30, 2016, namely the sale of Eye Columbus in 2019.
The wife’s expert made an alternative calculation, making the discount adjustment and, after “playing around” with some other adjustments, arrived at a value of $875,000, which the trial court accepted as the Eye Columbus value to the marital estate. “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.” The trial court also retained the $5,500 a month support for 48 months and did not retain jurisdiction to modify it.
Assignments of error.
The husband appealed and made three assignments of error:
- The trial court erred in not accepting and reviewing the evidence Rebekah Smith presented, “which was material and relevant to the determination of the issue of business valuation and the income of a party”;
- The trial court erred in using the same report it had labeled as flawed in the first trial; and
- The trial court erred in awarding alimony for an extended period and making it “non modifiable” when the husband’s income is subject to fluctuations for a number of reasons (outlined in the opinion).
First and second assignments of error.
The trial court said it was sustaining the husband’s continuing objection to admitting any new evidence on remand and so excluded Smith’s testimony and report. Nothing in the record supports the trial court’s statement that the husband objected to any new evidence on remand. Neither the standing objection nor the motion in limine “sought to preclude the court from considering any new evidence regarding the marital value of Eye Columbus as of the de facto termination date.” The amended decree did not explain why the trial court excluded consideration of the Smith testimony and report, and neither party objected to either the testimony nor the report. Therefore, the trial court abused its discretion in excluding the testimony and report. 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.” (Higgins) “[B]ecause 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.”
However, there was no need for the trial court to consider new evidence regarding the value of Eye Columbus. There was ample evidence in the record. The trial court must proceed from the point at which the error occurred. (State v. Chinn) The trial court erred by sustaining an objection the husband never made. “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)
The first assignment of error was sustained, which rendered the second assignment moot.
Third assignment—spousal support.
The third assignment was that the trial court abused its discretion by failing to retain jurisdiction to modify the spousal support award. Ohio law required the trial court to specifically have a provision to allow it to modify an award in order to do so. Thus, a trial court did not have jurisdiction to modify a spousal award unless it was specified in the decree. (Donohue v. Donohue) Abuse of discretion was not automatically assumed where there was a definite period to the spousal support. The appellate court must determine the totality of the circumstances and the facts of the particular case. There was an abuse of discretion where there was a likelihood that the economic circumstances of either party may change significantly within the time of the support or alimony.
Neither decree indicated why the trial court did not retain jurisdiction. The trial court found that the husband’s “business fluctuated throughout the years preceding trial.” But the trial court did not indicate whether the fluctuations would impact the husband’s ability to pay the support. Such a fluctuation or decline will not obligate the trial court to reserve jurisdiction to modify support.
Having determined that the husband’s income declined by over $200,000 in the year before the trial and not explaining why that decrease would not impact the husband’s ability to pay support, the trial court abused its discretion. Thus, the third assignment of error was sustained and thus was remanded to explain why it did not reserve jurisdiction to modify support. “Depending on the court’s reasoning, it may alter its reservation of jurisdiction to modify the spousal support award if necessary.”