from Union County Common Pleas Court Domestic Relations
Division Trial Court No. 15-DR-0076
E. Michel for Appellant
Anthony W. Greco ad Aaron E. Kenter for Appellee
Defendant-Appellant, G. Ralph Elliott ("Ralph")
appeals the January 26, 2017 Final Judgment Entry/Decree of
Divorce issued by the Union County Court of Common Pleas,
Domestic Relations Division, granting him a divorce from
Virginia Golan-Elliott ("Virginia"). On appeal,
Ralph assigns as error: (1) the trial court's denial of
temporary support and subsequent spousal support award of
$250 per month; (2) the trial court's failure to make
findings of fact, failure to identify and classify assets,
and failure to credit Ralph with transferring assets to
Virginia; (3) the trial court's determination that the
antenuptial and separation agreements were inapplicable; (4)
the trial court's denial of Ralph's motion to add an
expert to his witness list; and (5) the trial court's
classification and valuations of Virginia and Ralph's
respective residences and their marital debt in regard to the
distributive award. For the reasons that follow, we affirm
the judgment of the trial court.
Ralph and Virginia were married on July 3, 1997. (Doc. No. 66
at 1). They signed an antenuptial agreement the day of their
marriage and both were represented by counsel when the
agreement was signed. (11/01/2016 Tr., Vol. II, at 8-9; Def.
Ex. No. B). At the time of their marriage, Ralph was 61 and
Virginia was 37. (Doc. No. 40 at 3). No children were born as
issue of their marriage. (Doc. No. 66 at 1).
During the course of their marriage, both Ralph and Virginia
were professional realtors and were actively engaged in the
selling of real estate. (Id. at 2). Also during
their marriage, Ralph inherited an interest in real property,
a portion of which ultimately became the parties' marital
residence. (Id. at 3).
In 2013, the parties decided to terminate their marriage by
dissolution and filed a petition and separation agreement in
Logan County, Ohio. (Id. at 2). However, Ralph
failed to appear for the final dissolution hearing and the
case was dismissed. (Id.).
This instant action commenced in Union County when Virginia
filed her complaint for divorce on May 26, 2015 in case
number 15-DR-0076. Ralph filed his answer on June 18, 2015.
However, Ralph also filed a complaint for divorce in Union
County on May 20, 2015, together with a request for temporary
spousal support, in case number 15-DR-0067. On June 24, 2015
the trial court consolidated the divorce cases, and
designated Virginia as the Plaintiff and Ralph as the
Defendant in case number 15-DR-0076. On May 5, 2016 the trial
court denied Ralph's motion for temporary spousal
The matter proceeded to a contested final hearing on October
31st and November 1st, 2016. (Doc. No. 66 at 1). From this
hearing the trial court issued its Final Judgment
Entry/Decree of Divorce (the "Decree") on January
26, 2017. In the Decree Virginia and Ralph were granted a
divorce from each other on the grounds of incompatibility.
It is from this Decree that Ralph appeals, presenting the
following assignments of error for our review:
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE HUSBAND BY
DENYING TEMPORARY SUPPORT AND SUBSEQUENTLY AWARDING $250 PER
MONTH IN SPOUSAL SUPPORT TO START YEARS AFTER THE START DATE
UNDER THE SEPARATION AGREEMENT.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE HUSBAND BY
FAILING TO MAKE FINDINGS OF FACT AS TO THE BUSINESS ASSETS,
FAILING TO IDENTIFY AND CLASSIFY THESE ASSETS, AND FAILING TO
CREDIT THE HUSBAND FOR THE TRANSFER OF THOSE ASSETS TO THE
WIFE BY MEANS OF A DISTRIBUTIVE AWARD AND SUPPORT.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE HUSBAND BY
CONCLUDING THAT THE ANTENUPTIAL AND SEPARATION AGREEMENTS
WERE INAPPLICABLE IN DETERMINING SUPPORT AND EQUITABLE
DISTRIBUTION OF MARITAL AND SEPARATE PROPERTY AND
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE HUSBAND WHEN IT
DENIED THE HUSBAND'S MOTION TO ADD AN APPRAISAL EXPERT TO
THE WITNESS LIST
AND ADMISSION OF HIS REPORTS ON THE VALUE OF THE RESIDENCES
OF THE PARTIES.
ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE HUSBAND IN ITS
DETERMINATION OF THE CLASSIFICATION AND VALUE OF THE
WIFE'S AND HUSBAND'S RESIDENCE AND MARITAL DEBT AND
Due to the nature of the assignments of error, we elect to
address them out of order, starting with Ralph's third
assignment of error first.
Assignment of Error
In his third assignment of error, Ralph argues that the trial
court erred by concluding that the parties' antenuptial
and separation agreements were inapplicable in determining
support and an equitable distribution of marital and separate
property. Specifically, Ralph asserts that because both
parties entered into the antenuptial agreement in 1997 and
were represented by counsel, the agreement must be enforced.
With respect to the separation agreement, Ralph argues that
since each party was represented by counsel at the time they
entered into the agreement, and because the agreement
provided that it would remain in effect even if no final
decree was issued by the trial court, he was entitled to have
it enforced. For the reasons that follow, we disagree.
Court's Ruling on the Agreements
The trial court addressed the parties' Antenuptial and
Separation Agreements together in its final divorce decree.
(Doc. No. 66 at 2). The trial court found that even though
the Antenuptial Agreement may have received some "lip
service" in the divorce pleadings, the agreement was
never attached to or made a part of any pleading until the
final hearing. (Id.). With regards to the Separation
Agreement, the trial court found that such agreement was
entered into by Ralph and Virginia as part of their
dissolution proceeding and was voided by Ralph when the
petition was dismissed due to his failure to appear at the
final dissolution hearing. (Id.). Specifically, as
to each agreement, the trial court ruled as follows:
The Trial Court is of the view that neither party has
abided by either agreement and both have demonstrated their
intent not to comply with the terms thereof. The Court
finds it would be inequitable to both parties to selectively
enforce all or any part of either the antenuptial or
separation agreements and finds both agreements inapplicable
in this divorce.
(Emphasis added). (Id.).
"It is well settled in Ohio that public policy allows
the enforcement of prenuptial agreements." Fletcher
v. Fletcher, 68 Ohio St.3d 464, 466, 1994-Ohio- 434, 628
N.E.2d 1343. The Ohio Supreme Court has held that
"[s]uch agreements are valid and enforceable (1) if they
have been entered into freely without fraud, duress,
coercion, or overreaching; (2) if there was full disclosure,
or full knowledge and understanding of the nature, value and
extent of the prospective spouse's party; and (3) if the
terms do not promote or encourage divorce or profiteering by
divorce." Gross v. Gross, 11 Ohio St.3d 99, 464
N.E.2d 500 (1984), paragraph two of the syllabus.
"Although a prenuptial agreement must meet these three
'special' conditions, in all other respects,
prenuptial agreements are contracts, and the law of contracts
will generally apply to their application and
interpretation." Johnson v. Johnson, 2nd Dist.
Miami No. 2010 CA 2, 2011-Ohio-500, ¶ 10 citing
Fletcher at 467. An appellate court will affirm a
trial court's interpretation of such contract if the
record contains competent evidence to support it.
Id. "The primary role of the court in reviewing
a contract is to ascertain and give effect to the intent of
the parties." Id. at ¶ 11, citing
Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos.,
86 Ohio St.3d 270, 273, 1999-Ohio-162, 714 N.E.2d 898 (1998).
In ascertaining the intent of the parties, the court must
look to the language of the contract. Id. If the
contract language is clear and unambiguous, no interpretation
or construction is necessary, however, if the contract is
susceptible to two or more reasonable interpretations, it is
ambiguous. Id. "Whether a contract's terms
are clear or ambiguous is a question of law for the
court." Id. citing Westfield Ins. Co. v.
HULS Am., Inc., 128 Ohio App.3d 270, 291, 714 N.E.2d 934
"The parties to an antenuptial agreement are in a
fiduciary relationship to one another and, thus, are under a
mandatory duty to act in good faith with a high degree of
fairness and disclosure of all circumstances which materially
bear on the antenuptial agreement." Rowland v.
Rowland, 74 Ohio App.3d 415, 420, 599 N.E.2d 315 (4th
Dist.1991) citing Gross, supra. See also, Cohen v. Estate
of Cohen, 23 Ohio St.3d 90, 491 N.E.2d 698 (1986).
"'Although antenuptial agreements are not per
se invalid, they must meet certain minimum standards of
good faith and fair dealing. If the agreement is fair and
reasonable under the circumstances, it will be deemed
enforceable.'" Id. quoting Zimmie v.
Zimmie, 11 Ohio St.3d 94, 98, 464 N.E.2d 142 (1984).
As an initial matter, we find that while both Ralph and
Virginia filed separate and competing complaints for divorce,
neither party attached a copy of the Antenuptial Agreement to
their divorce complaint. Further, Ralph failed to attach the
Antenuptial Agreement to his answer to Virginia's
complaint for divorce and neither party addressed the
Antenuptial Agreement in any substantive fashion prior to the
filing of their pretrial statements. (Doc. No. 60; Doc. No.
63). More specifically, neither Ralph nor Virginia filed a
motion with the trial court, at any time, to enforce
or challenge the validity of the Antenuptial Agreement. As
such, the trial court's characterization that the
parties' only gave "lip service" to the
antenuptial agreement is on target and representative of the
parties' lackadaisical approach to the enforcement of
their antenuptial agreement.
Nevertheless, the trial court was on notice that an
antenuptial agreement existed between the parties presenting
property issues for it to consider.
However, as noted by the trial court in its Decision,
Virginia and Ralph only sought selective enforcement of their
prenuptial agreement. As such, the trial court stated:
The Court is of the view that neither party has abided by
either agreement and both have demonstrated their intent not
to comply with the terms thereof. The Court finds it would be
inequitable to both parties to selectively enforce all or any
part of either the Antenuptial or Separation Agreements, and
finds both agreements inapplicable in this divorce.
(Doc. No. 66 at 2).
"It is a fundamental rule of equity that he who seeks
equity should not be allowed to profit from his own
wrongdoing." Langer v. Langer, 123 Ohio App.3d
348, 355, 704 N.E.2d 275 (2nd Dist. 1997), cause
dismissed, 80 Ohio St.3d 1473, 687 N.E.2d 470 (1997)
citing Klaustermeyer v. Cleveland Tr. Co., 89 Ohio
St. 142, 148, 105 N.E. 278 (1913). In conducting our review
of whether or not the trial court erred by declaring the
parties' Antenuptial Agreement "inapplicable, "
we are guided by the principles set forth by the Ohio Supreme
Court in Cohen that the requirements of good faith
and fair dealing in the making of an Antenuptial Agreement
also exist in the performance of it. Cohen, supra.
And in this matter the trial court determined that neither
Virginia nor Ralph had abided by its terms.
we find the trial court acted within its discretion to
determine the parties' Antenuptial Agreement was
"inapplicable." Accordingly, we overrule this