Court of Appeals of Ohio, Eleventh District, Geauga
SANDRA L. BERGER, Plaintiff-Appellant/ Cross-Appellee,
THEODORE J. BERGER, JR., Defendant-Appellee/ Cross-Appellant.
from the Geauga County Court of Common Pleas, Domestic
Relations Division, Case No. 12 D 000254.
L Berger, pro se, (Plaintiff-Appellant/Cross-Appellee).
L DiPetta and Amy M. Keating, Zashin & Rich Co., L.P.A.,
Ernst & Young Tower (For Defendant-Appellee/Cross
R. WRIGHT, J.
Appellant/Cross-Appellee, Sandra L. Berger NKA Sandra L.
Evans, appeals the trial court's decision on remand
following a prior appeal to this court.
Appellee/Cross-Appellant, Theodore J. Berger, cross-appeals.
We modify the trial court's decision and affirm as
We issued our prior decision in this case in December 2015
and affirmed in part, reversed in part, and remanded this
case finding three errors. Berger v. Berger, 11th
Dist. Geauga No. 2014-G-3191, 2015-Ohio-5519, 57 N.E.3d 166,
¶14. The factual and procedural history is fully set
forth in our prior opinion and will not be recited here.
Following remand, the trial court issued its new decision
December 30, 2016. In response to our 2015 opinion, the trial
court reconsidered its valuation of Dreison International,
Inc. and included the additional testimony of Gary Wilson; it
provided additional security measures to ensure
Theodore's property division payments to Sandra; and it
reconsidered its spousal support award based on the evidence
in the record.
Sandra asserts two assigned errors:
" The trial court erred as a matter of law and abused
its discretion in its determination as to the valuation of
"[2.] The trial court erred as a matter of law and
abused its discretion in its determination of spousal
Theodore raises five assignments of error:
"[1.] The trial court erred in failing to provide a
sufficient basis for its December 30, 2016 spousal support
award and by issuing an award in contravention of this
court's prior decision.
"[2.] The trial court committed reversible error in
failing to issue separate findings of fact and conclusions of
law in response to the appellee's timely request under
"[3.] The trial court abused its discretion in the
amount of its December 30, 2016 spousal support award.
"[4.] THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING
TO SET FORTH A SPECIFIC AND CERTAIN TERMINATION DATE FOR
APPELLEE'S SPOUSAL SUPPORT OBLIGATION.
"[5.] The trial court erred and abused its discretion by
requiring appellee to pledge his stock to appellant and
produce corporate tax returns to appellant to allegedly
secure his property division payments."
A majority of the parties' arguments concern matters
entrusted to the discretion of the trial court, which we
review for an abuse of discretion. Abram v. Abram,
9th Dist. Medina No. 3233-M, 2002-Ohio-78 (stating that
absent an abuse of discretion, an appellate court will not
reverse a trial court's decision regarding spousal
"'[T]he term "abuse of discretion" is one
of art, connoting judgment exercised by a court, which does
not comport with reason or the record.' State v.
Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089,
2009 WL 1177050, ¶ 30, citing State v.
Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362
(1925). * * *[A]n abuse of discretion is the trial
court's 'failure to exercise sound, reasonable, and
legal decision-making.' State v. Beechler, 2d
Dist. No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶
62, quoting Black's Law Dictionary (8
Ed.Rev.2004) 11. When an appellate court is
reviewing a pure issue of law, 'the mere fact that the
reviewing court would decide the issue differently is enough
to find error (of course, not all errors are reversible. Some
are harmless; others are not preserved for appellate review).
By contrast, where the issue on review has been confined to
the discretion of the trial court, the mere fact that the
reviewing court would have reached a different result is not
enough, without more, to find error.' Id. at
¶ 67." Ivancic v. Enos, 11th Dist. Lake
No. 2011-L-050, 2012-Ohio-3639, 978 N.E.2d 927, ¶70.
Sandra's first assigned error contains three arguments
regarding the valuation of Theodore's business. She
argues the trial court erred in its valuation of Dreison on
remand because it did not consider Wilson's purchase
offer; it erred in adopting Davis' valuation; and it
erred in not considering additional evidence on this issue,
i.e., the company's value set forth in Theodore's
2014 prenuptial agreement. We disagree.
We held in our prior decision that the trial court erred in
excluding Wilson's testimony, finding that it was
improperly excluded as irrelevant, and instead explained,
"[a]lthough there may have been issues regarding
Wilson's credibility as a witness or concerns regarding
how he arrived at this offer, these issues go to his
credibility * * *, and as such, could have been addressed on
cross-examination." Berger, supra, at ¶15.
Thus, we reversed and remanded the issue to the trial court
for it to reconsider the company's value upon including
Contrary to Sandra's argument, the trial court considered
Wilson's testimony, who testified on remand via video
conference consistent with our prior opinion. The trial
court, however, found his testimony unpersuasive and not
compelling as to the company's valuation. Its decision,
in weighing and considering competing evidence on this issue,
was well within its discretion.
The trial court was likewise within its discretion in
believing and relying on Davis' valuation of Dreison over
that of Ranallo's valuation. "Evaluating evidence
and assessing credibility are primarily for the trier of fact
* * *." (Citation omitted.) Moore v. Moore, 83
Ohio App.3d 75, 78, 613 N.E.2d 1097, (9th Dist.1992). And
absent an abuse of discretion, we are precluded from
substituting our opinion for that of the trial court.
Ivancic, supra, ¶70. The trial court's
findings in this regard are detailed in our prior decision.
Berger, supra, at ¶24-69. Further, we
previously rejected Sandra's argument that the court
erred in adopting ...