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Berger v. Berger

Court of Appeals of Ohio, Eleventh District, Geauga

December 29, 2017

SANDRA L. BERGER, Plaintiff-Appellant/ Cross-Appellee,
v.
THEODORE J. BERGER, JR., Defendant-Appellee/ Cross-Appellant.

         Appeal from the Geauga County Court of Common Pleas, Domestic Relations Division, Case No. 12 D 000254.

          Sandra L Berger, pro se, (Plaintiff-Appellant/Cross-Appellee).

          Deanna L DiPetta and Amy M. Keating, Zashin & Rich Co., L.P.A., Ernst & Young Tower (For Defendant-Appellee/Cross Appellant).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} 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 modified.

         {¶2} 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. Id.

         {¶3} 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.

         {¶4} Sandra asserts two assigned errors:

         {¶5} "[1] The trial court erred as a matter of law and abused its discretion in its determination as to the valuation of Dreison.

         {¶6} "[2.] The trial court erred as a matter of law and abused its discretion in its determination of spousal support."

         {¶7} Theodore raises five assignments of error:

         {¶8} "[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.

         {¶9} "[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 Civ.R. 52.

         {¶10} "[3.] The trial court abused its discretion in the amount of its December 30, 2016 spousal support award.

         {¶11} "[4.] THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO SET FORTH A SPECIFIC AND CERTAIN TERMINATION DATE FOR APPELLEE'S SPOUSAL SUPPORT OBLIGATION.

         {¶12} "[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."

         {¶13} 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 support).

         {¶14} "'[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.

         {¶15} 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.

         {¶16} 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 Wilson's testimony.

         {¶17} 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.

         {¶18} 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 ΒΆ24-69. Further, we previously rejected Sandra's argument that the court erred in adopting ...


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