[Cite as Alvarez v. Alvarez, 2016-Ohio-3432.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

CATHERINE L. ALVAREZ                                C.A. No.       27821

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
OSCAR C. ALVAREZ                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   2007-04-1429

                                 DECISION AND JOURNAL ENTRY

Dated: June 15, 2016



        WHITMORE, Presiding Judge.

        {¶1}     Appellant Oscar Alvarez (“Husband”) appeals from orders of the Summit County

Domestic Relations Court ruling on post-decree motions filed by Husband and Appellee

Catherine Alvarez (“Wife”). This Court affirms in part and reverses in part.

                                                I

        {¶2}     The parties’ 30-year marriage ended in divorce pursuant to an uncontested

divorce decree entered by the domestic relations court in February 2009. The parties’ three

children were emancipated at the time of the divorce.

        {¶3}     The divorce decree incorporated the parties’ separation agreement. Under the

decree, Husband assumed spousal support consisting of (1) “Level One” support of $7,000 per

month and (2) “Level Two” support of “fifty percent (50%) of the gross amount of all

compensation * * * over and above [Husband’s] base compensation * * * by way of bonus.”
                                                  2


       {¶4}    Among other things, the decree also: (1) granted Wife a judgment regarding a

2008 bonus Husband had received from his then-employer; (2) granted Wife a judgment on

temporary support arrearages; (3) established Husband’s obligation to pay certain taxes; (4)

required Husband to make certain vehicle lease payments; (5) required Husband to make

payments due on the first mortgage on the marital residence; (6) required Wife to make

payments due on the second mortgage on the marital residence; (7) obligated the parties to divide

the cost of expenses for major maintenance and repair of the marital residence; (8) granted Wife

the right to live in the marital residence; and (9) required Wife to pay for routine maintenance,

taxes, insurance, assessments, and utilities for the marital residence.

       {¶5}    Husband immediately began to default on his obligations under the decree. Wife

filed a motion for contempt in March 2009 dealing with, inter alia, Husband’s failure to pay

Level One spousal support. Husband filed a motion to decrease support, citing an annual

reduction in base pay from $205,000 to $185,000. The parties resolved these motions in an

agreed judgment entry dated February 4, 2010.

       {¶6}    The February 4, 2010 judgment entry, among other things, retained Level One

spousal support at $7,000 per month. The judgment entry also granted Wife a judgment of

$24,398. Of that $24,398, $16,404 was based on past due Level One support and Husband’s

failure to meet his obligations related to: the 2008 bonus; temporary spousal support arrearages;

and driveway repairs.

       {¶7}    The parties continued to have financial disputes under the decree and also the

February 4, 2010 agreed judgment entry. They filed several motions:

               (1)      Wife’s motion for contempt (March 2010);

               (2)      Husband’s motion to terminate or reduce spousal support
                        (April 2010); and
                                                  3



               (3)      Husband’s motion for contempt (July 2010).

       {¶8}    A magistrate held a hearing on the motions during three days in March, April, and

July 2011. The parties filed briefs in lieu of closing arguments. The magistrate issued a decision

on January 5, 2012. The trial court adopted the magistrate’s decision in a judgment entry on the

same date. The court:

               (1)      found Husband “in contempt of court for his failure to pay
                        support, maintenance/repairs, taxes, and [make] payments
                        on the judgment ordered,” sentenced Husband to 30 days in
                        jail suspended on conditions, and awarded attorney’s fees
                        to wife;

               (2)      denied Husband’s motion to terminate or reduce spousal
                        support; and

               (3)      denied Husband’s motion for contempt.

       {¶9}    Husband filed objections to the magistrate’s decision. He filed a supplemental

memorandum in accordance with local rules.

       {¶10} The trial court overruled most of Husband’s objections on February 23, 2015, but

sustained two objections that were remanded to the magistrate for hearing. The parties resolved

the remanded issues in a May 19, 2015 stipulated judgment entry, leaving undisturbed the trial

court’s earlier rulings on the other objected matters.

       {¶11} Taking into account the parties’ May 19, 2015 stipulation resolving the remanded

issues, the court found, among other things, that Husband “failed to pay the following

obligations and/or amounts”: (1) $16,531.17 in spousal support for September 2009 through

February 2011; (2) $8,610.98 due to Wife from Husband’s 2009 bonus; (3) $4,350 in

maintenance and repair items; and (4) $1,062.43 in State of Ohio taxes. The court also found

that Husband “failed to pay on the judgment” resulting in a “deficiency for the period of
                                                4


September 2009 through February 2011 of $26,028.35 on the judgment previously granted of

[$41,885] (i.e., paid $15,826.65 for the period of September 2009 through September 2010).”

The “judgment previously granted of $41,885.00” appears to consist of a $17,457 judgment set

forth in the divorce decree and the $24,398 judgment set forth in the February 4, 2010 agreed

judgment entry.

       {¶12} The May 19, 2015 judgment entry was a final appealable order. Husband timely

appealed from the orders of January 5, 2012, February 23, 2015, and May 19, 2015. He raises

five assignments of error for our review. We reorder his assignments of error to facilitate

analysis.

                                               II

                               Assignment of Error Number Four

       THE TRIAL COURT ERRED IN DETERMINING THAT IT LACKED
       JURISDICTION TO MODIFY SPOUSAL SUPPORT BASED UPON NO
       SUBSTANTIAL CHANGE OF CIRCUMSTANCES.

       {¶13} In his forth assignment of error, Husband argues that the trial court erred in

determining that it did not have jurisdiction to modify spousal support. We disagree.

       {¶14} Husband requested modification of his spousal support obligation during a brief

period of unemployment in 2010. Husband’s employer, Lenovo, terminated him on April 30,

2010. Husband began working in a new position with Abbott Labs on June 28, 2010, less than

two months after being terminated from Lenovo. Husband voluntarily resigned from Abbott

Labs less than three months after taking that position to accept a new, higher-paying position

with Loral Space Systems (“Loral”).

       {¶15} Husband earned a base salary of $185,000 at Lenovo before he was terminated at

the end of April. When he was terminated he received $14,230.77 for severance pay and
                                                 5


$3,557.69 for vacation pay.     Less than two months after his termination, Husband earned the

same annual base pay of $185,000 in his new position at Abbott Labs. When Husband resigned

from Abbott Labs three months later and began in the position at Loral, he received a $20,000

hiring bonus. Beginning in September 2010 through the date of the hearing, Husband earned an

annual base pay of $200,000, which is $15,000 more than he had been earning at both Lenovo

and Abbott Labs.

       {¶16} Husband sought a spousal support modification for the month of June 2010 during

which he did not receive any income. To the extent Husband asserts on appeal that he is also

entitled to a modification for May 2010, we find that he waived any claim for a modification

during May. Husband’s counsel conceded at hearing that any modification would be appropriate

for June 2010 only, stating that “we’re willing to accept that there’s probably only one month

that he’s entitled to a modification.”

       {¶17} The trial court held that it lacked jurisdiction to consider a modification of spousal

support due to the lack of a substantial change in circumstances. The court found that Husband

“was paid substantially the same income [during] the time frame of his motion to modify his

support obligation” considering Husband’s base salary at each of his employers, his severance

pay from Lenovo, and his hiring bonus from Loral.

       {¶18} We review de novo a trial court’s decision regarding its jurisdiction to modify

support obligations. Smith v. Smith, 9th Dist. Summit No. 21204, 2003-Ohio-1478, ¶ 10, citing

McClure v. McClure, 119 Ohio App.3d 76, 79 (4th Dist.1997). Thus, we conduct a plenary

review of the record to determine whether the trial court possessed jurisdiction in this matter.

       {¶19} The Supreme Court of Ohio has declared that trial courts only have jurisdiction to

modify a spousal support award when the divorce decree “expressly reserved jurisdiction to
                                               6


make the modification” and the trial court “finds (1) that a substantial change in circumstances

has occurred and (2) that the change was not contemplated at the time of the original decree.”

Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, paragraph two of the

syllabus. “Substantial” in the context of a spousal support modification proceeding has been

described as “drastic * * * material, * * * and significant.” Id. at ¶ 32.    Only if the court

determines that there was a substantial change that was not contemplated at the time of the

original decree may the court consider whether the support order should be modified in

accordance with R.C. 3105.18.

       {¶20} Husband did not sustain his burden to show that he experienced the substantial

change in circumstances necessary to establish the trial court’s jurisdiction to consider a

modification of his support obligation for June 2010. See Manos v. Manos, 9th Dist. Summit

No. 27335, 2015-Ohio-2932, ¶ 14 (the party requesting a modification of spousal support has the

burden of establishing the need for a modification), citing Tremaine v. Tremaine, 111 Ohio

App.3d 703, 706 (2d Dist.1996). Even disregarding Husband’s severance pay from Lenovo,

which was a basis for Husband’s admission at hearing that he is not entitled to a support

modification for May 2010, Husband’s $20,000 signing bonus from Loral in September is more

than the $15,417 gross pay Husband lost during the month of June when he was unemployed

($185,000 [salary at Lenovo]/12 = $15,417). Additionally, beginning with his September 2010

employment with Loral, Husband’s gross monthly pay increased by approximately $1,250 per

month over what Husband earned at Lenovo at the time he promised to pay $7,000 each month

in Level One spousal support ($200,000 [salary at Loral]/12 - $15,417 [monthly gross pay at

Lenovo] = $1,250). Given the $20,000 bonus and the additional income that Husband received

from Loral close in time to the only month for which he seeks a modification of spousal support,
                                                 7


we cannot find that Husband presented a change of circumstances that should be regarded as

“drastic * * * material, * * * and significant.” See Manelbaum at ¶ 32.

       {¶21} We also find that Husband has not met his burden to show that a one month

period of unemployment was not contemplated at the time the Level One support obligation was

established. At hearing, Husband testified regarding the relevant job market when he agreed to

pay $7,000 monthly in Level One spousal support. He testified, “The market for employment

has been very difficult since 2008. Everyone knows that. Companies have been laying off.”

Given Husband’s knowledge that “[c]ompanies have been laying off,” we cannot find that

Husband met his burden to show that he did not contemplate even a brief period of

unemployment when he stipulated to the support obligation.

       {¶22} We conclude that Husband did not meet his burden to show that his

unemployment during June 2010 was a substantial change in circumstances that was not

contemplated when he agreed to pay $7,000 monthly in Level One spousal support. On this

basis, we determine that the trial court did not err in finding that it lacked jurisdiction to modify

spousal support. Accordingly, Husband’s fourth assignment of error is overruled.

                                Assignment of Error Number Five

       THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF
       “UNCLEAN HANDS” AS A BAR TO HUSBAND’S MOTION TO MODIFY
       SPOUSAL SUPPORT.

       {¶23} Husband argues in his fifth assignment of error that the trial court erred in

applying the doctrine of “unclean hands” as a basis for denying Husband’s motion to modify

spousal support. We disagree.

       {¶24} As an initial matter, it is not clear that the trial court in fact used the equitable

doctrine of “unclean hands” as a basis to deny Husband’s motion to modify spousal support.
                                                  8


Instead, the magistrate’s reference to “clean hands” appears to have been in response to

Husband’s complaints about his financial hardships.           For example, Husband complained

throughout the hearing that certain income that he was to receive was being captured by the

Child Support Enforcement Agency, at times leaving nothing for himself. We agree with Wife’s

assessment that “[i]t appears that at least with respect to her spousal support determination, the

[m]agistrate’s [d]ecision [as adopted by the trial court] was stating that the trial court would not

recognize [Husband’s] claimed ‘hardships’ that were occurring precisely because [Husband] had

historically skirted his obligations under the divorce decree and prior orders.” We also agree that

“[t]here is nothing remarkable in such an analysis.” See Schaaf v. Schaaf, 9th Dist. Medina No.

05CA0060-M, 2006-Ohio-2983, ¶ 34 (“[T]his Court is hard pressed to see how, outside of his

poor credit and indebtedness due largely to his own failure to pay support payments, [former

husband] is in such dire financial straits to warrant termination of his support obligation.”)

       {¶25} Even if we assume for argument’s sake that the trial court misapplied the doctrine

of unclean hands, the error was harmless. See Civ.R. 61. We have found that the trial court

properly determined that it did not have jurisdiction to modify Husband’s spousal support

obligation. Accordingly, any error by the trial court with respect to an alternative reason for

denying Husband’s motion to modify spousal support would not affect the court’s judgment.

Husband’s fifth assignment of error is therefore overruled.

                                Assignment of Error Number Three

       THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
       MATTER OF LAW IN FINDING HUSBAND IN CONTEMPT FOR FAILURE
       TO PAY ON THE JUDGMENT PREVIOUSLY [ISSUED] AND BASED UPON
       ERRORS OF FACT IN THE SUPPORTING FINDINGS.

       {¶26} In his third assignment of error, Husband argues that the trial court erred as a

matter of law and also abused its discretion in finding Husband in contempt for willful failure to
                                                 9


pay spousal support and on the judgment previously granted, and for repairs and taxes. We

disagree.

       {¶27} In his opening appellate brief, Husband argued that the trial court’s contempt

finding constituted legal error to the extent it was based on failure to pay on arrearages “which

had been previously reduced to judgment.” Husband asserted that the court was “constitutionally

barred” by Section 15, Article I of the Ohio Constitution from invoking its contempt powers

“once an arrearage [was] reduced to judgment.”           However, in his reply brief, Husband

recognized that this Court has held that it is constitutionally permissible for a trial court to use

contempt sanctions to enforce a judgment for spousal support arrearages. In Collette v. Baxter,

9th Dist. Summit No. 25821, 2012-Ohio 1333, we noted that lump-sum judgments for spousal

support arrearages are not “in the nature of ordinary money judgments or business debt” that are

subject to the proscriptions of Section 15, Article I of the Ohio Constitution. Id. at ¶ 10.

Accordingly, Husband’s assertion that the court’s contempt judgment constituted legal error is

not well-taken.

       {¶28} Husband also argues on appeal that the trial court abused its discretion in holding

Husband in contempt for defaulting on his court-ordered obligations. We review a trial court’s

contempt finding for an abuse of discretion.         Morrow v. Becker, 9th Dist. Medina No.

11CA0066-M, 2012-Ohio-3875, ¶ 47. An appellate court will not reverse a finding of contempt

unless the trial court’s decision was unreasonable, arbitrary, or unconscionable. See Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219 (1983) (defining abuse of discretion).

       {¶29} Contrary to Husband’s claim, the record is replete with evidence that Husband

willfully defaulted on his obligations under both the decree and the February 4, 2010 agreed

judgment entry. Husband stipulated that he had “failed to pay on the judgment [under the decree
                                                 10


and February 4, 2010 entry] and there exists a deficiency of $26,028.35 on the judgment

previously granted of $41,885.00 (i.e., paid $15,826.65 for the period of September 2009 through

September 2010).” Husband also stipulated that he failed to pay $4,350 of maintenance and

repair items. Moreover, Husband did not pay his obligations toward state taxes under the decree,

and did not present any evidence that the obligation was discharged by agreement of the parties.

Further, as we discuss below in connection with Husband’s first assignment of error, Husband

did not pay Wife her full share of 2009 bonus payments that he received as Level Two spousal

support under the decree.

       {¶30} The record also demonstratively shows that Husband’s failure to meet his

obligations to Wife was without justification, as he was able to maintain an affluent lifestyle

during the same period of time that he did not meet his obligations under the decree and

February 4, 2010 agreed entry. Among other things, Husband: paid more than $1,300 a month in

car payments for himself and his new wife; vacationed in Mexico during June 2010 (the same

month during which Husband was unemployed and for which he sought a modification of

spousal support); and enjoyed a gym membership at a cost of approximately $500 a month.

       {¶31} Additionally, Husband failed to notify the trial court or Wife of his change of

address. He used his parents’ El Paso, Texas address on court filings into 2010, even though he

had been living with his new wife in Sausalito, California since March 2009. Husband testified

that his parents only rarely (if ever) forwarded mail. Husband refused to permit his legal counsel

to accept service of process on his behalf. As a result, Wife experienced considerable difficulty

and incurred significant expense in achieving personal service on Husband of her motion for

contempt while trying to enforce her rights under the trial court’s orders.
                                               11


       {¶32} Under these circumstances, there is no basis to conclude that the trial court’s

contempt ruling was “unreasonable, arbitrary or unconscionable.” Blakemore, 5 Ohio St.3d at

219. Therefore, we find that the trial court did not abuse its discretion in finding Husband in

contempt.

       {¶33} We conclude that the trial court’s finding of contempt was neither an error of law

nor an abuse of discretion. On this basis, Husband’s third assignment of error is overruled.

                               Assignment of Error Number One

       THE TRIAL COURT’S DETERMINATION OF THE AMOUNT OF
       HUSBAND’S 2009 BONUS WAS CONTRARY TO THE LANGUAGE OF
       THE DECREE, INCONSISTENT WITH THE AGREED ORDER OF
       FEBRUARY 4, 2010, AND AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶34} In his first assignment of error, Husband claims that the trial court erred in

determining the amount of his 2009 bonus to be paid as Level Two support. He argues that (1)

certain payments he received from his employer did not constitute “the gross amount of all

compensation Husband receives, over and above his base compensation * * * by way of bonus”

within the meaning of the decree, and (2) any arrearage arising from a failure to pay Wife

amounts due to her from the 2009 bonus was resolved under the February 4, 2010 agreed

judgment. We disagree.

       {¶35} The decree and February 4, 2010 order provide for both Level One and Level

Two spousal support. Husband agreed to “pay * * * for Level One [s]pousal [s]upport the sum

of [$7,000] per month * * * and for Level Two [s]pousal [s]upport, fifty percent (50%) of the

gross amount of all compensation Husband receives, over and above his base compensation * * *

by way of bonus.”
                                                12


       {¶36} Having conducted a de novo review, we find that the definition of Level Two

spousal support is ambiguous and reasonably subject to more than one interpretation with respect

to the term “by way of bonus.” See Erwin v. Erwin, 9th Dist. Wayne No. 13CA0009, 2014-

Ohio-874, ¶ 14 (“whether a contract is ambiguous is a question of law that this Court reviews de

novo”). Husband believes that only compensation that his employer awarded as a merit bonus

“based upon production or earnings” is subject to Level Two spousal support. He argues that the

trial court “improperly reclassified” a cost of living allowance, hardship allowance, moving

reimbursement, and non-tax cash adjustment as amounts paid to him “by way of bonus” in 2009

when they were really reimbursements. Wife, on the other hand, argues that a bonus includes

any money or an equivalent given in addition to base compensation, and therefore is not limited

to a merit bonus. She claims that none of the amounts that the trial court included in Husband’s

2009 Level Two spousal support as payments “by way of bonus” were direct expense

reimbursements, but were instead taxable income paid to Husband in excess of his base salary.

Both Husband and Wife advance reasonable interpretations of the meaning of the phrase “by

way of bonus” resulting in ambiguity that cannot be resolved within the four corners of the

parties’ agreements.

       {¶37} “Whenever a clause in a separation agreement is deemed to be ambiguous, it is

the responsibility of the trial court to interpret it.” In re Marriage of Seders, 42 Ohio App.3d

155, 156 (9th Dist.1987). The trial court “has the power to hear the matter, clarify the confusion,

and resolve the dispute.” She v. Huang, 10th Dist. Franklin No. 98AP-153, 1998 WL 655409, *1

(Sept. 22, 1998), citing Seders at 157.     “The trial court has broad discretion in clarifying

ambiguous language [in a separation agreement] by considering not only the intent of the parties

but the equities involved.” Musci v. Musci, 9th Dist. Summit No. 23088, 2006-Ohio-5882, ¶ 42.
                                                13


Therefore, “[a]bsent a showing of an abuse of discretion, an interpretive decision by the trial

court cannot be disturbed upon appeal.” Musci at ¶ 42, citing Blakemore, 5 Ohio St.3d at 219.

        {¶38} Here, the trial court did not abuse its discretion in adopting Wife’s interpretation

of the phrase “by way of bonus” when determining the amount of Husband’s 2009 bonus to be

classified as Level Two spousal support. The trial court had the benefit of the transcript of the

magistrate’s three-day hearing, the magistrate’s report, Husband’s objections and briefing in

support, and Wife’s response. After reviewing the record that was before the trial court, we

cannot say that the trial court’s ruling was unreasonable, arbitrary, or unconscionable in light of

the parties’ intent and the equities.

        {¶39} Further, the court did not abuse its discretion in determining that the February 4,

2010 agreed judgment entry did not resolve all 2009 Level Two spousal support arrearages. The

agreed judgment entry provided that “[w]ith said judgment, [Husband’s] spousal support

obligation shall be deemed current * * *.” The order was ambiguous in that it did not define

“spousal support obligation” to include Level One support, Level Two support, or both. The trial

court thus had broad discretion to resolve any disputes over the meaning of its own entry. See

Musci at ¶ 42; Henry v. Henry, 9th Dist. Summit No. 27696, 2015-Ohio-4350, ¶ 8 (the trial court

may resolve any good faith confusion pertaining to an ambiguous clause of its own order). The

February 4, 2010 entry addressed a motion for contempt filed by Wife in March 2009 that

involved, inter alia, Husband’s failure to pay Level One spousal support. The motion for

contempt did not raise issues related to Level Two spousal support. Thus, the trial court did not

act in an unreasonable, arbitrary, or unconscionable manner in resolving that the February 4,

2010 order was not designed to relieve Husband of any portion of his 2009 Level Two spousal

support obligation.
                                               14


       {¶40} We conclude that the trial court did not abuse its discretion in determining the

amount of Husband’s 2009 bonus to be paid as Level Two support under the parties’ separation

agreement. Accordingly, Husband’s first assignment of error is overruled.

                                Assignment of Error Number Two

       THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CREDIT
       HUSBAND WITH A GARNISHMENT OF $5,300 RELEASED BY THE
       COURT’S ORDER OF MARCH 22, 2011.

       {¶41} In his second assignment of error, Husband argues that the trial court abused its

discretion when it failed to credit Husband with a garnishment of $5,300. We agree.

       {¶42} On the first day of the three-day hearing before the magistrate, the parties

stipulated that Husband’s support arrearages totaled $10,031.17. Later that same month, but

before the second and third days of the hearing, the trial court issued a judgment entry releasing

$5,300 from escrow to be applied toward Husband’s arrearages.

       {¶43} During a subsequent day of hearing, the trial court restated Husband’s stipulated

arrearages to be $16,531.17 based on the court’s treatment of a $6,500 amount from 2010.

Neither party objected at the hearing.

       {¶44} The trial court used the $16,531.17 figure for Husband’s arrearages in its

judgment entry. It is undisputed that this amount does not take into account the $5,300 that

eventually was released from escrow. It is also undisputed that Husband never received credit

for the $5,300.

       {¶45} Wife argues that that the doctrine of invited error bars Husband from alleging

error based on the court’s failure to credit him for the $5,300. The invited error doctrine

provides that a party may not “’take advantage of an error which he himself invited or induced

the trial court to make.’’’ State v. Carswell, 9th Dist. Summit No. 23119, 2006-Ohio-5210, ¶ 21,
                                                 15


quoting State ex rel Bitter v. Missig, 72 Ohio St.3d 249, 254 (1995). The doctrine requires “more

than mere ‘acquiescence in the * * * erroneous conclusion.’” State v. Campbell, 90 Ohio St.3d

320, 324 (2000), quoting Carrothers v. Hunter, 23 Ohio St.2d 99, 103 (1970). The appellant

must have been “’actively responsible’” for the error or the doctrine does not apply. Campbell at

324, quoting State v. Kollar, 93 Ohio St. 89, 91 (1915).

       {¶46} Here, the trial court restated Husband’s stipulated arrearages as $16,531.17

without giving him credit for the $5,300 released from escrow. There is nothing in the record to

suggest that Husband induced the court’s error. Rather, the record indicates that Husband merely

acquiesced in the court’s erroneous restatement of the stipulated arrearages at the hearing when

he failed to object. Husband withdrew his temporary acquiescence when he filed his written

objections and argued that the trial court erred in failing to give him credit for the $5,300. Under

these circumstances, the doctrine of invited error does not apply.

       {¶47} Wife also argues that the court’s error is harmless because the court erroneously

“also gave [Husband] credit twice for the same $6,500 payment he made to [Wife]” with the

result that Husband received “substantial justice” even without the credit and “ultimately

received a result that is more favorable than what he would have received had the trial court

engaged in errorless fact finding.” (Emphasis deleted.) We decline, however, to analyze alleged

errors in the trial record that Wife did not raise in the proceedings below.

       {¶48} We find that the trial court acted unreasonably in failing to credit Husband with

the $5,300 released from escrow. We therefore remand this matter exclusively for the limited

purpose of applying the $5,300 to Husband’s arrearages. In so doing, we reject Husband’s

alternative argument that he should be allowed to “withdraw the stipulation based upon

subsequent events [i.e., the release of the $5,300 from escrow].” Husband never moved the trial
                                                  16


court to withdraw his stipulation, and he did not argue in his written objections that he should

have been permitted to withdraw his stipulation. Accordingly, Husband has abandoned his right

to pursue such an argument on appeal.            See Wilburn v. Wilburn, 9th Dist. Lorain No.

05CA008798, 2006-Ohio-5820, ¶ 32 (in general, an objection must be timely raised to the trial

court or it is waived for purposes of appeal).

       {¶49} The trial court abused its discretion in failing to give Husband credit for $5,300

released from escrow. For this reason, Husband’s second assignment of error is sustained.

                                                  III

       {¶50} Husband’s first, third, fourth, and fifth assignments of error are overruled.

Husband’s second assignment of error is sustained.             The judgment of the Summit County

Domestic Relations Court is affirmed in part, and reversed in part. This matter is remanded to the

trial court for further action consistent with this opinion.

                                                                         Judgment affirmed in part,
                                                                                  reversed in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                17


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     BETH WHITMORE
                                                     FOR THE COURT




CELEBREZZE, J.
CONCURS.

MOORE, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶51} I concur in the majority’s decision except for the discussion and disposition of the

second assignment of error. I agree that Husband’s second assignment of error is not properly

overruled on the basis of invited error, especially in light of his specific objection to the

magistrate’s decision in which he argued that he was not credited with the $5300 disbursement.

Buttolph v. Buttolph, 9th Dist. Wayne No. 09CA0003, 2009-Ohio-6909, ¶ 21 (“We do not see

how Father ‘invited or induced’ the trial court to exclude the annuity when he in fact objected to

the magistrate’s decision which did not include it.”). However, I disagree that the trial court was

unreasonable in overruling his objection. The trial court concluded that the record supported the

magistrate’s finding and order, and that Husband could not assert new arguments “to support his

assertion of what the original stipulation meant.” See Civ.R. 53(D)(4)(d) (Before ruling on

objections, “the court may hear additional evidence but may refuse to do so unless the objecting

party demonstrates that the party could not, with reasonable diligence, have produced that

evidence for consideration by the magistrate.”). Moreover, the trial court relied, in part, on an
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exhibit (plaintiff’s exhibit 21) pertaining to the stipulation, which was not included with the

record on appeal. State v. Vu, 9th Dist. Medina No. 11CA0042-M, 2012-Ohio-746, ¶ 27 (“It is

an appellant’s burden to ensure that the record is complete on appeal.”). Because I cannot

conclude that the trial court acted unreasonably in its judgment, I would overrule Husband’s

second assignment of error.

(Celebrezze J., of the Eighth District Court of Appeals, sitting by assignment.)


APPEARANCES:

SHARYL L. GINTHER and KENNETH L. GIBSON, Attorneys at Law, for Appellant.

LISA CAREY DEAN and TODD ANTHONY MAZZOLA, Attorneys at Law, for Appellee.
