[Cite as Saari v. Saari, 195 Ohio App.3d 444, 2011-Ohio-4710.]


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



SAARI,                                                    C.A. No.   10CA009851

        Appellee,

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
SAARI,                                                    COURT OF COMMON PLEAS
                                                          COUNTY OF LORAIN, OHIO
        Appellant.                                        CASE No.   07DR068346


Appellee, pro se.
Appellant, pro se.

                                 DECISION AND JOURNAL ENTRY

Dated: September 19, 2011



        CARR, Presiding Judge.

        {¶ 1} Appellant, Scott Saari, appeals from the judgment of the Lorain County Court of

Common Pleas, Domestic Relations Division. This court affirms in part and reverses in part.

                                                      I

        {¶ 2} Scott Saari (“Husband”) and Patricia Saari (“Wife”) were married in June 2004

and divorced in October 2008. Husband appealed the trial court’s judgment entry of divorce in

regard to several orders arising out of the court’s interpretation of the parties’ prenuptial

agreement. This court reversed that judgment in part and remanded to the trial court for further

proceedings consistent with our opinion. Saari v. Saari, 9th Dist. No. 08CA009507, 2009-Ohio-

4940 (“Saari I”). On remand, the domestic relations court held a status conference and ordered
                                                 2


that the parties may file proposed judgment entries based on this court’s decision. The trial court

scheduled the matter for another status conference on May 18, 2010.

       {¶ 3} In the meantime, Husband filed a motion for reimbursement of spousal-support

fees and a motion for interest on the monies Wife must pay Husband as a result of this court’s

decision. In addition, Husband filed a proposed judgment entry in which he recited the monies

Wife owed Husband, based on this court’s decision, including spousal-support processing fees,

plus interest. Husband’s proposed order stated that all payments shall be made within 30 days of

the journalization of the trial court’s order. Before the trial court entered a final judgment,

Husband also filed a motion for dividing the parties’ interests in the marital real estate. Wife did

not file a proposed judgment entry.

       {¶ 4} On May 26, 2010, the domestic relations court issued a “judgment” in which it

dismissed all the pending motions as premature, further noting that it had not yet issued a “final

decision based upon the Decision rendered by the Court of Appeals.”             The court further

cancelled a hearing that it had apparently scheduled for June 4, 2010, although the record

contains no formal scheduling order. On June 23, 2010, with no indication of any hearing on the

matter, the trial court rejected Husband’s proposed judgment entry and issued a judgment

purported to effect the mandates of this court’s September 21, 2009 opinion.

       {¶ 5} This court had concluded that the trial court erred in finding the spousal-support

provision of the parties’ prenuptial agreement to be void as unconscionable and in awarding

spousal support to Wife in the amount of $4,000 per month for a term of 12 months. Saari I,

2009-Ohio-4940. On remand, the domestic relations court ordered Wife to reimburse Husband

$48,000, the amount he paid ostensibly as spousal support. Specifically, the trial court ordered

the reimbursement of the erroneously ordered spousal support by directing Wife to pay Husband
                                                3


directly the sum of $250 per month until the total of $48,000was repaid, a feat that would take 16

years to accomplish. Moreover, while the trial court ordered the reimbursement to Husband of

$1,030.23 in processing fees procured from him by Lorain County Child Support Enforcement

Agency (“CSEA”), it did not order the reimbursement of processing fees procured by his

employer, National City Bank. The trial court ordered Wife to reimburse Husband within 30

days for three payments this court concluded that the trial court erroneously ordered Husband to

make in contravention of the terms of the parties’ prenuptial agreement. Finally, the domestic

relations court ordered Wife to pay Husband an additional six percent of the amount of the

proceeds from the sale of the marital residence within 30 days, which amount the trial court

believed would represent Husband’s 46 percent share of equity in the home pursuant to the terms

of the parties’ prenuptial agreement. Husband filed a timely appeal, raising three assignments of

error for review. Some assignments of error have been consolidated to facilitate review.

                                                II

                                     Assignment of Error I

             The trial court abused its discretion in ordering the repayment of
       spousal support of $48,000, at a rate of $250.00 per month for a period of
       16 years to the defendant, at no interest.

                                     Assignment of Error II

             The trial court erred when ordering the reimbursement to the
       defendant, [omitting] processing charges associated with the payment of
       spousal support to the plaintiff.

       {¶ 6} As a preliminary matter, this court notes that appellee Wife has failed to file an

appellee’s brief. Accordingly, we may accept appellant Husband’s statement of the facts and

issues as correct and reverse the judgment if Husband’s brief reasonably appears to sustain such

action. App.R. 18(C); see also Akron v. Carter, 9th Dist. No. 22444, 2005-Ohio-4362, at ¶ 3.
                                               4


       {¶ 7} Husband argues that the trial court erred by ordering Wife to reimburse, through

monthly payments of $250without interest, the $48,000.00 he was required to pay pursuant to an

unlawful spousal-support order. In addition, Husband argues that the trial court erred by failing

to order the reimbursement of processing fees associated with the withholding of the unlawfully

ordered spousal support. This court agrees.

       {¶ 8} As a general rule, appellate courts review the propriety of a trial court’s

determination in a domestic relations case for an abuse of discretion. Booth v. Booth (1989), 44

Ohio St.3d 142, 144. This is true because the domestic relations court, as a court of equity,

“must have discretion to do what is equitable upon the facts and circumstances of each case.”

Id., citing Cherry v. Cherry (1981), 66 Ohio St.2d 348, 355. Specifically, this court recognizes

the domestic relations court’s broad discretion regarding matters involving spousal support. See

Abram v. Abram (Jan. 9, 2002), 9th Dist. No. 3233-M.

       {¶ 9} In Saari I, this court concluded that the domestic relations court erred when it

found the spousal-support provision of the parties’ prenuptial agreement to be unconscionable

and awarded spousal support to Wife. On remand, the domestic relations court was mandated to

vacate the prior spousal-support order and issue any orders necessary to return Husband to a

position as if he had never been obligated to pay spousal support. The trial court’s sua sponte

June 23, 2010 judgment constitutes an unreasonable attempt to effect that mandate.

       {¶ 10} When ordering Wife to pay to Husband other monies pursuant to this court’s

decision in Saari I, the trial court ordered Wife to make those payments within 30 days of the

journalization of the lower court’s judgment entry. However, when ordering Wife to reimburse

Husband for the spousal support he was wrongfully ordered to pay over the course of one year,

the domestic relations court did not order the immediate repayment in full. Rather, its order
                                                 5


allowed Wife to pay that same amount over a period of 16 years. In other words, Husband was

forced to wait 16 times as long to recover a substantial sum of money that he was never legally

obligated to pay in the first instance. This court has found no legal authority addressing a lower

court’s authority to institute a repayment plan to a party who was wrongfully ordered to pay a

judgment, and we do not here decide that issue. We conclude, however, that an order that allows

a party who wrongfully obtained a judgment for spousal support to repay the unlawfully obtained

money, without interest, over a period of time consisting of 16 times the length of time in which

she acquired the windfall is unreasonable and arbitrary. In fact, such a long-term reimbursement

schedule is grossly unreasonable. Accordingly, the domestic relations court abused its discretion

by ordering Wife to repay Husband $250 per month, without interest, until she had reimbursed

him for the entire $48,000 he paid over the course of one year. Husband’s argument in support

of his first assignment of error is well taken

       {¶ 11} Husband next challenges the domestic relations court’s failure to order the

reimbursement of processing fees associated with his spousal-support payments. Although the

trial court ordered CSEA to reimburse to Husband the $1,030.23 it collected for processing fees,

Husband argues that the agency has a pending motion to intervene in the action below and a

companion motion to vacate the trial court’s judgment in regard to agency-processing fees. The

record does not contain any indication that the trial court has ruled on the agency’s motions.

Accordingly, this court declines to address Husband’s argument in this regard because it is not

yet ripe for consideration.

       {¶ 12} Husband next argues that the domestic relations court erred by failing to order

Wife to repay him for the amount of money retained by his employer as service charges
                                                6


associated with its compliance with the trial court’s spousal-support withholding order. This

court agrees.

       {¶ 13} R.C. 3121.03 requires a court that issues a support order to issue a withholding

notice to the obligor’s employer (the “payor”).       R.C. 3121.037(A)(12) requires that such

withholding notice contain a statement that the employer “may withhold a fee from the obligor’s

income as a charge for its services in complying with the [withholding] notice.” R.C. 3121.18

establishes that fee as “the greater of two dollars or an amount not exceeding one per cent of the

amount withheld.”

       {¶ 14} Husband’s employer withheld $469.78 in processing fees associated with its

compliance with the spousal-support withholding order. It is axiomatic that because Husband

never had any lawful obligation to pay spousal support, he should never have been subjected to

the loss of income in the form of processing fees associated with the erroneous withholding

order. While Wife did not receive those additional monies withheld as fees, she benefitted from

the employer’s processing of the support order pursuant to the withholding notice.

       {¶ 15} It has long been held that as “between two innocent parties, he who has caused the

loss shall bear it.” Forbes & King v. Espy, Heidelbach & Co. (1871), 21 Ohio St. 474, 479. See

also 42 Ohio Jurisprudence 3d (1980) Estoppel and Waiver, Section 53 (“Estoppel by negligence

is said to be an application of the general principle of equity that when one of two innocent

persons must suffer a loss, the loss must fall on the one who made the loss possible or who could

have prevented it. * * * This may be true even where no positive fault has been committed by the

one bringing about the situation, but more especially if there has been any carelessness on his

part which caused or contributed to the loss”) In her complaint for divorce, Wife prayed for

certain relief, including “an award of such further relief as this Court may find just and
                                                7


equitable.” Fifteen days later, she filed a motion for temporary spousal support. Husband filed a

counterclaim for divorce in which he alleged that the parties’ prenuptial agreement precluded

either party from paying spousal support to the other.         In Wife’s answer to Husband’s

counterclaim, she denied Husband’s allegation in regard to the spousal-support provision of the

prenuptial agreement. Wife continued to challenge the validity of the prenuptial agreement, and

the trial court held a hearing on the issue, ultimately upholding the validity of the agreement,

with the exception of the spousal-support provision. The domestic relations court awarded

spousal support to Wife based on her request for it and the court’s finding that the spousal-

support provision was unconscionable. This court concluded that the trial court had erred by

awarding spousal support to Wife. Wife’s active pursuit of an award of spousal support despite

the provision in the parties’ prenuptial agreement precluding such an award caused Husband to

suffer an additional loss of income associated with his unwarranted payment of spousal support.

Husband’s employer provided a service for which it had a right to be compensated. Of the

remaining innocent parties, Wife, as the party who caused the loss, should be the one to bear it.

Accordingly, the domestic relations court abused its discretion by failing to order Wife to

reimburse Husband for the $469.78 retained as fees by his employer in connection with

complying with the withholding order. Husband’s argument in regard to his second assignment

of error is well taken.

        {¶ 16} The domestic relations court’s long-term repayment plan, without any provision

for the payment of interest or the reimbursement of all processing charges, is in conflict with the

court’s remand in Saari I. See Vail v. Vail, 8th Dist. Nos. 85587 and 85590, 2005-Ohio-4308, at

¶ 20. Accordingly, the trial court abused its discretion in its issuance of an unreasonable and

arbitrary judgment. Husband’s first and second assignments of error are sustained.
                                                 8




                                      Assignment of Error III

              The trial court erred in deviating from the decision and journal entry
       of the court of appeals and the terms of the prenuptial agreement in terms of
       dividing the parties’ separate interests in the marital real estate and in
       unequally dividing the marital interest in said property[.]

       {¶ 17} Husband argues that the domestic relations court erred by failing to carry this

court’s mandate regarding the division of the marital home into execution. This court disagrees.

       {¶ 18} In Saari I, this court concluded that the domestic relations court erred by ordering

that Husband was entitled to 40 percent of the proceeds from the sale of the parties’ marital

home instead of the 46 percent as determined by his equity interest as set forth in the prenuptial

agreement. Saari I, 2009-Ohio-4940, at ¶ 21-23. On remand, the domestic relations court

ordered Wife to pay Husband “an additional 6% of the amount of the proceeds from the sale of

the marital residence.” By that order, the trial court complied with the mandate of this court and

ordered the distribution of the marital residence pursuant to the terms of the parties’ prenuptial

agreement.

       {¶ 19} Husband argues that Wife paid him an additional $7,720.28 which “[s]he

calculated” to be the additional six percent of the proceeds. Husband argues that he is entitled to

an additional $2,496.87. Based on the total proceeds from the sale of the home ($128,670.38)

and the amount that Husband has received from the proceeds ($56,691.46), he is correct.

However, that Wife has not yet paid Husband an amount that represents his full 46 percent

interest in the marital property is not trial-court error. The domestic relations court entered the

appropriate order on remand. If Wife has not fully complied with that order, Husband’s recourse

lies before the trial court, not this one. Husband’s third assignment of error is overruled.

                                                 III
                                              9


       {¶ 20} Husband’s first assignment of error is sustained. His second assignment of error

is sustained as it relates to processing fees withheld by his employer.      Husband’s third

assignment of error is overruled. The judgment of the Lorain County Court of Common Pleas is

affirmed in part and reversed in part, and the cause is remanded for further proceedings

consistent with this opinion.

                                                                    Judgment affirmed in part
                                                                        and reversed in part,
                                                                        and cause remanded.



       WHITMORE and DICKINSON, JJ., concur.
