[Cite as Kleinman v. Kleinman, 2013-Ohio-4511.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

 BARBARA L. KLEINMAN                              :
                                                  :      Appellate Case No. 25435
            Plaintiff-Appellant                   :
                                                  :      Trial Court Case No. 10-DR-1314
 v.                                               :
                                                  :
 JEFFREY L. KLEINMAN                              :      (Civil Appeal from Common Pleas
                                                  :      (Court, Domestic Relations)
            Defendant-Appellee                           :
                                                :
                                           ...........

                                           OPINION

                          Rendered on the 11th day of October, 2013.

                                           ...........

CHARLES D. LOWE, Atty. Reg. #0033209, 8087 Washington Village Drive, Suite 102,
Dayton, Ohio 45458
      Attorney for Plaintiff-Appellant/Cross-Appellee, Barbara Kleinman

AMY R. BLAIR, Atty. Reg. #0073760, Rogers & Greenberg LLP, 2160 Kettering Tower,
Dayton, Ohio 45402
      Attorney for Defendant-Appellee/Cross-Appellant, Jeffrey L. Kleinman

                                                      .............

HALL, J.,

       {¶ 1}     Barbara Kleinman appeals from the trial court’s judgment entry and divorce

decree that, among other things, vacated temporary spousal support and awarded appellee,

Jeffrey Kleinman, a credit for temporary spousal support he paid during the pendency of the
                                                                                                          2


action.

          {¶ 2}      In her sole assignment of error, Barbara contends the trial court erred in

awarding Jeffrey a credit for the temporary spousal support he paid.1

          {¶ 3}      The record reflects that the parties married in 2002 and divorced in 2003.

They remarried in 2007. Prior to the second marriage, they entered into a prenuptial

agreement. In relevant part, it provides: “Neither party shall be entitled to or granted spousal

support from the other. Each party hereby waives and renounces any and all claims he or she

may have on the assets or income of the other, including, without limitations, temporary

and/or permanent spousal support * * *.”

          {¶ 4}      Despite the foregoing agreement, Barbara requested temporary and permanent

spousal support in her December 2010 complaint for divorce. The trial court granted the

request for temporary spousal support in January 2011, awarding her $2,015 per month. The

case proceeded to a final hearing in May and June 2012. At the outset of the hearing, the

parties stipulated that the prenuptial agreement was valid. Following the hearing, the trial court

filed a decision that resolved various disputed issues. With regard to the temporary spousal

support, the trial court reasoned:

                    Jeffrey is requesting that he receive a credit of $32,000.00 for temporary

          spousal support that he was ordered to pay during the pendency of this proceeding.

          The court finds that awarding Jeffrey $32,000 is appropriate in this instance. As

          previously stated, both parties waived any right to temporary spousal support, and

          therefore, Barbara’s property division shall be reduced by the $32,000.

           1
            For purposes of convenience and clarity, we will refer to the parties by their first names.
                                                                                                      3


(Doc. #44 at 8).

           {¶ 5}   The trial court reiterated this decision in its September 26, 2012 divorce decree,

stating:

                   * * * IT IS FURTHER ORDERED that the temporary support order

           previously filed in the above-captioned matter shall be and the same is hereby

           vacated in its entirety. Further, the court previously ordered that the Defendant

           receive a credit of $32,000 credit [sic] for the temporary spousal support he paid

           during the pendency of these proceedings against the property settlement payment

           he owes to the Plaintiff under provision 5 of this Final Judgment and Decree of

           Divorce.

(Doc. #45 at 3).

           {¶ 6}   On appeal, Barbara contends a trial court has discretion to award temporary

spousal support even when a prenuptial agreement prohibits it. She claims the trial court erred in

essentially concluding that the prenuptial agreement compelled it to deny temporary spousal

support. According to Barbara, “the Trial Court never got to the point of exercising its discretion

on the issue. Rather, the Court clearly concluded that it did not have the authority or discretion to

award temporary spousal support in light of the language of the prenuptial agreement.”

(Emphasis sic.) (Appellant’s brief at 4). As a result, she seeks a reversal of the judgment on that

issue with an instruction for the trial court to exercise its discretion as to whether it should vacate

the temporary spousal-support award and give Jeffrey a credit for the support he paid.

           {¶ 7}   Upon review, we find Barbara’s argument to be unpersuasive. “It is well settled

in Ohio that public policy allows the enforcement of prenuptial agreements.” Fletcher v.
                                                                                                                                             4


Fletcher, 68 Ohio St.3d 464, 466, 628 N.E.2d 1343 (1994). ”Such 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 property; 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

“special” conditions, in all other respects such agreements are contracts; and contract law

generally applies to their application and interpretation. Fletcher at 467; see also Saari v. Saari,

9th Dist. Lorain No. 08CA9507, 2009-Ohio-4940, ¶ 25.

         {¶ 8}       In the present case, of course, the parties stipulated to the validity of their

prenuptial agreement that waived any claim to temporary or permanent spousal support. In

arguing that a trial court may award temporary support despite a prenuptial agreement to the

contrary, Barbara cites this court’s opinion in Buzard v. Buzard, 2d Dist. Clark No. 2011 CA 18,

2012-Ohio-2658. Therein, this court did opine that “a trial court ‘may award temporary support

during the pendency of a divorce action pursuant to R.C. 3105.18 despite the existence of an

antenuptial agreement to the contrary * * *.’”2 Id. at ¶38, quoting Cangemi v. Cangemi, 8th Dist.

Cuyahoga No. 86670, 2006-Ohio-2879, ¶14. In a separate concurring opinion that garnered the

votes of two members of the Buzard panel, however, Judge Thomas Grady identified the limited

circumstances under which a trial court may award temporary spousal support in contravention of

a prenuptial agreement. Specifically, “[a]bsent one of the impediments identified in Gross,” the


           2
            The lead opinion in Buzard actually held, however, that the trial court had abused its discretion in awarding what amounted to
 temporary support in contravention of an antenuptial agreement that it had failed to consider. Buzard at ¶36, 38-39.
                                                                                                   5


agreement is enforceable and a trial court may not order relief the agreement prohibits. Id. at ¶49.

Thus, absent a finding that one of the Gross exceptions applies, a trial court abuses its discretion

in ordering temporary support that is precluded by a prenuptial agreement. Id.

       {¶ 9}    Here Barbara does not argue that the prenuptial agreement is unenforceable for

any reason. Indeed, her stipulation to the agreement’s validity precludes such an argument.

Because the parties’ prenuptial agreement waiving temporary spousal support is valid and

enforceable, the trial court could not award Barbara temporary spousal support. Therefore, we

will not remand for the trial court to exercise any “discretion” with regard to the issue. Barbara’s

assignment of error is overruled.

       {¶ 10} The trial court’s judgment is affirmed.

                                                    .............

DONOVAN and WELBAUM, J., concur.



Copies mailed to:

Charles D. Lowe
Amy R. Blair
Hon. Timothy D. Wood
