[Cite as Vanderbilt v. Vanderbilt, 2013-Ohio-1222.]


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

BARBARA A. VANDERBILT                                      C.A. Nos.   11CA0103-M
                                                                       11CA0104-M
        Appellee/Cross-Appellant

        v.
                                                           APPEAL FROM JUDGMENT
SHANE W. VANDERBILT                                        ENTERED IN THE
                                                           COURT OF COMMON PLEAS
        Appellant/Cross-Appellee                           COUNTY OF MEDINA, OHIO
                                                           CASE No.   09 DR 0086

                                 DECISION AND JOURNAL ENTRY

Dated: March 27, 2013



        MOORE, Judge.

        {¶1}     Barbara Vanderbilt and Shane Vanderbilt have each appealed orders of the

Medina County Court of Common Pleas, Domestic Relations Division, that considered the

validity of their prenuptial agreement and applied its terms for purposes of their divorce decree.

With respect to Wife’s appeal, the judgment of the trial court is affirmed, but with respect to

Husband’s appeal, the judgment of the trial court is reversed.

                                                      I.

        {¶2}     The Vanderbilts married in 1999 after a long relationship. It was the second

marriage for both of them, and Husband insisted that Wife sign a prenuptial agreement before

they married. His insistence led Wife to end the relationship at least once, but they soon

reconciled, became engaged, and planned a wedding for January 1999. Only days before the

wedding, they had another disagreement about the issue. Wife met with an attorney, Husband

made changes to a draft prenuptial agreement, and Wife signed it. When Wife filed a complaint
                                                 2


for divorce in 2009, Husband moved the trial court to determine the validity of the prenuptial

agreement.    After a hearing limited to that issue, the trial court ruled that the prenuptial

agreement was valid but, with respect to spousal support, that the prenuptial agreement did not

control.

       {¶3}    The trial court granted the parties a divorce on September 21, 2011, and the

divorce decree resolved three issues related to the prenuptial agreement. With respect to the

division of equity in the marital home, the trial court considered the evidence at trial in light of

the prenuptial agreement and concluded that the percentage distribution should be based on an

initial investment of separate property by Husband of $160,613.00 and “[t]he balance of the

moneys expended for and on behalf of the real estate is deemed to have been equally contributed

by the husband and wife.” With respect to spousal support, and consistent with its earlier

decision, the trial court declined to apply the terms of the prenuptial agreement and awarded

Wife $3,500 per month for 49 months. Finally, the trial court concluded that $44,895.81 in

home furnishings should be divided equally among the parties.

       {¶4}    Husband and Wife each appealed, and their appeals were consolidated for

purposes of decision. Wife’s five assignments of error challenge the trial court’s conclusion that

the prenuptial agreement is valid. Husband’s seven assignments of error challenge the trial

court’s interpretation and application of the prenuptial agreement. We have rearranged some of

the assignments of error for ease of analysis.
                                                 3


                                                 II.

                              WIFE’S ASSIGNMENTS OF ERROR

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT’S FINDING THAT WIFE HAD A WORKING
       KNOWLEDGE OF [HUSBAND’S] CAREER, BUSINESS, AND ASSETS WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
       DISREGARDED THE REQUIREMENT THAT THERE BE A FULL
       FINANCIAL DISCLOSURE OF THE PARTIES’ ASSETS AND UPHELD THE
       PRENUPTIAL AGREEMENT IN VIOLATION OF THE OHIO SUPREME
       COURT’S HOLDING IN GROSS V. GROSS.

       {¶5}    Wife’s third and fourth assignments of error argue that the trial court erred in its

determination that she executed the agreement with full disclosure or with full knowledge and

understanding of the nature, value and extent of Husband’s property. Wife’s arguments focus on

the trial court’s evaluation of the competing evidence at trial and, therefore, maintain that the

trial court’s decision was against the manifest weight of the evidence. We disagree.

       {¶6}    When the weight of the evidence is challenged in a civil case, this Court “weighs

the evidence and all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created

such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial

ordered.” (Alterations in original.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶

20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001).

       {¶7}    In Ohio, prenuptial agreements that govern the disposition of property upon

divorce are valid “(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,
                                                 4


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 (1984),

paragraph two of the syllabus.       When application of a prenuptial agreement leads to a

distribution “disproportionately less than the party challenging it would have received under an

equitable distribution,” the party asserting the validity of the agreement must demonstrate “that

the other party entered into it with the benefit of full knowledge or disclosure of the assets of the

proponent.” Fletcher v. Fletcher, 68 Ohio St.3d 464 (1994), paragraph one of the syllabus.

        {¶8}   In Gross, the Court adopted and explained the analysis that Ohio courts had

previously used when considering prenuptial agreements with respect to estate distribution. In

that context, the Ohio Supreme Court had concluded that “[a]n antenuptial contract voluntarily

entered into during the period of engagement is valid when the provision for the wife is fair and

reasonable under all the surrounding facts and circumstances” and will be upheld even when the

distribution is “wholly disproportionate” if the spouse “voluntarily enter[ed] into the contract

after full disclosure or with full knowledge.” Juhasz v. Juhasz, 134 Ohio St. 257 (1938),

paragraphs two and four of the syllabus. Elaborating on this requirement, the Juhasz Court

summarized the law applicable to prenuptial agreements:

        The rule supported by the weight of authority may be stated thus: An engagement
        to marry creates a confidential relation between the contracting parties and an
        antenuptial contract entered into after the engagement and during its pendency
        must be attended by the utmost good faith; if the provision for the prospective
        wife is, in the light of surrounding circumstances, wholly disproportionate to the
        means of her future husband and to what she would receive under the law, the
        burden rests on those claiming the validity of the contract to show that there was a
        full disclosure of the nature, extent and value of the intended husband's property,
        or that she had full knowledge thereof without such disclosure, and that she, with
        this knowledge, voluntarily entered into the antenuptial settlement.

Id. at 264.
                                                 5


       {¶9}    In a later case, the Court explained that a “trial court, faced with an attack on [a

prenuptial] agreement, must consider all facts and circumstances bearing upon the validity of that

agreement, and determine whether it is binding and valid.” Hook v. Hook, 69 Ohio St.2d 234,

236 (1982).     After concluding that the agreement at issue in that case contemplated a

disproportionate distribution to the surviving spouse, the Court emphasized that “the agreement

will be upheld only if it appears [the surviving spouse] voluntarily entered into the agreement

with full knowledge of the nature, extent and value of her prospective husband’s property.” Id.

The Court rejected any “requirement that the parties to such an agreement itemize their various

assets and their worth.” Id. at 238.

       {¶10} From this context, the Ohio Supreme Court explained in Gross that the

requirement of “full disclosure” is satisfied “either by the exhibiting of the attachment to the

antenuptial agreement of a listing of the assets of the parties to the agreement, or alternatively a

showing that there had been a full disclosure by other means.” Gross, 11 Ohio St.3d at 105.

Courts of appeals have consistently looked to the totality of the circumstances to determine

whether the required knowledge of assets is present. See, e.g., Grimm v. Grimm, 12th Dist. No.

CA2002-04-089, 2003-Ohio-80, ¶ 8-9.

       {¶11} In this case, the evidence at trial established that although the financial disclosures

were not attached to the prenuptial agreement when Wife first consulted her attorney on

December 30, 1998, they were attached when she returned to his office on the following day

with the amended agreement. Wife acknowledged that she did not know whether they were

attached or not because she did not look at it before she signed it against the continuing advice of

her attorney. Although Husband acknowledged at trial that he omitted two oil and gas wells

from his list of assets on the financial disclosure, the undisputed testimony demonstrated that
                                                 6


those assets were of insignificant value, if any. Viewing this issue in light of the totality of the

testimony at trial, the trial court’s conclusion that Husband made full disclosure of his assets is

not against the manifest weight of the evidence. Husband’s third and fourth assignments of error

are overruled.

                                  ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT APPLIED A
        LESS STRINGENT STANDARD TO DETERMINE THE VALIDITY OF A
        PRENUPTIAL AGREEMENT THAN THE ONE DICTATED BY THE OHIO
        SUPREME COURT IN GROSS V. GROSS.

        {¶12} Wife’s second assignment of error argues that the trial court erred in its

articulation of what is required to demonstrate that there has been a full disclosure of financial

assets when reviewing a prenuptial agreement. Specifically, she has argued that the trial court

applied a lower threshold of disclosure consistent with Millstein v. Millstein, 8th Dist. No.

79617, 79754, 80184, 80185, 801886, 80187, 80188, 80963, 2002-Ohio-4783, in which the

Eighth District Court of Appeals concluded that a general knowledge of the spouse’s wealth is

sufficient to establish disclosure.

        {¶13} Wife correctly observes that this Court has never had occasion to consider

whether the Millstein analysis is valid. In light of our conclusion with respect to her third and

fourth assignments of error, however, we need not reach the issue in this case. Wife’s second

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR I

        THE TRIAL COURT’S FINDING THAT THE PARTIES’ PRENUPTIAL
        AGREEMENT WAS NOT PROCURED THROUGH FRAUD, DURESS, OR
        OVERREACHING WAS AGAINST THE MANIFEST WEIGHT OF THE
        EVIDENCE AND THE TRIAL COURT ERRED WHEN IT UPHELD THE
        AGREEMENT.
                                               7


       {¶14} In her first assignment of error, Wife has argued that the manifest weight of the

evidence demonstrated that Husband obtained the prenuptial agreement through fraud, duress,

and overreaching. According to Wife, Husband “subjected her to significant stress and coerced

her into signing” the agreement.

       {¶15} As explained above, prenuptial agreements are 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, 11 Ohio St.3d at paragraph two of the syllabus. The party

challenging the agreement, however, must prove fraud, duress, coercion, or overreaching. Id.

       {¶16} With respect to fraud, duress, coercion, or overreaching, the financially

disadvantaged party “must have a meaningful opportunity to consult with counsel.” Fletcher, 68

Ohio St.3d at 470.    The critical element in this requirement is the meaningfulness of the

opportunity:

       [A]ssistance of counsel may in some cases be necessary for a fully informed and
       considered decision to sign. The meaningfulness of the opportunity of the
       nonproponent party to seek counsel before executing an antenuptial agreement is,
       therefore, a significant element of the Gross test to determine whether coercion or
       overreaching occurred. Nevertheless, an agreement signed without counsel is not
       per se invalid, and mere regret at an unwise decision does not establish duress,
       coercion, fraud or overreaching.

Id. “[T]he term ‘overreaching’ is used in the sense of one party by artifice or cunning, or by

significant disparity to understand the nature of the transaction, to outwit or cheat the other.”

Gross at 105. Courts therefore look to the totality of the surrounding circumstances when

considering the existence of duress, coercion, fraud, or overreaching, including knowledge of the

nature of the agreement and whether the agreement was presented for signature in close
                                                 8


proximity to the scheduled wedding. See Mann v. Mann, 9th Dist. No. 09CA009685, 2010-

Ohio-1489, ¶ 18-22. See also Barth v. Barth, 4th Dist. No. 08CA53, 2010-Ohio-425, ¶ 9-12;

Zawahiri v. Alwattar, 10th Dist. No. 07AP-925, 2008-Ohio-3473, ¶ 22.

       {¶17} Wife has argued that the prenuptial agreement in this case resulted from duress

and overreaching because Husband provided the agreement to her only days before their

wedding date, leaving her without a meaningful opportunity to consult her attorney and with no

choice but to sign in order to proceed with the wedding. Her recitation of the events surrounding

the signing of the agreement, however, does not convey the full sense of the testimony at trial.

       {¶18} According to Wife, she and Husband discussed the possibility of a prenuptial

agreement on two occasions before December 1998. She testified that she had always been

vehemently opposed to signing and, in fact, that she and Husband had broken up over the issue

in 1995. Husband also testified that Wife had always opposed a prenuptial agreement, but his

testimony differed from hers in many other respects.

       {¶19} According to Husband, he insisted from the beginning of their relationship that,

after a difficult divorce from his first wife, he would never remarry without a prenuptial

agreement. Husband testified that he and Wife broke up over the issue not once, but twice. He

also testified that the matter of a prenuptial agreement was a source of continuous friction

between the two of them over the course of their relationship. Numerous friends of the couple

testified similarly. Husband testified that after he and Wife reconciled in 1995 and became

engaged in 1997, he instructed his attorney to prepare a prenuptial agreement. Although he

agreed that the draft that resulted was not the product of ongoing negotiations between him and

Wife, he testified that he did give the draft to her in January 1998, leading to a second breakup.

According to Husband, they reconciled when he agreed to modify the draft to include language
                                                9


that would benefit Wife and her children in the event of his death. He also testified that he never

wavered in his insistence on a prenuptial agreement prior to their wedding.

       {¶20} Wife’s attorney, Ricky Helmuth, testified that he met with Wife regarding the

prenuptial agreement on December 30, 1998. According to Attorney Helmuth, he received a

draft on December 28, 1998 and made notes memorializing his concerns. On December 30, he

reviewed the agreement with Wife, going through the draft and providing explanations. He

advised Wife not to sign the agreement, noting specifically that there were no financial

disclosures included. Attorney Helmuth testified that Wife returned to his office unannounced

on December 31, determined to sign the agreement. Based on Wife’s representations, Attorney

Helmuth assumed that the agreement had not changed, but he noted the attachment of what

appeared to be financial disclosures. His advice to Wife did not change, and he “reiterated [his]

recommendation” at that time. When Wife insisted on signing, Attorney Helmuth signed the

certification that he had reviewed the agreement, noting that the agreement was dated on

December 30.

       {¶21} With respect to the timing of the agreement, the trial court credited the testimony

of Husband and other witnesses that the prenuptial agreement was not sprung on Wife at the last

minute but was, in fact, an ongoing source of contention between the couple. In any event,

however, the Supreme Court of Ohio has noted that a prenuptial agreement may be valid, even if

executed on the eve of the wedding, when “because of the small size and informality of the

impending wedding, it could have been postponed had [the spouse] wished to consult counsel[.]”

Fletcher, 68 Ohio St.3d at 468. See also Mann, 2010-Ohio-1489, at ¶ 20-21.
                                               10


       {¶22} Under Fletcher, the proximity of the agreement to the wedding date is significant

because it may impede the meaningful opportunity to obtain the advice of counsel before

signing:

       [W]hen an antenuptial agreement provides disproportionately less than the party
       would have received under an equitable distribution, the party financially
       disadvantaged must have a meaningful opportunity to consult with counsel. The
       presentation of an agreement a very short time before the wedding ceremony will
       create a presumption of overreaching or coercion if, in contrast to this case, the
       postponement of the wedding would cause significant hardship, embarrassment or
       emotional stress.

Fletcher at 470. In this case, even if we accept Wife’s testimony that she was not provided a

draft of the prenuptial agreement until December 28, 1998, the lateness of the hour did not

interfere with her opportunity to consult an attorney. Wife went to Attorney Helmuth’s office

two times. He testified that he explained the agreement and his concerns on December 30 and

advised her not to sign.    Nonetheless, according to Attorney Helmuth, Wife returned on

December 31 determined to sign over his objections. In addition, as in Fletcher and Mann, Wife

and Husband planned a small wedding limited to their immediate family members, and had Wife

wanted further consultations with her attorney, the circumstances of the wedding would not have

exposed her to “significant hardship, embarrassment or emotional stress.” Fletcher at 470.

       {¶23} This Court has reviewed the entire record of the hearing on the validity of the

prenuptial agreement, and we cannot conclude that the trial court lost its way in concluding that

Wife did not demonstrate duress, coercion, fraud or overreaching. Wife’s first assignment of

error is overruled.

                                ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND
       THE PARTIES’ PRENUPTIAL AGREEMENT VALID AND ENFORCEABLE
       WHEN THE TERMS OF THE AGREEMENT PROMOTE AND ENCOURAGE
                                                11


       DIVORCE OR PROFITEERING BY DIVORCE IN VIOLATION OF THE
       OHIO SUPREME COURT’S HOLDING GROSS V. GROSS.

       {¶24} Wife’s fifth assignment of error is that the trial court erred by determining that the

agreement did not promote divorce when, according to her, it “encouraged Husband to do

whatever he pleased while it discouraged Wife from leaving * * * as it financially chained her to

the marriage.” We disagree.

       {¶25} In Gross, the Ohio Supreme Court provided an example of a hypothetical

situation in which a prenuptial agreement might be found to encourage divorce or profiteering by

divorce:

       A hypothetical example of the type of situation which condition three seeks to
       avoid is where the parties enter into an antenuptial agreement which provides a
       significant sum either by way of property settlement or alimony at the time of a
       divorce, and after the lapse of an undue short period of time one of the parties
       abandons the marriage or otherwise disregards the marriage vows.

Id., 11 Ohio St.3d at 105. In concluding that the terms of the agreement at issue did not

encourage divorce or profiteering from divorce, the Court looked not only at the agreement in

light of the circumstances surrounding execution, but at the duration and circumstances of the

subsequent marriage. See id. at 109. See also In re Estate of Gates v. Gates, 7th Dist. No. 06

CO 60, 2007-Ohio-5040, ¶ 20-30. According to the Supreme Court, therefore, the validity of the

agreement is judged, at least in part, by its fruits. Few cases have applied this analysis since

Gross was decided. As the Ohio Supreme Court recognized in Fletcher, however, a prenuptial

agreement that results in a distribution that is “disproportionately less than the party challenging

it would have received under an equitable distribution” may still be valid. Fletcher, 68 Ohio

St.3d 464 at paragraphs one and two of the syllabus. It stands to reason, therefore, that financial

disadvantage to one spouse is insufficient in itself to establish that a prenuptial agreement

encourages divorce or profiteering from divorce.
                                               12


       {¶26} According to Wife, however, the agreement is invalid precisely because it

“allowed [Husband] to benefit from his divorce.” Specifically, Wife has argued that the terms of

the agreement permitted Husband to engage freely in infidelity without any consequences.

Beyond Wife’s assertions, she provides no support for the proposition that adultery during a

marriage is sufficient grounds for invalidating an otherwise valid prenuptial agreement. In fact,

Gross suggests that the opposite is true:

       The parties here, and others who enter into such instruments, specifically provide
       for a possible “parting of the twain” by way of divorce or separation. It would
       seem that some misconduct was contemplated at that time. If there would be no
       basic circumstance present which could occasion a separation or divorce of the
       parties, how could the provisions in the contemplated contract ever be meaningful
       as to either party? Any other view taken of such agreements would undermine
       and render inane the basic purpose of such agreements. If the parties had
       intended that the subsequent marital misconduct would extinguish the mutual
       promises in the agreement, either voiding the provisions or permitting only the
       one not at fault to enforce such provisions, the parties could very well have made
       this clear within the terms of the agreement.

Gross, 11 Ohio St.3d at 107.

       {¶27} In this case, the terms of the agreement do not limit its applicability in the event

that either spouse is unfaithful, and Wife did not demonstrate that the facts of this case require

the conclusion that the agreement specifically encouraged divorce or profiteering from divorce.

See, e.g., Johnson, 2011-Ohio-500, at ¶ 68. Wife’s fifth assignment of error is overruled.

                          HUSBAND’S ASSIGNMENTS OF ERROR

                                 ASSIGNMENT OF ERROR I

       IN REGARD TO THE DIVISION OF EQUITY IN THE PARTIES’[] HOME,
       THE COURT ERRED BY MISAPPLYING THE EVIDENCE TO ITS
       INTERPRETATION OF THE PARTIES’ PRENUPTIAL AGREEMENT
       AND/OR DISREGARDING THE CLEAR AND UNAMBIGUOUS TERMS OF
       SAID AGREEMENT.
                                                 13


       {¶28} Husband’s first assignment of error argues that the trial court erred by

disregarding the provisions of the agreement related to the marital residence and, even if the trial

court’s construction of the agreement is correct, that the trial court’s determination that Wife

contributed financially to the construction of the marital residence through referrals to Husband’s

business is against the manifest weight of the evidence.

       {¶29} Courts apply the law of contracts generally to the interpretation and application of

valid prenuptial agreements. Johnson, 2011-Ohio-500, at ¶ 10. Consequently, our primary role

in doing so is to give effect to the parties’ intentions, looking first to the plain language of the

prenuptial agreement:

       When the language of a written contract is clear, a court may look no further than
       the writing itself to find the intent of the parties. As a matter of law, a contract is
       unambiguous if it can be given a definite legal meaning. On the other hand,
       where a contract is ambiguous, a court may consider extrinsic evidence to
       ascertain the parties’ intent.

(Internal citations omitted.) Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849,

¶ 11-12. “Where the parties following negotiation make mutual promises which thereafter are

integrated into an unambiguous contract duly executed by them, courts will not give the contract

a construction other than that which the plain language of the contract provides.” Aultman Hosp.

Ass’n. v. Community Mut. Ins. Co., 46 Ohio St.3d 51 (1989), syllabus.

       {¶30} In this case, the prenuptial agreement unambiguously expressed the parties’

intention that their separate incomes remain separate after their marriage. The recitals provided,

for example, that they would:

       [I]rrevocably renounce and relinquish any interest in the present property of the
       other or in additional property that is produced from said present property or
       results from passive earnings, accrued increments, interest, dividends, or the like
       to the extent said original and/or additional property remains separate property.
       The parties further intend to irrevocably renounce and relinquish any interest in
       after-acquired property of the other and/or any right or claim to the present or
                                               14


       future income or earnings of the other and any right or claim to spousal support,
       in the event of their separation, divorce, dissolution or other judicial termination
       of their marriage.

The prenuptial agreement defined separate property to include past, present, and future income,

and provided that “[a]ll such separate property now owned and/or subsequently acquired by each

party shall be free from the claim of the other that may arise by reason of their contemplated

marriage” and that “[a]ny earnings, income, accretion, change or increase in value of such

property shall be and remain the separate property of the original owner.” With respect to

income earned during the marriage, the agreement reiterated this intention:

       All salary, earnings and other income acquired or made during the marriage shall
       be the sole and separate property of the party acquiring it. Each party hereby
       waives any property interest or right to spousal support that he or she might
       otherwise acquire in the earnings or income, or the proceeds, as invested or
       retained, thereof of the other party acquired during the marriage.

With respect to the martial residence, the agreement provided:

       SHANE and BARBARA intend to use a portion of each party’s respective pre-
       marital assets to purchase their marital residence. The parties specifically intend
       that their new residence shall be their joint asset, which shall continue to be
       maintained by marital funds. * * * To the extent that either party contributes each
       party’s respective separate funds from the sale of a prior residence or from any
       other separate property to the purchase * * * the parties agree that each of them
       shall be entitled to the return of the same percentage of equity he or she
       respectively contributed, limited to: down payment, lump sum mortgage reduction
       * * * and the cost of any capital improvements.”

       {¶31} Wife agreed that she did not contribute any of her separate income from her

wages or from the sale of her premarital residence toward construction of the marital home. She

also agreed that she was never employed by Husband’s business and that she never had separate

income attributable to the business. She maintained, however, that her percentage of equity in

the marital home should be higher because, according to her, Husband’s separate income was

higher because of her efforts in connection with his business. In other words, Wife’s position is

that Husband only had the separate income to contribute to construction of their home because
                                                15


she helped to build his business. According to Wife, the couple had an unwritten agreement to

the effect that she would recruit clients for his business in order to generate income for Husband

that would fund the construction of the home.

       {¶32} The provisions of the prenuptial agreement, however, are unambiguous. By its

terms, the parties defined separate income, explained how equity in the marital residence would

be calculated, and expressed the clear intention that income earned by each would remain free of

claims by the other in the event of a divorce. Because the terms of the agreement with respect to

the parties’ separate income are clear, this Court must look no further than the agreement itself

and must give effect to the parties’ intentions as expressed therein. See Aultman, 46 Ohio St.3d

51 at syllabus. By its terms, the agreement does not contemplate any system of attributed

income like the one Wife has advocated. To the extent that the trial court reached a different

conclusion, we agree with Husband that it erred in its interpretation of the agreement. Even were

we to accept Wife’s theory of attributed income, however, there was no evidence presented at

trial through which the trial court could have determined a proportion of Husband’s income

attributable to Wife. Apart from Wife’s speculation about what might have been a reasonable

proportion, there was simply no evidence in this regard.

       {¶33} The trial court erred as a matter of law in its interpretation of the prenuptial

agreement, and Husband’s first assignment of error is sustained.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY IGNORING THE PRENUPTIAL
       AGREEMENT IN ITS DIVISION OF PERSONAL PROPERTY.

       {¶34} Husband’s second assignment of error is that the trial court erred in dividing the

personal property consisting of household furnishings equally between the parties when the

prenuptial agreement provides otherwise. We agree.
                                               16


       {¶35} As with respect to Husband’s first assignment of error, the terms of the prenuptial

agreement are unambiguous with respect to the division of this personal property, providing that

“All household personal property bought during the marriage by marital funds or by SHANE,

including, but not limited to, furniture, decorations, artwork, appliances, tools and equipment,

would remain with SHANE.” Wife does not dispute that the prenuptial agreement contains this

language, nor does she argue that she purchased any of the personal property with her separate

funds. Instead, her argument is the same as the one that she advanced with respect to Husband’s

first assignment of error: she is entitled to a portion of the personal property because she

contributed to Husband’s earning capacity during their marriage.

       {¶36} As with Husband’s first assignment of error, we agree that the terms of the

agreement are unambiguous and do not contemplate Wife’s theory of income. The trial court,

therefore, erred in dividing the parties’ property other than in accordance with the prenuptial

agreement.

       {¶37} Husband’s second assignment of error is sustained.

                               ASSIGNMENT OF ERROR III

       THE COURT ERRED IN FAILING TO DO A CONSCIONABILITY
       ANALYSIS AS TO THE ISSUE OF SPOUSAL SUPPORT.

       {¶38} Husband’s third assignment of error is that the trial court erred by disregarding

the terms of the prenuptial agreement with respect to spousal support without determining that

those terms were unconscionable as of the time of the divorce. We agree.

       {¶39} Even if a prenuptial agreement is valid at the time of execution, a party may

challenge the spousal support provisions contained therein by demonstrating that the terms

related to spousal support are unconscionable at the time of the divorce. Gross, 11 Ohio St.3d at

109. In other words,
                                                17


       [a]lthough * * * such provisions in an antenuptial agreement generally may be
       considered valid, and even though it is found in a given case upon review that the
       agreement had met all of the good faith tests, the provisions relating to
       maintenance or sustenance may lose their validity by reason of changed
       circumstances which render the provisions unconscionable as to one or the other
       at the time of the divorce of the parties. Accordingly, such provisions may, upon
       a review of all of the circumstances, be found to have become voidable at the time
       of the divorce or dissolution.

Id. The analysis of whether spousal support provisions are unconscionable is guided by the

factors applicable to the determination of support under R.C. 3105.18(C)(1). Id. at 109-110. See

also Saari v. Saari, 9th Dist. No. 08CA009507, 2009-Ohio-4940, ¶ 12. A trial court errs when it

invalidates spousal support terms of a prenuptial agreement without conducting this

conscionability analysis. Saari at ¶ 13-15; Buzard v. Buzard, 2d Dist. No. 2011 CA 18, 2012-

Ohio-2658, ¶ 48-49.

       {¶40} During the course of the hearing on the validity of the agreement, the trial court

explained the analysis that it would employ with respect to spousal support:

       [A]s a matter of law, counsel, I’m going to advise the two of you and your clients
       that it is well-settled law in the State of Ohio that an antenuptial agreement does
       not control spousal support. It may fall within one of the statutory “other factors”
       for the Court to consider, but an antenuptial agreement, as a matter of law, does
       not control spousal support be it a temporary allocation of spousal support or a
       final award.

Consistent with this analysis, when the trial court ordered spousal support, it noted that it had

considered the factors set forth in R.C. 3105.18, but concluded that the provisions of the

agreement would result in an “unfair and inequitable” result. The trial court did not find that the

agreement was unconscionable with respect to spousal support but, instead, seemed to be of the

view that the starting point for its analysis was that the spousal support terms of the agreement

need not be enforced if they were unfair or inequitable. As the Supreme Court has recognized,

however, unfair and inequitable results are often the outcome of valid prenuptial agreements.
                                                18


See Fletcher, 68 Ohio St.3d 464 at paragraphs one and two of the syllabus (recognizing that

prenuptial agreements often result in property distributions that are “disproportionately less than

the party challenging it would have received under an equitable distribution.”) The question for

the trial court is not whether the spousal support terms of a prenuptial agreement are fair, but

whether they are unconscionable when viewed at the time of the divorce. The burden of this

demonstration is on the party alleging the unconscionability. Gross at 109-110.

       {¶41} We therefore agree that the trial court erred by setting aside the spousal support

terms in the prenuptial agreement without conducting the conscionability analysis required by

Gross. Husband’s third assignment of error is sustained.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED BY NOT ENFORCING THE PRENUPTIAL
       AGREEMENT PROVISION AS TO SPOUSAL SUPPORT AS IT IS NOT
       UNCONSCIONABLE.

                                ASSIGNMENT OF ERROR V

       THE COURT ERRED IN ITS DETERMINATION OF [HUSBAND’S]
       INCOME.

                                ASSIGNMENT OF ERROR VI

       THE COURT ERRED IN NOT CREDITING [HUSBAND] FOR COST PAID
       DURING THE PENDENCY OF THE CASE.

                               ASSIGNMENT OF ERROR VII

       THE COURT ERRED IN ORDERING THE ENFORCEMENT                                      OF
       PARAGRAPH 4(A)(4) OF THE PRENUPTIAL AGREEMENT

       {¶42} Husband’s fourth, fifth, sixth, and seventh assignments of error challenge various

aspects of the divorce decree that flowed from the trial court’s decision regarding spousal

support. In light of our disposition of Husband’s third assignment of error, these arguments are

premature. We decline to address them at this time.
                                                19


                                                IV.

       {¶43} Wife’s assignments of error are overruled and, with respect to C.A. No.

11CA0104-M, the judgment of the trial court is affirmed. Husband’s first, second, and third

assignments of error are sustained. His fourth, fifth, sixth, and seventh assignments of error are

premature. With respect to C.A. No. 11CA0103-M, therefore, the judgment of the trial court is

reversed, and this matter is remanded to the trial court for proceedings consistent with this

opinion.

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




       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 Medina, 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

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 to Appellant/Cross-appellee, Barbara Vanderbilt.




                                                      CARLA MOORE
                                                      FOR THE COURT
                                               20




WHITMORE, P. J.
CONCURS.

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

       {¶44} I concur with the majority’s resolution of Barbara’s assignments of error and

therefore agree that with respect to C.A. No. 11CA0104-M, the judgment of the trial court

should be affirmed. I also agree with the majority’s resolution of Shane’s third, fourth, fifth,

sixth, and seventh assignments of error. I write separately, however, because I disagree with the

majority’s resolution of Shane’s first and second assignments of error.

       {¶45} The parties’ prenuptial agreement provided that with respect to the marital

property,

       SHANE and BARBARA intend to use a portion of each party’s respective pre-
       marital assets to purchase their marital residence. The parties specifically intend
       that their new residence shall be their joint asset, which shall continue to be
       maintained by marital funds. “Maintained” shall refer to regular mortgage
       payments, routine upkeep and care. To the extent that either party contributes
       each party’s respective separate funds from the sale of a prior residence or from
       any other separate property to the purchase, capital improvement and/or lump sum
       mortgage reduction of such residence, and in the event of the termination of the
       marriage, the parties agree that each of them shall be entitled to the return of the
       same percentage of equity he or she respectively contributed, limited to: down
       payment, lump sum mortgage reduction, (excluding monthly payment mortgage
       reduction) and the cost of any capital improvements.

The prenuptial agreement included an example of the formula that would be used to implement

the provisions of the property division that also included a mortgage. When they executed the

prenuptial agreement, Shane and Barbara planned to finance the purchase of the marital

residence through a mortgage. Instead, they were able to build the residence debt free. The plain

language of the agreement, therefore, demonstrates that the acquisition of the marital residence
                                                 21


falls outside the prenuptial agreement and is not subject to the formula set forth therein. I would

overrule Shane’s first assignment of error on this basis.

       {¶46} Even if the property division fell within the terms of the prenuptial agreement, I

would overrule Shane’s first and second assignments of error because the trial court’s

methodology is not inconsistent with the prenuptial agreement and Barbara demonstrated that

she contributed to the purchase of the marital residence.


APPEARANCES:

STEVE C. BAILEY, Attorney at Law, for Appellant.

JAMES MCILVAINE, Attorney at Law, for Appellee.
