[Cite as Strohm v. Strohm, 2014-Ohio-3405.]



                         IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



DAVID STROHM,                                 :       APPEAL NOS. C-130691
                                                                  C-130698
         Plaintiff-Appellant/Cross-           :       TRIAL NO. DR-0602238
         Appellee,
                                              :
   vs.
                                              :             O P I N I O N.
GINA STROHM,

         Defendant-Appellee/Cross-            :
         Appellant.




Appeals From: Hamilton County Court of Common Pleas, Domestic Relations
             Division

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded; Appeal Dismissed in Part in C-130698

Date of Judgment Entry on Appeal: August 6, 2014



John D. McClure, for Plaintiff-Appellant/Cross-Appellee,

Robert W. Carran, for Defendant-Appellee/Cross-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.

       {¶1}      In this divorce action, plaintiff-appellant/cross-appellee David Strohm

(“Husband”) and his former wife, defendant-appellee/cross-appellant Gina Strohm

(“Wife”) appeal a post-decree decision of the trial court regarding a lump-sum award

to Wife, the denial of Wife’s motion to modify spousal support, and the denial of

Wife’s motion for Husband’s failure to disclose a marital asset.

       {¶2}      The parties divorced in March 2008, and their decree of divorce

incorporated a separation agreement. At the time of the separation agreement,

Husband was retired from United Airlines, and was employed as a pilot by Jet

Airways India. Husband earned $11,000 per month after foreign taxes, and he spent

$1,000 per month of his net income caring for his mother. Paragraph 17 of the

parties’ separation agreement addressed Husband’s support obligation, and provided

the following:

       The husband agrees that he shall pay to the wife as and for the support

       of their minor child and as for spousal support the total sum of $5,000

       per month for a period of sixty (60) months, with an effective

       commencement date of August 15, 2007 * * *. [T]he portion of this

       total sum which is designated as spousal support shall be payable for

       60 months certain. If husband’s mother dies during the sixty (60)

       month period of time, the $5,000 support obligation shall increase by

       $500.00 per month. [T]he Court shall retain jurisdiction with respect

       to the issue of spousal support for eight (8) years after the entry date of

       a divorce decree.




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       {¶3}   In November 2010, the trial court modified Husband’s support

obligation, after Husband’s employment with Jet Airways had ended in September

2009 and Husband had begun working with United Airlines again at a reduced

salary. The trial court imposed a downward modification of Husband’s support

obligation; instead of paying $5,000 per month as provided in Paragraph 17, the trial

court ordered Husband to pay $1,079.14 per month in child support and $1,750 per

month in spousal support, retroactive to October 2009.

       {¶4}   In 2011, Wife filed a motion for contempt and sought to compel

Husband to increase his support obligation by $500 per month, arguing that

Husband’s mother had died in October 2010, but that Husband had not increased his

support payment as provided by Paragraph 17 of the separation agreement. In June

2012, the trial court found Husband in contempt for failing to pay the $500 increase;

however, the trial court stayed the imposition of a penalty, and allowed Husband to

purge the contempt. Husband could purge the contempt by paying a lump-sum

amount to Wife by a certain date, and if he did not, Wife could contact the court for

imposition of sentence. The trial court stayed its order pending Husband’s appeal. A

panel of this court determined that the June 2012 entry was not a final, appealable

order because the trial court had not yet imposed a penalty or sanction, and

dismissed his appeal in the case numbered C-120460.

       {¶5}   Prior to the trial court’s June 2012 decision finding Husband in

contempt for failing to increase his support payments upon the death of his mother,

Wife filed a motion to modify support in May 2012. Wife sought to extend spousal

support beyond the 60-month period, which would end in August 2012, arguing that

Husband’s employment with United Airlines beyond his 65th birthday was not

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contemplated at the time of the separation agreement.            Wife also argued that

Husband’s tax records demonstrated that Husband’s earnings had increased since

the trial court had issued a downward modification of his support. Wife also filed a

motion for attorney fees in connection with her May 2012 motion to modify, in which

she argued that Husband’s pro bono counsel had filed several motions in response to

her motion to modify, disadvantaging Wife who had to pay her counsel.

       {¶6}    In March 2013, Wife filed a motion for Husband’s failure to disclose a

retirement asset in the amount of $26,563. The evidence presented in relation to

Wife’s motion showed that United Airlines had entered into a multimillion-dollar

settlement with a pilots’ union, the Air Line Pilots Association (“ALPA”), after United

Airlines had turned over its retirement plan to the Pension Benefit Guaranty

Corporation. United Airlines paid ALPA in the form of a convertible note (the “ALPA

note”), and Husband received $140,000. One of ALPA’s members, John Mansfield,

sued ALPA in 2006, alleging that ALPA had violated its duty of fair representation in

distributing the ALPA note proceeds by favoring junior pilots. The Mansfield suit

became a class action, and in 2009, Husband received notification that he was a class

member. ALPA settled the Mansfield class action, and Husband received $26,563 as

his portion of the settlement in February 2010 (the “Mansfield settlement”).

       {¶7}    In Paragraph 7 of the parties’ separation agreement, the parties

acknowledged receipt of the $140,000 payment from the ALPA note, and also

acknowledged that the payment had been spent. Paragraph 7 also stated that “[w]ith

respect to the * * * assets identified in this paragraph, there shall be no liability from

one party to the other.” Paragraph 13 of the parties’ agreement governing disclosure

of assets provided in pertinent part that, “[i]f the wife discovers any marital asset

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which was in existence prior to August 9, 2007, and which was not disclosed, the

husband agrees to transfer all of such asset to the wife.”

                 The Trial Court’s Hearing on the Pending Motions

       {¶8}   The trial court held a hearing on Wife’s March 2013 motion regarding

the Mansfield settlement and Wife’s May 2012 motion to modify support, as well as

other pending motions, including Husband’s motion for contempt against Wife for

her failure to make $93,270 in mortgage payments to him as provided by their

separation agreement. The trial court entered its written decision on the pending

motions in September 2013.         As to the Mansfield settlement, the trial court

determined that it could not be severed from the ALPA note payment of $140,000

identified in Paragraph 7, and thus Paragraph 7 foreclosed Wife from asserting any

claim to the Mansfield settlement. The trial court also determined that Paragraph 13

of the agreement did not apply because Husband had not been identified as a class

member until 2009, and he had not received his portion of the Mansfield settlement

until 2010.

       {¶9}   With regard to Wife’s motion to modify, the trial court determined that

Husband’s income was not substantially different from his income at the time of the

2010 support modification, and that Wife’s motion was essentially an attempt to

relitigate the 2010 modification.     The trial court continued for discovery Wife’s

motion for attorney fees related to her modification motion.

       {¶10} The trial court also noted that the parties stipulated that Husband

never purged the June 2012 contempt by paying the lump-sum amount owed to Wife

after his mother’s death. The trial court vacated its finding of contempt against

Husband and awarded Wife $11,000 as a lump-sum judgment. The trial court found

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Wife in contempt for failing to pay $93,270 in mortgage payments to Husband;

however, the trial court determined that Wife could apply $11,000 as an offset to the

$93,270 owed to Husband.

       {¶11} Husband and Wife both appeal the trial court’s order.

                                  Lump-Sum Judgment

       {¶12} In two assignments of error, Husband appeals the trial court’s decision

awarding Wife a lump-sum judgment of $11,000, representing spousal support owed

to Wife under Paragraph 17 of the separation agreement. As a general matter, an

appellate court reviews a trial court’s decision regarding support matters for an

abuse of discretion. See Hall v. Kuwatch, 1st Dist. Hamilton No. C-100480, 2011-

Ohio-3050, ¶ 8; Burkart v. Burkart, 191 Ohio App.3d 169, 2010-Ohio-5363, 945

N.E.2d 557, ¶ 15 (10th Dist.). However, we review de novo the interpretation of a

separation agreement incorporated in a divorce decree. Shrader v. Henke-Shrader,

1st Dist. Hamilton No. C-130162, 2013-Ohio-5894, ¶ 9.          We presume that the

language of a separation agreement encompasses the parties’ intent, and we will not

resort to rules of contract construction absent an ambiguity in the contract. Id.

       {¶13} Husband argues that the $500-per-month increase in his support

obligation upon the death of his mother was based upon his $5,000-per-month

support obligation.   According to Husband, when the trial court decreased his

support obligation in November 2010, so that he no longer paid $5,000 per month,

the $500-per-month increase became unenforceable. Wife argues that the $500

conditional increase operates independent of the $5,000 support payment; thus,

Wife defends the $11,000 award.




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       {¶14} We agree with Husband that the trial court’s lump-sum judgment of

$11,000 to Wife does not take into account that the trial court had previously found a

change in Husband’s circumstances effective October 2009, which then had led the

trial court to decrease Husband’s $5,000-per-month support obligation. Instead, the

trial court’s lump-sum award assumes that Husband automatically owed the full

$500-per-month increase beginning in November 2010, after the death of his

mother, until August 2012, when the 60-month period ended. We do not agree with

Husband’s argument, however, that the $500 increase in support became

unenforceable once the trial court had decreased his $5,000 support obligation.

Taken to its logical conclusion, Husband’s argument would mean that, even if his

$5,000 support obligation had increased, he would not owe $500 more per month

upon the death of his mother. This defies the plain language of the agreement.

       {¶15} Although the trial court characterized the $500-per-month increase as

solely spousal support, Paragraph 17 of the parties’ separation agreement provides

that “the $5,000 support obligation” increases by $500 upon the death of Husband’s

mother. Paragraph 17 also provides that the $5,000 support obligation includes both

child and spousal support. Thus, we determine that the $500 conditional increase

includes both child and spousal support under the plain language of the separation

agreement. Moreover, because the $5,000 support obligation no longer existed at

the time of Husband’s mother’s death based upon Husband’s change in

circumstances, the trial court should have considered whether the $500-per-month

increase in support from November 2010 to August 2012 should have been subject to

modification as well. See R.C. 3105.18 and 3119.79. Therefore, we sustain Husband’s

assignments of error to the extent that we determine the trial court erred in awarding

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                    OHIO FIRST DISTRICT COURT OF APPEALS



Wife $11,000 as a lump-sum judgment. We reverse that portion of the trial court’s

decision and remand the matter to the trial court to analyze whether the $500

monthly increase in support effective upon Husband’s mother’s death, as provided in

Paragraph 17 of the parties’ separation agreement, should be subject to modification

under R.C. 3105.18 and 3119.79.

               Wife’s Motion to Modify Support and Motion for Fees

       {¶16} In the first assignment of error of Wife’s cross-appeal, Wife appeals the

trial court’s denial of her May 2012 motion to modify spousal support.

       {¶17} Before this court can exercise jurisdiction over an appeal, an order of a

lower court must be a final, appealable order and meet the requirements of R.C.

2505.02, and, if applicable, the order must contain a Civ.R. 54(B) certification that

there is “no just reason for delay.” Chef Italiano Corp. v. Kent State Univ., 44 Ohio

St.3d 86, 541 N.E.2d 64 (1989); Internatl. Bhd. of Elec. Workers, Local Union No. 8

v. Vaughn Industries, L.L.C., 116 Ohio St.3d 335, 2007-Ohio-6439, 879 N.E.2d 187, ¶

7. In Vaughn Industries, L.L.C., the Ohio Supreme Court determined that no final,

appealable order exists in the absence of Civ.R. 54(B) certification where attorney

fees are requested in an original pleading, and the order appealed from does not

dispose of the request for attorney fees. Vaughn Industries, L.L.C. at paragraph two

of the syllabus; see Cook & Logothetis, L.L.C. v. King, 1st Dist. Hamilton No. C-

130673, 2014-Ohio-3346, ¶ 8. Moreover, where a trial court’s order raises the issue

of attorney fees and defers its adjudication, that order is not final and appealable. In

re Removal of Sites, 4th Dist. Lawrence No. 05CA39, 2006-Ohio-3787, ¶ 16.

       {¶18} Wife also filed a motion for attorney fees in conjunction with her May

2012 modification motion, arguing that Husband had used his counsel’s pro bono

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                    OHIO FIRST DISTRICT COURT OF APPEALS



legal services as an opportunity to file several motions in response to her motion to

modify. R.C. 3105.73(B) permits a trial court to award attorney fees and litigation

expenses to either party in a post-decree motion or proceeding where the court finds

that an award would be equitable. In this case, although the trial court denied Wife’s

motion to modify, it did not decide Wife’s request for attorney fees related to her

motion. Instead, the trial court’s entry continued the fee matter for discovery, and

the trial court did not include a Civ.R. 54(B) certification in its entry. Therefore, that

portion of the trial court’s decision regarding Wife’s motion to modify is not a final,

appealable order. See Cook & Logothetis, L.L.C. at ¶ 8; In re Removal of Sites at ¶

16; compare Pursel v. Pursel, 8th Dist. Cuyahoga No. 91837, 2009-Ohio-4708, ¶ 1,

fn. 1 (determining that a final, appealable order existed where the record contained

no indication that the trial court intended to award attorney fees as part of marital-

property division, thus the fee matter was ancillary to the finality of the divorce

decree).

       {¶19} Because we lack jurisdiction over Wife’s motion to modify support, we

dismiss that portion of Wife’s appeal.

                  Wife’s Motion For Husband’s Failure to Disclose

       {¶20} In her second assignment of error, Wife challenges the trial court’s

decision denying her March 2013 motion brought under Paragraph 13 of the

separation agreement in which Wife argues that Husband failed to disclose his

receipt of $26,563 in conjunction with the Mansfield settlement, and that she is

entitled to an award of $26,563.

       {¶21} We agree with the trial court’s determination that Wife’s March 2013

motion contradicts the plain language of the parties’ separation agreement. See

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Blazic v. Blazic, 1st Dist. Hamilton Nos. C-040414 and C-040440, 2005-Ohio-4417,

¶ 13.   Paragraph 13 does not apply to Husband’s $26,563 payment from the

Mansfield settlement because the evidence shows that Husband did not receive the

payment until February 2010, well after the entry of the decree of divorce. Nor could

Husband have known about this payment at the time of the decree, as he was not

even notified of his membership in the class action until 2009.        Furthermore,

Paragraph 7 specifically identified the ALPA note as an asset, and provided that

neither party could be liable with respect to such asset. Husband’s $26,563 payment

from the Mansfield settlement arose from the ALPA note identified in Paragraph 7;

therefore, Wife cannot claim that Husband is liable to her for the $26,563 payment.

        {¶22} The trial court properly denied Wife’s motion for Husband’s failure to

disclose a marital asset. We overrule Wife’s second assignment of error.

                                       Conclusion

        {¶23} In conclusion, we reverse that portion of the trial court’s judgment

awarding Wife $11,000 as a lump-sum judgment, and we remand the matter to the

trial court to analyze whether the $500 monthly increase in Husband’s support

obligation upon the death of his mother as provided by the parties’ separation

agreement should be subject to modification under R.C. 3105.18 and 3119.79. Wife’s

cross-appeal from that portion of the trial court’s decision denying her motion to

modify is dismissed on jurisdictional grounds. Finally, that portion of the trial

court’s judgment denying Wife’s motion for Husband’s failure to disclose the

$26,563 payment is affirmed.

                                                              Judgment accordingly.



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CUNNINGHAM, P.J., and DINKELACKER, J., concur.




Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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