Menkhaus v. Menkhaus

[Cite as Menkhaus v. Menkhaus, 2022-Ohio-2369.]

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

CHARLES MENKHAUS, : APPEAL NOS. C-210219;
C-210430
Plaintiff-Appellee, : TRIAL NO. DR-2000627

vs. :
O P I N I O N.
NICOLE FENYO MENKHAUS, :

Defendant-Appellant. :

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

Judgment Appealed From Is: Affirmed in Part and Reversed in Part and Cause
Remanded

Date of Judgment Entry on Appeal: July 8, 2022

Phyllis G. Bossin Co., L.P.A., and Phyllis G. Bossin, for Plaintiff-Appellee,

Stagnaro Hannigan Koop, Co., LPA, and Michaela M. Stagnaro, for Defendant-
Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Asserting five assignments of error for our review, defendant-appellant

Nicole Fenyo Menkhaus (“wife”) brings this appeal to challenge the decree of divorce

entered by the Hamilton County Court of Common Pleas, Domestic Relations

Division, and the subsequent judgment of the court which granted attorney fees to

plaintiff-appellee Charles Menkhaus (“husband”). For the following reasons, we

overrule assignments of error one through four relating to the decree of divorce but

sustain the fifth assignment of error relating to the grant of attorney fees. Accordingly,

the judgment of the trial court is affirmed in part and reversed in part.

The Parties’ Prenuptial Agreement

{¶2} The dispute in this case mainly concerns a prenuptial agreement (“the

agreement”) entered into by the parties on August 28, 2012. In relevant part, the

agreement provides the following:

RECITALS

***

D. Each of the parties has made a full disclosure to the other of

all their assets and sources of income, the disclosure of [wife] being

attached hereto marked as ‘Schedule A’ and the disclosure of [husband]

also attached hereto marked as ‘Schedule B’ (the ‘Disclosure

Statements’). In most instances the values shown on the Disclosure

Statements were determined without formal appraisal but those values

were derived from information available and educated estimates made

by each of them. In any event, both parties are satisfied with the values

stated and if not so satisfied, have had the opportunity to have

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independent formal appraisals made of the other’s assets if they should

so choose, but both are satisfied with the amounts so stated.

E. Each party wishes to preserve her/his separate estate, as

such estates now exist and as they may change or be augmented in the

future as hereinafter provided.

F. [Wife] and [husband] have each agreed to accept the

provisions of this Agreement in lieu of all marital rights upon the death

of either of them and the property now owned or hereafter acquired by

either of them or in their estate.

***

2. SEPARATE NONMARITAL PROPERTY OF [HUSBAND]. All

of the separate properties, interests and expectancies of [husband]

described or referred to in Schedule B, all property acquired by

[husband] in exchange for property on Schedule B, all property acquired

by [husband] after the marriage with the proceeds from the sale,

encumbrance or other disposition of [husband]’s property, all

properties or interests in property that [husband] in the future may

receive by gift, inheritance, devise, bequest, disposition in trust, or

otherwise, from [wife] or any other person or source, all inurements,

appreciation, investments, and reinvestments of, and all income from

the same, all interests [husband] may have or come to have in any form

of a retirement or benefit plan and/or pension, and all of [husband]’s

salary and earnings in the future shall be and remain his separate

property after the marriage as fully as if he had not married (all of the

above described property and any similar interest in or rights to

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property hereinafter referred to as ‘[husband]’s separate nonmarital

property’). None of [husband]’s separate nonmarital property shall be

considered community property or marital property for any reason.

***

5. RIGHTS UPON TERMINATION OF MARRIAGE BY

DIVORCE, DISSOLUTION OF MARRIAGE OR ON SUBSEQUENT

ACTION FOR LEGAL SEPARATION.

(a) [Wife] and [husband] each recognize that it is impossible to

presently predict the status of the law with respect to property rights

and spousal support (alimony) in the future, and [wife] and [husband]

therefore desire and intend hereby to define, limit, and agree upon their

respective rights to temporary or pendente lite sustenance spousal

support (alimony), permanent sustenance spousal support (alimony),

lump sum spousal support (alimony), spousal support (alimony) in kind

and/or division of property in the event their marriage should be

terminated by a divorce or dissolution of marriage or in the event a

decree of separation is entered in an action for legal separation (all or

any of such proceedings being hereinafter referred to as ‘termination of

the marriage’).

(b) In the event of termination of the marriage as the result of

an action initiated or instituted by either [wife] or [husband] or by both

of them jointly, then, and in any of such events, the following provisions

shall be applicable:

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[i] [Wife] and [husband] shall each retain as their

property, free of any claims of the other, their own separate

nonmarital property.

***

[iii] All property acquired by [husband] after the date of

the marriage which is titled in his name (individually or as a

tenant in common with [wife] or any other person) or held

for his beneficial interest shall, to the extent of his interest,

be considered as his separate nonmarital property and shall

be fully retained by him, free of any claims of [wife].

***

(c) In the event an action for termination of the marriage is

commenced by either [wife] or [husband], neither shall seek spousal

support, property, or expenses from the other or seek any other relief.

***

12. CONSIDERATION. Both parties acknowledge that they are

under no duress, pressure or undue influence. They mutually desire

that this Agreement be made, realize that certain rights granted by law

are being waived hereunder, and that each is fully satisfied with all the

terms, provisions and conditions of this Agreement. What is stated

herein encompasses all they have voluntarily agreed upon. They each

consider the terms and conditions hereof to be fair, reasonable and

satisfactory.

***

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17. ENTIRE AGREEMENT. This Agreement contains the entire

understanding between [wife] and [husband] with respect to the subject

matter thereof and there are no agreements or understandings, oral or

written, between [wife] and [husband] relating to the subject matter of

this Agreement which are not fully expressed herein.

{¶3} Schedule B to the agreement listed a $200,000 salary as husband’s

source of income. Additionally, a depreciation worksheet for the business “CME

Services LLC Excavation,” was included within the Schedule B. The worksheet

explicitly named CME as the business and listed several of CME’s assets.

Procedural History

{¶4} Husband filed a complaint for divorce against wife on May 14, 2020,

requesting that the agreement, which was attached to the complaint, be enforced.

Wife answered the complaint and asserted a counterclaim for divorce. In her answer,

wife admitted that the parties entered into the agreement but denied that the

agreement should be enforced “in totality.”

{¶5} On June 25, 2020, husband filed a motion for a protective order

pursuant to Civ.R. 26(C) regarding wife’s discovery requests issued on June 3, 2020.

In the motion, husband asserted that wife was requesting extensive information

regarding his assets and argued that such information is irrelevant and could not lead

to “anything discoverable as there is no martial estate pursuant to the parties’

prenuptial agreement.” Husband averred that wife’s requests were “nothing more

than a fishing expedition in light of the parties’ prenuptial agreement,” and argued

that it “would be burdensome, time-consuming and expensive” for husband to

respond to the “irrelevant requests.”

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{¶6} Wife subsequently filed a motion to compel husband to answer the

discovery requests “in full.” Wife claimed in the motion that husband’s business was

not “listed anywhere in the prenuptial agreement because it was the parties’ intent not

to make the business a separate asset as the only value to the business at the time was

the equipment of the business.” Thus, wife asserted that only the equipment of the

business was listed in the agreement as husband’s separate property, and not the

business itself. Wife additionally claimed that she worked at husband’s business “in

many different capacities” after the marriage and, through their joint efforts, the

business “increased exponentially during the marriage and has significant value as of

today.” Accordingly, wife requested that the trial court enforce the agreement only as

to the business equipment “as written” and to find that the business itself was a martial

asset. Lastly, wife argued that the spousal-support provision of the agreement was

“unconscionable or inequitable” because husband’s income had increased

“exponentially” throughout the marriage, resulting in a change of circumstances.

{¶7} On July 8, 2020, the trial court ordered that the parties exchange and

file briefs on the issue of whether the agreement covered husband’s business interests.

Husband and wife subsequently filed written memoranda clarifying and supporting

their respective positions. In a reply to husband’s arguments, wife clarified that she

was only seeking to invalidate the spousal-support provision of the prenuptial

agreement. Regarding husband’s business, wife asserted that she had “never argued

against enforcement” of the agreement. (Emphasis sic.) She stated, “And further,

Wife has never argued that she did not know about [the business.] Neither lack of

disclosure nor lack of knowledge of Husband’s business has ever been an issue raised

by Wife.” She reiterated her argument to be that Husband chose not to list the

business itself as his separate property and, as a result, the business is not his separate

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property under the agreement. Wife additionally attempted to “withdraw” her earlier

assertion that the only value to the business at the time of the agreement was the

equipment of the business and instead asserted that no one really knew why husband

did not include the business itself as his separate property.

{¶8} In response, husband argued that wife’s admission of full knowledge of

the business at the time of the agreement was a showing sufficient to meet the full-

disclosure requirement for enforcement of the agreement. Alternatively, he argued

that the inclusion of the business name on the depreciation worksheet incorporated

into the agreement was a sufficient disclosure. Husband further argued that inclusion

of the depreciation worksheet was for the purpose of indicating the value of the

business in the absence of a formal appraisal. Thus, husband asserted that there could

be “no question” that the business was his separate property under the agreement.

Lastly, husband asserted that wife was seeking to have the agreement “selectively”

enforced to protect herself.

{¶9} After a hearing held on October 22, 2020, the trial court entered a

decision on October 26, 2020, finding that husband’s business interests were his

separate property. The entry found that husband’s affidavit of property lists three

distinct LLCs: C.M.E. Services, LLC, (“CME”), CME Holdings, LLC, and CME Pipe

Lining, LLC. After finding that it was conceded that only CME was in existence at the

time of the marriage, the trial court concluded that the other two businesses could not

be anything other than husband’s separate property under paragraphs 2 and 5(b)(iii)

of the agreement. The trial court went on to find that CME was also husband’s

separate property. The entry stated:

The only logical conclusion, giving effect to all the provisions of

the Prenuptial Agreement including, but not limited to paragraphs D, E,

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F of the Recitals, paragraph 2 and all the provisions of paragraph 5 in

the main body of the contract, that as it reads, these parties intended to

keep all their property separate unless specifically made marital by

placing in both their names. Tellingly, they also agree: ‘In the event an

action for termination of the marriage is commenced by either [Wife] or

[Husband], neither shall seek spousal support, property, or expenses

from the other or seek any other relief.’ This is exactly what Wife is

seeking to do.

{¶10} The trial court continued to find that, under the terms of the agreement,

properties or interest of husband could either be “described” or “referred to” on the

attached Schedule B, and “CME Services LLC Excavation” was “referred to” in the

Schedule B. Lastly, regarding wife’s discovery requests, the court found, “Although

the extent of husband’s business interest would be discoverable as a factor to be

considered in any award of spousal support, this inquiry cannot go forward until the

court has an evidentiary hearing as to whether there are changed circumstances which

render the provisions regarding the waiver of spouse support unconscionable.”

Accordingly, both husband’s motion for a protective order and wife’s motion to compel

were “held in abeyance” until the court ruled on this issue.

{¶11} On January 25, 2021, husband filed a motion for the return of a

computer and cell phone, and for a restraining order. The motion asserted that wife

had a computer and cell phone in her possession that belonged to husband’s business.

Husband claimed that he owned CME Pipe Lining, LLC, formerly operated as CME,

and that wife was issued a cell phone and laptop when she was employed by CME as

an independent contractor through her own LLC, Up4Global, from approximately

May 1, 2018, to November 27, 2019. The motion argued that wife refused to return

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the laptop and cell phone when she left the position at CME and argued that the laptop

contained proprietary business information related to CME. The motion asked the

court to additionally order that wife be restrained from making any copies of the hard

drive or “otherwise obtain and retain information from the computer and cell phone

belonging to husband or his business” and from contacting any of CME’s customers or

vendors, and order that wife turn over to husband any copies she made of either

device.

{¶12} Hearings were held on January 12, January 20, and February 5, 2021.

The trial court entered a decision on the spousal-support issue, the discovery issue,

and the computer/cell phone issue on February 22, 2021. Regarding the spousal-

support issue, the trial court issued findings regarding each relevant factor under R.C.

3105.18(C)(1) and concluded, after a thorough analysis, that wife failed to meet her

burden to show a change of circumstances sufficient to demonstrate that enforcement

of the spousal-support provision in the agreement would be unconscionable.

Accordingly, the court denied wife’s motion to compel discovery and granted

husband’s motion for a protective order. Further, the trial court granted husband’s

motion and issued a restraining order prohibiting wife from copying any information

contained on the computer, laptop, or external hard drive and from contacting any of

CME’s customers or vendors.

{¶13} The trial court entered a decree of divorce on March 2, 2021. The entry

incorporated the entries from October 26, 2020, and February 22, 2021, and stated

that the prenuptial agreement was enforceable in its entirety. Accordingly, the court

found that there was no marital property to be divided, that spousal support was

waived, and that such waiver was not unconscionable at the time of divorce.

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{¶14} Husband subsequently filed a motion for attorney fees pursuant to R.C.

2323.51, asserting frivolous conduct based on the “baseless and unsupportable claims”

advanced by wife. An affidavit of counsel for husband asserted attorney fees in the

amount of $66,463 based on 231.40 hours worked on the case. Wife filed a response

in opposition, asserting that, although not accepted by the trial court, wife’s arguments

were “warranted under existing law or based upon good faith arguments for an

extension of existing law or the creation of new law.” Wife additionally asserted that

her arguments had evidentiary and legal support, although limited by the court’s

denial of her discovery requests.

{¶15} A hearing was held on the issue of attorney fees on August 9, 2021, and

the trial court entered an order granting husband’s motion for attorney fees the

following day. The entry stated:

In this case the parties had a valid, enforceable prenuptial

agreement. [Wife] advanced no good faith argument for invalidation of

its provisions. The only conclusion this court can reach based on the

lack of viable arguments and the unwillingness to see the evidentiary

documents which refuted each frivolous claim is that the litigation was

advanced by [wife] solely to harass and maliciously injure [husband].

{¶16} However, the trial court found that husband would have incurred some

attorney fees to obtain the divorce even without wife’s “frivolous” claims. Therefore,

the trial court only awarded attorney fees incurred after June 15, 2020, the date the

trial court claimed it “became evident that [wife] would be pursuing her claims without

compromise” and the date that husband began drafting the request for a protective

order. Accordingly, the trial court ordered that wife pay husband $55,010 in attorney

fees. Wife filed a motion to stay the fee award pending appeal, which the trial court

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granted on September 13, 2021. Wife timely filed notices of appeal from both the

decree of divorce and the subsequent judgment granting husband’s motion for

attorney fees.

Hearings on Unconscionability of Spousal-Support Provision

{¶17} Husband testified that he started CME, which was his primary source of

income, in 1999. In 2016, CME’s total gross receipts were $2,173,761 and the ordinary

business income was $505,904. In 2017, CME’s total gross receipts were $2,802,487

and the ordinary business income was $169,595. In 2018, CME’s total gross receipts

were $5,155,798 and the ordinary business income was $1,296,168. Husband said that

he received an annual salary from CME. He distinguished his salary from the business

income because he claimed that the business income was retained in the company.

Husband agreed that he also paid distributions to himself on certain occasions.

{¶18} Wife testified that she had a master’s degree and had worked “20-plus

years of business-to-business marketing.” In 2012, wife’s wages were $108,510. She

also had income from “some dividends and interest income,” and had received “a few

hundred thousand” from her father who passed away in 2012. Wife’s total income for

2012 was $156,634. In 2019, wife had a net business income from self-employment of

$118,067. She also had rental income from her property in Switzerland in the amount

of $31,388. Thus, her total income for 2019 was $149,455.

{¶19} Wife said that she and husband had talked about his business during

their marriage. In 2012, they discussed husband separating from a primary account

that made up much of his business and discussed how to replace this account. Wife

testified that she loaned husband $20,000 in 2013 to cover payroll at his business,

which husband paid back within a short period of time. Wife also testified to several

things that she did for husband’s business, including: (1) creating a “unified visual

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brand,” which included branding templates and a company logo; (2) creating the

company’s first website in 2010; (3) coming up with the “d/b/a” CME Sewer Repair;

(4) creating a “target list of plumbers” to work with; (5) introducing husband to SNAP,

which “redesigned” the company logo; (6) teaching husband about value-based

pricing; (7) completing four case studies; (8) creating a segmentation strategy; (9)

recommending a customer relationship management software which was adopted and

implemented at CME; (10) bringing in, engaging, and talking to vendors; (11) acting

as a CME representative while engaging with Trenchless Marketing to “rebrand” the

website; (12) creating the template and infrastructure and setting up monthly

spreadsheets as part of a metrics tracking process; (13) creating a safety process for

CME; (14) applying and implementing an entrepreneurial operating system; (15)

finalizing an almost complete employee handbook; (16) creating a step-by-step

process for new employees to go through; (17) having difficult conversations with

employees; (18) prequalifying interviewees; (19) interacting with the company’s law

firm on a noncompete lawsuit; (20) arranging and participating in an interview for a

magazine; and (21) running the office. Wife admitted that she was not the only one

involved in these things.

{¶20} When asked if she was paid for doing these services, wife said she was

paid for the things that she billed for. She claimed there were “a number of ad hoc”

email responses and conversations that were unaccounted for. Wife worked as an

independent contractor for CME starting in 2018. In 2019, she worked 20 hours per

week for CME. She said her hours in 2018 “would have been less.” Husband capped

her hours at 20 hours per week. She charged husband $130 an hour for her work. She

believed this was not fair compensation. When asked if she felt like she was treated

fairly, wife responded:

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[N]o, I don’t feel that it’s fair. Again, I went in to help [husband],

and I went in to work on – to help him with his business and to help him

with his – his health and happiness as well. The business – the business

grew substantially through – through my input, whether it was direct or

indirectly because [husband] would go out and do what [husband] does

best. We were building this company, and we were working on this

company together for our future, and I’m really – this was – this was us

building together, and ultimately what’s happened is [husband] has

taken this future, and he’s – he’s eliminating me from it altogether. I’m

– it’s obviously – it’s obviously hurtful, but it is not fair. Now, I believe

people in general, regardless of who they are, should be compensated

for the value that they provide and the work that they do. So – so I do

not think that it’s fair that I do all the effort, energy, experience,

knowledge, and that I brought to the table that I brought to [husband]

and that I brought to CME that he should then take this result and be

able to walk away.

{¶21} Wife testified that she believed two key factors contributed to the

“massive growth” of CME in 2018: (1) digital advertising, which she brought to CME,

and (2) husband not “having to stay in the office and manage employee issues and

manage the whole admin side of his business.” She said husband “had his freedom to

go out and do what he does best.” She claimed that she managed the office.

{¶22} Wife was terminated from her position at CME the day before

Thanksgiving in 2019. She obtained a new position in July 2020, working 30 hours

per week at a salary of $50,000. She said it took eight months to find this position due

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to the COVID-19 pandemic. Wife testified that her income since 2012 is “essentially

the same,” but said husband’s income has “increased by over a million dollars.”

{¶23} Husband testified that he is the sole owner of two additional businesses:

CME Services and CME Pipe Lining. Both businesses are S corporations. CME

Holdings is a holding company for the properties he owns. Husband’s total income

for 2019 was $614,624, which includes a salary from CME of $92,558. He agreed that

he had general conversations about the business with wife during the marriage. He

denied that wife ever improved his earning capacity. He denied that he currently laid

pipe for his company and asserted that he was the president and CEO of the company

and handles everything that comes with this position. He said he had been running

CME for 21 years. Husband denied most of wife’s claimed contributions or asserted

that wife’s contributions had no impact on the growth of the company. He testified

that he had always employed an office manager at CME. He asserted that wife’s

implementation of digital marketing actually decreased the net income of the business

because it was a significant expense with no return. He averred that his increased

earning capacity was a result of his company doing good work and building a good

reputation. He also asserted that his business had an edge because of the unique way

they line the pipes. Additionally, he stated, “You know, I can tell you when and why

we had big jumps, because that would be the year that I hired a salesman, and the next

big jump was the year that I hired a second salesman, so that’s where the big jumps

are.”

{¶24} Husband testified that he was already living with wife at the time of the

marriage. Before he signed the prenuptial agreement, he and wife discussed that they

were going to keep separate finances during the marriage. They never had a joint

checking or savings account. He said that he paid rent to wife while living in her home.

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He totaled the rent that he paid to wife at $174,000. He denied taking fancy vacations

with wife, going out to expensive dinners, or belonging to any country clubs. He

denied relying on wife’s income and denied that wife ever relied on his income. He

denied that they ever created a marital standard of living. He testified that he

completed renovations on wife’s house in the amount of $188,000, for which he was

never paid.

{¶25} Wife admitted that her assets had “significantly increased” in value. She

agreed that she received over $100,000 in income “without having to put clothes on.”

Wife testified that she and husband would split the cost 50/50 if they went on vacation.

She agreed that they kept their income “completely separate” during the marriage. She

denied creating a “lavish marital lifestyle.”

{¶26} Matthew Benton works for Trenchless Marketing. He testified that he

met husband around 2011 when he was working for Natural Media. He started

Trenchless Marketing in 2014 or 2015. Husband was one of his first customers at

Trenchless Marketing, after he made a proposal to husband regarding search engine

optimization for his business website. Benton testified that he built CME’s website.

He agreed that wife was involved in some of the process for doing that. He said wife

was one of three contacts at CME that Trenchless would interact with on a semi-

regular basis. Wife would ask questions or make suggestions.

Law and Analysis

Second Assignment of Error1

{¶27} In her second assignment of error, wife argues that the trial court erred

as a matter of law by finding that husband’s business interests were his separate

1 For ease of discussion, we address the assignments of error out of order.

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nonmarital property under the terms of the parties’ prenuptial agreement. In Gross

v. Gross, 11 Ohio St.3d 99, 105, 464 N.E.2d 500 (1984), the Ohio Supreme Court set

forth a three-part test to determine the enforceability of prenuptial agreements (also

known as antenuptial agreements): (1) the agreement must have been entered into

freely without fraud, duress, coercion, or overreaching; (2) the agreement must have

been entered into with full disclosure, or full knowledge, and understanding, of the

nature, value, and extent of the prospective spouse’s property; and (3) the agreement

must not, by its terms, promote or encourage divorce or profiteering by divorce.

{¶28} “A prenuptial agreement is a contract, and generally the law of contracts

applies to a court’s interpretation of the agreement. But a prenuptial agreement is a

‘special type of contract to which certain rules apply.’ ” Gearheart v. Cooper, 1st Dist.

Hamilton Nos. C-050532 and C-060170, 2007-Ohio-25, ¶ 15, quoting Fletcher v.

Fletcher, 68 Ohio St.3d 464, 467, 628 N.E.2d 1343 (1993). “When a prenuptial

agreement provides disproportionately less than the party challenging it would have

received under an equitable distribution, the burden is on the party claiming the

validity of the contract to show that the other party entered into it with the benefit of

full knowledge or disclosure of the assets of the proponent.” Id., citing Fletcher. “The

burden shifts to the party challenging the agreement to prove fraud, duress, coercion,

or overreaching.” Id., citing Fletcher. “In reviewing a trial court’s determination of

the validity of a prenuptial agreement, an appellate court should uphold the trial

court’s findings if they are supported by competent evidence.” Id. at ¶ 16, citing

Fletcher at 468. “And an appellate court ‘will indulge all reasonable presumptions

consistent with the record in favor of [the trial court’s] decision on questions of law.’ ”

Id., quoting Fletcher. “ ‘Courts of appeals have consistently looked to the totality of

the circumstances to determine whether the required knowledge of assets is present.’

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” Gomer v. Gomer, 2017-Ohio-989, 86 N.E.3d 920, ¶ 12 (6th Dist.), quoting

Vanderbilt v. Vanderbilt, 9th Dist. Medina Nos. 11CA0103-M and 11CA0104-M, 2013-

Ohio-1222, ¶ 10.

{¶29} While wife asserts that she is not seeking to invalidate the agreement,

she argues that husband did not make a “full disclosure” in the prenuptial agreement

because he did not specifically list the business CME Services in the agreement;

however, for purposes of validity of a prenuptial agreement, full knowledge of the

assets is sufficient to satisfy the disclosure requirement. See Vanderbilt at ¶ 7-10;

Heimann v. Heimann, 3d Dist. Hancock No. 5-21-11, 2022-Ohio-241, ¶ 33; Gates v.

Gates, 7th Dist. Columbiana No. 06 CO 60, 2007-Ohio-5040, ¶ 62-63. Wife does not

contest that she had full knowledge of the business when the prenuptial agreement

was entered into. In fact, when asked during trial what her understanding was for

husband’s income at the time of the agreement, she testified, “My understanding of

the $200,000 stated in the prenup was that that represented the revenues of his sole

proprietorship in his business.”

{¶30} Therefore, the issue before this court seems to be one solely of

contractual interpretation rather than invalidation of the agreement. Wife claims that

CME was not expressly listed by husband in his Schedule B—only the business

equipment was—and therefore, it was not intended that the business itself be included

as husband’s separate property under the agreement. Additionally, wife argues that

CME Holdings, LLC, and CME Pipe Lining, LLC,—husband’s two additional

businesses formed after the marriage—could not be separate property under provision

5(b)(iii) of the agreement because it is unknown whether these businesses were

purchased with money from CME.

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{¶31} “Under Ohio law, parties to an antenuptial agreement are permitted to

cut one another off entirely from any participation in the other’s estate.” Roseman v.

Glanz, 8th Dist. Cuyahoga No. 93628, 2010-Ohio-680, ¶ 15, citing Hook v. Hook, 69

Ohio St.2d 234, 235, 431 N.E.2d 667 (1982), and Daniels v. Daniels, 10th Dist.

Franklin No. 01AP-1146, 2002-Ohio-2767. “The law of contracts will generally apply

to the application and interpretation of antenuptial agreements; such is a matter of

law to be determined by the courts.” Id., citing Latina v. Woodpath Dev. Co., 57 Ohio

St.3d 212, 214, 567 N.E.2d 262 (1991). “A court should interpret a contract to carry

out the intent of the parties as manifested by the language of the contract.” Id. at ¶ 16,

citing Skivolocki v. East Ohio Gas Co., 38 Ohio St.2d 244, 313 N.E.2d 674 (1974),

paragraph one of the syllabus.

{¶32} “When the terms of the contract are clear and unambiguous, courts may

not create a new contract by finding intent not expressed by the terms.” Id., citing

Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 245-246, 374 N.E.2d 146

(1978). “In analyzing an unambiguous contact, words must be given their plain and

ordinary meaning.” Id., citing Forstner v. Forstner, 68 Ohio App.3d 367, 372, 588

N.E.2d 285 (11th Dist.1990). “If a contract, or portions of a contract, are found to be

ambiguous, then the courts must resort to principles of contract construction.” Id. at

¶ 17, citing Shifrin v. Forest City Ent., Inc., 64 Ohio St.3d 635, 638, 597 N.E.2d 499

(1992). “ ‘All provisions of a contract must be construed together in determining the

meaning and intention of any particular clause or provision therein.’ ” Id., citing

Legler v. United States Fid. & Guar. Co., 88 Ohio St. 336, 103 N.E. 897 (1913). “The

intention of the parties to the agreement is paramount, and contracts should be

interpreted to carry out the intent insofar as it can be ascertained.” Id., citing

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Skivolocki at 244, and In re Estate of Taris, 10th Dist. Franklin No. 04AP-1264, 2005-

Ohio-1516.

{¶33} The key provision of the agreement pertaining to CME is provision 2,

which provides that any separate properties or interests of husband described or

referred to in the Schedule B are his separate property. Included as page three and

four of the Schedule B was the depreciation worksheet for “CME Services LLC

Excavation.” Thus, CME is clearly “referred to” in the Schedule B. Wife argues that

because the worksheet was originally created for tax purposes, there is nothing in the

worksheet to indicate that the inclusion of the business name was to describe an asset

to be included as separate property. However, it is unclear why this worksheet would

have been included within the Schedule B if not for the purpose of identifying

husband’s interests in the company. Recital D of the agreement shows that the

purpose of the Schedule B was to disclose husband’s assets. Clearly, including the

worksheet for the business within the schedule was for the purpose of referencing

husband’s interests in CME and thereby indicating that it was an asset which the

parties intended to keep separate. This is further supported by the additional language

of recital D which states that a full disclosure of assets was made, and the language of

recital E which states that the parties wished to preserve each party’s estate as it

existed at the time of the agreement.

{¶34} When looking at the agreement in its entirety, it is very clear that the

parties intended to keep all their assets completely separate, whether acquired before

or after the marriage. Surely, given that wife was fully aware of husband’s business at

the time of the agreement, a specific exception for the business would have been

included had that been the parties’ intention. We interpret the inclusion of the

depreciation worksheet for CME in accord with the clear intent of the parties at the

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time of entering into the agreement. Accordingly, we agree with the trial court and

hold that CME was included as husband’s separate property under the agreement

because it is referred to in the Schedule B as required under provision 2, which

specifically addressed husband’s separate, nonmarital property.

{¶35} Provision 2 additionally provides that all property acquired by husband

in exchange for such property, as well as all property acquired by husband after the

marriage with proceeds from the sale of his property, plus all income from the same,

and his salary and earnings in the future, shall remain his separate property.

Therefore, even if husband’s two additional businesses were purchased with money

from CME, they would still be included as separate property under the agreement.

Accordingly, this assignment of error is overruled.

Third Assignment of Error

{¶36} In her third assignment of error, wife argues that the trial court erred as

a matter of law by finding that wife failed to meet her burden to demonstrate the

unconscionability of the spousal-support provision in the agreement. “In review of

provisions in antenuptial agreements regarding maintenance or sustenance alimony,

a further standard of review must be applied – one of conscionability of the provision

at the time of the divorce or separation.” Gross, 11 Ohio St.3d at 109, 464 N.E.2d 500.

Although such provisions in prenuptial agreements may generally be considered valid

and even though the agreement in question has been reviewed and found to be

enforceable, “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.” Id.

“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. This is so

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because of the state interest in the welfare of the divorced spouse. Id. “It is a valid

interest of the state to mitigate potential harm, hardship, or disadvantage to a spouse

which would be occasioned by the breakup of the marriage, and a strict and literal

interpretation of the provisions for maintenance of the spouse to be in these

agreements.” Id.

{¶37} The party claiming unconscionability of a provision for maintenance

has the burden of showing the unconscionable effect of the provision at the time of the

divorce or dissolution. Id. “The trial court, in the determination of the issue of

conscionability and reasonableness of the provisions for sustenance or maintenance

of a spouse at the time of the divorce, shall utilize the factors that govern the allowance

of alimony which are set forth in R.C. 3105.18.” Id. at 109-110.

{¶38} The factors to be considered under R.C. 3105.18(C) are: (a) the income

of the parties, from all sources; (b) the relative earning abilities of the parties; (c) the

ages and the physical, mental, and emotional conditions of the parties; (d) the

retirement benefits of the parties; (e) the duration of the marriage; (f) the extent to

which it would be appropriate for a party, because the party will be custodian of a

minor child of the marriage, to seek employment outside the home; (g) the standard

of living of the parties established during the marriage; (h) the relative extent of

education of the parties; (i) the relative assets and liabilities of the parties; (j) the

contribution of each party to the education, training, or earning abilities of the other

party; (k) the time and expense necessary for the spouse who is seeking spousal

support to acquire education, training, or job experience so that the spouse will be

qualified to obtain appropriate employment, provided the education, training, or job

experience, and employment is, in fact, sought; (l) the tax consequences, for each

party, of an award of spousal support; (m) the lost income production capacity of

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either party that results from that party’s marital responsibilities; and (n) any other

factor that the court expressly finds to be relevant and equitable.

{¶39} “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.” Vanderbilt, 9th Dist. Medina Nos. 11CA0103-M

and 11CA0104-M, 2013-Ohio-1222, at ¶ 40. Appellate “review of a trial court’s

decision regarding the conscionability of a spousal-support provision of an

antenuptial agreement ‘implicates a mixed question of law and fact.’ ” Heimann v.

Heimann, 3d Dist. Hancock No. 5-21-11, 2022-Ohio-241, ¶ 53, citing Mann v. Mann,

9th Dist. Lorain No. 09CA009685, 2010-Ohio-1489, ¶ 10. The determination of

whether the agreement is unconscionable is an issue of law which the court reviews de

novo; however, a trial court’s factual findings which support its determination on

conscionability should be reviewed with great deference. Mann at ¶ 10, quoting Saari

v. Saari, 9th Dist. Lorain No. 08CA009507, 2009-Ohio-4940, ¶ 11.

{¶40} The trial court made explicit findings regarding each relevant factor

under R.C. 3105.18(C). Regarding husband’s income, the trial court found that

husband’s income at the time of the agreement was $200,000 and that husband’s

business income had risen “exponentially” from the time of the marriage; however,

despite the net revenue being available to him, husband only takes a “modest salary”

of $96,000 a year and reinvests the remaining value in the business. See R.C.

3105.18(C)(1)(a). Regarding wife’s income, the trial court found that she earned

$100,000 in 2012 when the parties were married, and that wife had a net income of

$149,455 in 2019. See id. Additionally, the trial court found that wife’s current

income, which included her salary, net rental income and investment income, was

$164,000 per year, which was $64,000 more than she earned in 2012. See id. The

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trial court found that both parties had stable earning abilities and that there was no

evidence of any physical, mental, or emotional impairments. See R.C.

3105.18(C)(1)(b), (c). The trial court found that husband had $70,000 in retirement

assets, whereas wife had $2,000,000 in retirement assets. See R.C. 3105.18(C)(1)(d).

Regarding the martial standard of living, the trial court found that husband had paid

rent and living expenses to wife and drove a company truck. See R.C. 3105.18(C)(1)(g).

Additionally, the trial court found that the parties did not take extravagant vacations,

did not belong to any country clubs, and did not go to expensive restaurants. See id.

Further, the trial court found that each spouse paid his or her own way from their

personal assets and income and that husband continued to live modestly although

both parties had wealth. See id.

{¶41} The trial court found that husband had a high school diploma, whereas

wife had advanced degrees, and that both parties had substantial assets, which

increased during the marriage. See R.C. 3105.18(C)(1)(h) and (i). Regarding the

contribution of either party to the other party’s earning ability, the trial court found

that (1) neither party had contributed to the education or training of the other; (2) wife

contended that she increased husband’s earning ability by working for his company,

but this was contested by husband; (3) despite wife’s lengthy testimony about what

she did for the company, she provided no evidence of the effect of these efforts; (4)

husband’s company has had a steady income increase over the entire course of its

history, with the exception of the year that wife was doing the marketing as the

marketing was costly with no return, according to husband; and (5) the big jumps in

income happened twice from 2012 to 2020, and both corresponded to when a new

sales person was hired. See R.C. 3105.18(C)(1)(j).

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{¶42} Finally, the trial court found the following additional information to be

relevant to the analysis: (1) wife suggested the agreement several months prior to the

marriage and it was prepared by her attorney; (2) both parties currently, and at the

time of the marriage, have income which supports them, assets, and real estate; (3)

husband made improvements to wife’s home valued at $188,000 for which he did not

charge wife and did not receive compensation; and (4) wife still owns the home which

is now worth well over $550,000.

{¶43} These findings are supported by the record. While it seems to be

undisputed that husband’s assets increased substantially, this alone is insufficient for

a finding of unconscionability. More than just a general change in circumstances is

required. It must be a change in circumstances which renders enforcement of the

spousal support provision unconscionable. See Vanderbilt v. Vanderbilt, 9th Dist.

Medina No. 13CA0084-M, 2014-Ohio-3652, ¶ 7, 12. The purpose behind invalidating

waivers of spousal support in a prenuptial agreement is to avoid harm, hardship, or

disadvantage to a spouse. See Gross, 11 Ohio St.3d at 109, 464 N.E.2d 500. Here, the

parties have always maintained separate finances, were not dependent on each other

financially during the marriage, did not create a marital lifestyle together, did not own

joint assets, can earn their own income consistent with the lifestyle they have been

independently living, and each have substantial wealth. The fact that husband now

has more assets that he did when wife suggested the agreement is not evidence of any

harm, hardship, or disadvantage to wife. Her way of life and resources are not being

changed in any way because of enforcement of the prenuptial agreement. Wife

essentially argues that it is unfair to enforce the spousal-support provision due to

husband’s change in circumstance. However, valid prenuptial agreements often result

in unfair circumstances. Whether enforcement is unfair is not the standard. See

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Vanderbilt, 9th Dist. Medina Nos. 11CA0103-M and 11CA0104-M, 2013-Ohio-1222, at

¶ 40. The question is whether enforcement of the spousal-support provision is

unconscionable. Id. Wife failed to meet her burden to show that enforcement of the

spousal-support provision in the agreement would be unconscionable. Therefore, this

assignment of error is overruled.

First Assignment of Error

{¶44} In her first assignment of error, wife argues that the trial court erred as

a matter of law in granting husband’s motion for a protective order and denying her

motion to compel discovery responses. Civ.R. 26(B)(1) provides that, generally:

Unless otherwise limited by court order, the scope of discovery

is as follows: Parties may obtain discovery regarding any nonprivileged

matter that is relevant to any party’s claim or defense and proportional

to the needs of the case, considering the importance of the issues at state

in the action, the amount in controversy, the parties’ relative access to

relevant information, the parties’ resources, the importance of the

discovery in resolving the issues, and whether the burden or expense of

the proposed discovery outweighs the likely benefit.

(Emphasis added.)

Upon motion by any party or by the person from whom discovery

is sought, and for good cause shown, the court in which the action is

pending may make any order that justice requires to protect a party or

person from annoyance, embarrassment, oppression, or undue burden

or expense, including * * * (1) that the discovery not be had; * * * [or]

(4) that certain matters not be inquired into or that the scope of

discovery be limited to certain matters; * * *.”

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Civ.R. 26(C).

{¶45} We review a trial court’s decision to grant a protective order under

Civ.R. 26(C) for an abuse of discretion. Ruwe v. Bd. of Twp. Trustees, 29 Ohio St.3d

59, 61, 505 N.E.2d 957 (1987); accord Grace v. Mastruserio, 182 Ohio App.3d 243,

2007-Ohio-3942, 912 N.E.2d 608, ¶ 29 (1st Dist.), citing Ruwe. An abuse of discretion

is more than an error of law or judgment; it implies an attitude on the part of the trial

court that is unreasonable, arbitrary, or unconscionable. Id.

{¶46} Wife challenges the trial court’s grant of husband’s request for a

protective order and argues that she was “hamstrung” in preparing her case, especially

regarding unconscionability of spousal support. The discovery requests which

husband sought to avoid are not in the record. Husband’s motion for a protective

order asserted that wife had issued a “wide-ranging request asking for extensive

information” regarding husband’s assets and asserted that it would be burdensome

and time-consuming to respond given that it was an irrelevant request considering the

prenuptial agreement. It should be noted that the trial court did not grant the

protection order until the conclusion of all hearings related to the agreement.

Additionally, at the conclusion of the first hearing on spousal support, the trial court

ordered that husband turn over his tax returns for 2019 before the next court hearing

once it became clear that the information was needed, and wife did not have it. The

2019 tax returns were provided to wife before the next hearing. Tax returns for the

previous years had already been provided to wife. Thus, the trial court ordered the

parties to turn over the information that it found to be relevant to the precise issues

before it. Wife’s argument seems to be focused on her entitlement to information

about husband’s assets as this was a relevant factor to be considered when invalidating

the spousal-support provision. However, there does not seem to be any dispute that

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husband’s assets significantly increased. In fact, the trial court made a finding that

husband’s income had risen exponentially from the time of the marriage when

considering the R.C. 3105.18(C) factors. The scope of discovery is limited to relevant

information that is proportional to the needs of the case, and the trial court was within

its discretion to limit discovery accordingly to protect husband from undue burden or

expense. See Civ.R. 26(B)(1), (C). Therefore, we cannot determine the trial court

abused its discretion in granting the protection order. Accordingly, this assignment of

error is overruled.

Fourth Assignment of Error

{¶47} In her fourth assignment of error, wife argues that the trial court erred

as a matter of law by granting husband’s motion for return of the computer and cell

phone. Specifically, wife argues that the computer and cell phone were gifts under

R.C. 3105.171(A)(6)(a)(vii). Husband argues that they were purchased by CME for

wife to use only and were not gifts. A trial court’s factual findings as to the

characterization of property is reviewed under the distinct sufficiency-and-weight-of-

the-evidence standards. Boolchand v. Boolchand, 1st Dist. Hamilton No. C-200111,

2020-Ohio-6951, ¶ 9, citing McKenna v. McKenna, 1st Dist. Hamilton No. C-180475,

2019-Ohio-3807, ¶ 9-10.

{¶48} During trial, husband denied that the computer and cell phone were

gifts to wife. He asserted that they were paid for by the company. Husband did agree

that he bought the laptop for wife for personal and business use; however, he asserted

that it was to use, not to keep. Husband testified that he did not know when the

company bought wife the cell phone, but it was put on the company’s account. He

agreed that it was just the company information on the devices that he was concerned

about. Husband said that, after wife was fired, she used a program called Keeper to

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lock everyone at CME out of anything that required a password, and when he asked

wife for the password, she told him that he had to pay her $1.4 million before she would

give him the password. Wife disputed that this occurred. Husband testified that, as a

result, he had to change over 214 passwords. He claimed this to be the reason why he

wanted the return of the computer and cell phone as he was concerned about all of the

company information on the devices and what wife would do with this information.

{¶49} At the conclusion of the spousal-support hearings, the parties discussed

this issue on the record. Counsel for husband expressed that husband would be willing

to allow removal of company data from the cell phone, computer, and external hard

drive which wife possessed, so long as it was removed by someone experienced in

information technology. Husband expressed concern that simply allowing wife to

delete the files would not actually remove the data from the devices. Wife would not

allow removal of the files from the devices because she claimed the templates for the

documents remained hers and she did not want the templates to be shared with the

company. She agreed that the company-specific data could be removed, but not the

templates that she created. Counsel for husband expressed that these templates were

made when she was working for the company. After further discussion between the

parties, the trial court stated, “All right. You either decide or I am going to order, and

nobody is going to like my order. So I suggest you make a compromise position at this

point, a compromise offer right now.” The parties then agreed to set up a conference

call with an information technology professional to discuss this issue, and the court

agreed to let the parties work it out.

{¶50} What is clear from the record is that the trial court tried to have this

issue resolved between the parties. What is unclear from the record is what happened

between the time that the trial court agreed to let the parties work it out by consulting

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with a professional and when the trial court ordered the devices be returned to

husband. Wife argues that it was an abuse of discretion for the trial court to order the

return of the devices when husband agreed he just wanted the company information

removed from them. However, the only inference that can be made from the record is

that the parties did not reach an agreement on what information would be removed

and what would not be removed from the devices in order to allow wife to keep the

devices. Therefore, a property-characterization determination was required. It

appears that the trial court rejected wife’s assertion that the devices were gifts to her

and instead ordered the return of devices to husband. We cannot determine this

finding was not supported by the evidence or was against the manifest weight of the

evidence. Accordingly, this assignment of error is overruled.

Fifth Assignment of Error

{¶51} In her fifth assignment of error, wife argues that the trial court erred as

a matter of law by granting husband’s motion for attorney fees. “R.C. 2323.51 allows

the trial court to award fees to any party adversely affected by frivolous conduct.”

Gearhart, 1st Dist. Hamilton Nos. C-050532 and C-060170, 2007-Ohio-25, at ¶ 24,

citing Bryan v. Bryan, 161 Ohio App.3d 454, 2005-Ohio-2739, 830 N.E.2d 1216, ¶ 7

(1st Dist.); See R.C. 2323.51(B)(1).

The statute defines frivolous conduct as conduct by a party to a

civil action that (1) serves merely to harass or maliciously injure another

party to the action or is for another improper purpose, such as causing

unnecessary delay or a needless increase in the cost of litigation; (2) is

not warranted under existing law and cannot be supported by a good-

faith argument for a modification or establishment of new law; (3)

consists of allegations or other factual contentions that have no

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evidentiary support; or (4) consists of denials or factual contentions that

are not warranted by the evidence.

Id., citing R.C. 2323.51(A)(2)(a).

{¶52} “The standard of review applicable to the imposition of sanctions for

frivolous conduct under R.C. 2323.51 depends on whether there are questions of law

or of fact, or whether there are mixed questions of law and fact.” Id. at ¶ 25, citing

Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, ¶ 25 (1st

Dist.). “With respect to purely legal questions, an appellate court employs a de novo

standard of review.” Id. at ¶ 25, citing Riston at ¶ 27. “On the other hand, an appellate

court should not disturb a trial court’s findings of fact if the record contains competent,

credible evidence to support the findings.” (Citation omitted.) Id. The trial court’s

ultimate decision to award attorney fees based on frivolous conduct that adversely

affected a party is reviewed for an abuse of discretion. Id.

{¶53} Here, the trial court based its decision to award husband attorney fees

on whether a good-faith argument existed for wife to invalidate the agreement. We

interpret this to be a finding that the conduct was frivolous pursuant to R.C.

2323.51(A)(2)(a)(ii), which requires conduct that is not warranted under existing law,

cannot be supported by a good-faith argument for an extension, modification, or

reversal of existing law, or cannot be supported by a good-faith argument for the

establishment of new law. A determination under this provision involves a legal

analysis that we review de novo. Gauthier v. Gauthier, 1st Dist. Hamilton Nos. C-

170387 and C-170398, 2018-Ohio-4970, ¶ 18.

{¶54} R.C. 2323.51 must be applied carefully so as not to chill legitimate

claims. Id. at ¶ 35, quoting Hickman v. Murray, 2d Dist. Montgomery No. CA 15030,

1996 Ohio App. LEXIS 1028, *13 (Mar. 22, 1996). The statute was designed to chill

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egregious, overzealous, unjustifiable, and frivolous conduct; it was not intended to

punish mere misjudgment or tactical error. Id., quoting Hickman. The test for

deciding whether a claim is warranted under existing law is objective and requires a

determination of whether no reasonable lawyer would have brought the action in light

of existing law. Id., quoting Hickman. Said differently, a claim is frivolous only where

it is absolutely clear under the existing law that no reasonable lawyer could argue the

claim. Id., quoting Hickman.

{¶55} In essence, wife advanced two arguments in the trial court for

invalidating the agreement: (1) husband’s businesses were not included as his separate

property under the express terms of the agreement, and (2) enforcement of the

spousal-support provision of the agreement would be unconscionable because wife

contributed to husband’s earning ability, and this resulted in a substantial increase to

husband’s income.

{¶56} Regarding wife’s first argument pertaining to whether CME was

included as husband’s separate property under the agreement, the argument was

based on an arguable interpretation of the agreement. As the business was mentioned

solely in the depreciation worksheet included within the Schedule B, it was not a

straightforward, yes-or-no, answer on whether the business was included under the

language of the agreement. It required interpretation. Additionally, whether

husband’s other two businesses were included under the agreement hinged on

whether the trial court found that CME was included under the agreement as

husband’s separate property. Because these issues were not straightforward under the

agreement, we cannot say that no reasonable attorney would have advanced the

argument.

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{¶57} Regarding wife’s second argument pertaining to the spousal-support

provision, the argument she advanced was presented under R.C. 3105.18(C)(1)(a) and

(j), which instructed the trial court to consider the parties’ income and any

contribution of one spouse to the earning ability of the other spouse when determining

the unconscionability of enforcing a spousal-support provision. Whether wife

contributed to husband’s earning ability hinged on presentation of facts and

credibility, and the trial court could have gone either way on this issue as it basically

came down to which party was more believable. While the argument may not have

ultimately prevailed, this does not make her argument frivolous. See Pitcher v.

Waldman, 1st Dist. Hamilton No. C-160245, 2016-Ohio-5491, ¶ 21. Wife’s arguments

were presented based on factors that the trial court was required to consider.

Accordingly, we cannot say that no reasonable attorney would have advanced this

argument. Therefore, we hold that the trial court erred in finding that wife’s conduct

in bringing these claims was frivolous under R.C. 2323.51(A)(2)(a)(ii).

{¶58} The trial court made an additional finding under R.C.

2323.51(A)(2)(a)(i) that wife’s claims were brought merely to harass husband.

However, this finding was based on the trial court’s previous finding that there was no

good-faith basis for advancing the arguments that she did. Because we hold that this

determination was in error, we also hold that the trial court’s additional finding was

not supported by the record. Accordingly, this assignment of error is sustained.

Conclusion

{¶59} Having overruled the first, second, third and fourth assignments of

error, we affirm the trial court’s decree of divorce. Having sustained the fifth

assignment of error, we reverse the trial court’s judgment awarding attorney fees to

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husband and remand the cause with instructions to enter judgment denying husband’s

motion for attorney fees.

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

BERGERON and BOCK, JJ., concur.

Please note:

The court has recorded its own entry this date.

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