Dianne F. Millstein v. Norman Millstein, 02-LW-3793

Decision Date12 September 2002
Docket Number79617,02-LW-3793,80188,80185,80187,79754,80184,and 80963,80186
Citation2002 Ohio 4783
PartiesDIANNE F. MILLSTEIN, Plaintiff-Appellant/Cross-Appellee v. NORMAN MILLSTEIN, et al., Defendants-Appellees/Cross-Appellants NOS. 80184, 80185, 80186, 80187, 80188, and 80963, 79617, 79754,
CourtOhio Court of Appeals

CHARACTER OF PROCEEDING Civil appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-259337

For Plaintiff-Appellant/Cross-Appellee: JOYCE E. BARRETT Attorney at Law, 800 Standard Building, 1370 Ontario Street, Cleveland, Ohio 44113

For Defendant-Appellee/Cross-Appellant, Norman Millstein: MARGARET E. STANARD, Attorney at Law, 748 Standard Building, 1370 Ontario Street, Cleveland, Ohio 44113

For Defendant-Appellee/Cross-Appellant, Kevan Millstein: JOHN R. CLIMACO, ANTHONY J. GAROFOLI, DAVID M. CUPPAGE, MARGARET M. METZINGER, Attorneys at Law, 1228 Euclid Avenue, #900, Cleveland, Ohio 44115

Guardian Ad Litem: JACOB A. H. KRONENBERG, Attorney at Law, 4403 St. Clair Avenue, Cleveland, Ohio 44103-1125

For N.K.M. Investment Co., Ltd.: FRED N. CARMEN, Co., Ltd.: Attorney at Law, 27800 Cedar Road, Beachwood, Ohio 44122

JUDGE TERRENCE O'DONNELL:

{¶1} Dianne F. Millstein filed eight notices of appeal from separate domestic relations court judgments in connection with her divorce from Norman Millstein.

{¶2} In Appeal No. 79617, she challenges the April 11, 2001 order of the court which modified her ex-husband's child support obligation from $7,900/month per child for two children of the marriage, Alana and Joshua, to $7,900/month for Alana after the court granted him custody of his minor son, Joshua. In Appeal No. 79754, she contends that the court erred in its May 15, 2001 order, which denied her motion to vacate that child support modification order.

{¶3} In Appeal Nos. 80184, 80185, 80186 and 80187, she contests the validity of four court orders, three regarding custody and schooling of Joshua and one regarding the court's exercise of jurisdiction over a $72,000 state income tax credit issued to Norman Millstein but intercepted by the Child Support Enforcement Agency.

{¶4} In Appeal No. 80188, she asserts the court erred in its September 24, 1999 judgment, which found the parties' prenuptial agreement valid, and in its division of property and award of spousal support in its August 13, 2001 final judgment and divorce decree.

{¶5} And in App. No. 80963, she argues that the court erred in denying her motion to vacate a post decree temporary restraining order involving the education of Joshua.

{¶6} Norman Millstein and Kevan Millstein, individually and as Trustee of the Millstein Family Gift Trust, the AL-JO Trust, and the Kevan Millstein Trust (the "Trusts"), have filed separate cross-appeals from the final judgment and divorce decree, thereby seeking to preserve certain arguments in the event we do not affirm the trial court.

{¶7} After a thorough review of the extensive record filed here, we have concluded that the court did not commit reversible error in issuing its orders. Accordingly, we reject each appeal, conclude that the cross-appeals are moot, and therefore affirm the respective judgments of the trial court.

{¶8} The history of the case reflects that after his first divorce, sometime in 1975, Norman Millstein, then aged 46, met Dianne Falcone, aged 22, while both were living in the same apartment complex in Bedford, Ohio. She had been previously divorced as well. They began dating, and later that year Norman offered Dianne a job as a leasing agent for an apartment complex in Las Vegas, Nevada, in which he had a partial interest.

{¶9} The couple continued their relationship, and approximately one year later, in August 1976, Dianne returned to Cleveland and began living with Norman. Thereafter, they began to discuss marriage; at that time, Norman had an estimated net worth of $28 million while Dianne had a net worth slightly over $10,000.

{¶10} In contemplation of marriage, and in furtherance of his desire to limit Dianne's interest in his estate, and to protect the interests of his five children from his previous marriage, Norman insisted that he and Dianne enter into a prenuptial agreement. Norman retained Morlee Rothchild to draft the agreement, and Dianne retained her own counsel, William Kraus. After about six weeks of negotiations, on September 19, 1981, the parties signed the prenuptial agreement, which set forth the parties' respective rights in the event the marriage should terminate.

{¶11} Five days later, on September 24, 1981, Norman and Dianne married in a private ceremony by Judge Manny Rocker. Two children were born as issue to this marriage, Alana [d.o.b. 6-17-84] and Joshua [d.o.b. 6-3-86].

{¶12} Dianne became unhappy in the marriage, and by 1997, she retained a divorce attorney. Thereafter, on March 3, 1998, she sued for divorce, and later joined N.K.M. Investment Co., Ltd., and Kevan Millstein, individually and as the Trustee of the Millstein Family Gift Trust, the AL-JO Trust, and the Kevan Millstein Trust, as additional defendants.

{¶13} On August 21, 1988, the court journalized an interim agreed entry, whereby Dianne obtained custody of the couple's two minor children and Norman agreed to pay her spousal support of $3,000/ month and child support in the amount of $7,900/month per child, for an aggregate support obligation of $18,800/month.

{¶14} Throughout the course of the divorce proceedings, Dianne challenged the prenuptial agreement; as a result, the court litigated that issue separately from July 7 through July 13, 1999. Following those proceedings, on September 24, 1999, the court issued an order finding the prenuptial agreement to be valid and enforceable.

{¶15} The court thereafter conducted trial on the remaining issues in the case from March 6, to April 17, 2000.

{¶16} Following trial, the court apparently learned that Dianne had unilaterally removed Joshua from his private residential school in California, in violation of the shared parenting plan. Therefore, it ordered her to return him to the school, and upon her failure to do so, on November 15, 2000, the court made Norman the custodial parent of Joshua. Thereafter, on April 6, 2001, Norman filed a motion to modify child support to eliminate his $7,900/month payment to Dianne for the care of Joshua; the court granted this motion on April 11, 2001. Thereafter, on April 26, 2001, Dianne moved to vacate the modification of child support, which the court denied on May 15, 2001. Dianne then filed her first two appeals, designated App. Nos. 79617 and 79754, from these orders relating to the modification of child support.

{¶17} On August 13, 2001, the court entered a final decree of divorce in which it awarded the parties their respective separate properties and divided the marital property; it also awarded $3,000/month spousal support for Dianne until June 2002 and ordered that sum increased to $9,000/month after that date until her death, remarriage or expiration of 110 months; it also awarded child support of $7,900/month for Alana. The court also incorporated a shared parenting plan into its final divorce decree, which named Norman as the residential parent for school enrollment purposes.

{¶18} On September 4, 2001, Dianne filed five additional notices of appeal, four of which (App. Nos. 80184, 80185, 80186, and 80187) challenged what she termed "ex parte" court orders relating to an Ohio tax credit and Joshua's schooling and custody. The other appeal (App. No. 80188) challenged the court's finding regarding the validity of the prenuptial agreement and the final decree of divorce. Thereafter, Norman and the Trusts cross-appealed. We will consider each of these appeals sequentially.

{¶19} Following the final decree of divorce, Norman, the party named by the court in its August 18, 2001 order as the residential parent for school enrollment purposes, attempted to enroll Joshua in the Beachwood High School; however, he alleges Dianne had enrolled him in the Orange School System, where he had been repeatedly absent from school, received failing grades, and associated with those who exerted a negative influence on him.

{¶20} "In response to that situation, on December 3, 2001, Norman filed a motion to allow him to enroll Joshua in a CEDU program and he sought a temporary restraining order to prevent Diane from interfering with such enrollment. The court granted the motion on December 4, 2001. On January 7, 2002, Dianne moved to vacate the T.R.O. alleging improper service, but the court denied that motion on January 30, 2002. She then filed another notice of appeal (App. No. 80963) on March 1, 2002. We have now consolidated all eight appeals for review."

APPEAL NOS. 79617 AND 79754

(The Modification of Child Support)

{¶21} In these separate appeals, Dianne contests the propriety of the court order which modified Norman's child support obligation consistent with its order giving him custody of Joshua, and its subsequent order denying her motion to vacate that child support modification order. She presents two assignments of error:

{¶22} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING APPELLEE'S MOTION TO REDUCE AND/OR MODIFY CHILD SUPPORT."

{¶23} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO VACATE THE EX PARTE ORDER OF APRIL 11, 2001."

{¶24} Dianne argues that the court erred in granting Norman's motion to reduce his child support obligation, urging that Dom.R.Loc.R. 19 and R.C. 3113.215(B)(4) require the court to conduct a hearing before granting such a motion.

{¶25} Norman, relying on Kelm v. Kelm (1994), 93 Ohio App.3d 686, 689, 639 N.E.2d 842, and Mekker v. Mekker (Dec. 23, 1999),...

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