Salpietro v. Salpietro

• Decision Date: 20 January 2023
• Docket Number: WD-22-028
• Citation: 2023 Ohio 169
• Parties: Gina Salpietro Appellant v. Benjamin J. Salpietro, Jr. Appellee
• Court: Ohio Court of Appeals

2023-Ohio-169

Gina Salpietro Appellant v. Benjamin J. Salpietro, Jr. Appellee

No. WD-22-028

Court of Appeals of Ohio, Sixth District, Wood

January 20, 2023

Trial Court No. 2021-DR-0037.

Drew Hanna, for appellant.

Julie S. Hoffman, for appellee.

DECISION AND JUDGMENT

MAYLE J.

{¶ 1} Appellant, Gina Salpietro, appeals the April 5 2022 judgment of the Wood County Court of Common Pleas Domestic Relations Division, granting her and appellee Benjamin Salpietro Jr., a divorce. With one small modification, we affirm the trial court's decision.

I. Background and Facts^[1]

{¶ 2} Gina and Benjamin married in 1990 and separated in 2020. Benjamin is an orthopedic surgeon, and Gina was a homemaker for much of the parties' marriage. They have three emancipated children together.

{¶ 3} Although they began a contested divorce trial, by the start of the second day, they had "reached an agreement * * * on everything except spousal support and legal fees." At the request of Gina's attorney, Benjamin's attorney read the terms of the parties' settlement into the record. They agreed on the distribution of personal property, how to handle marital funds in a joint bank account, issues involving automobile loans, terms for selling the marital home, issues with filing their tax returns, who was responsible for paying specific bills, Benjamin procuring a life insurance policy with Gina as the beneficiary, and distribution of Benjamin's interests in two businesses. Two terms of the agreement are particularly relevant here. First, the parties agreed that Benjamin would give Gina a lump sum cash payment to compensate her for half of Benjamin's interest in a medical office building that generates rental income and in a surgical consulting business. Because Benjamin was paying Gina for her interest in the rental property and the consulting business, the parties agreed that the trial court's spousal support award should be based solely on the income he earns from his surgical practice.

{¶ 4} After Benjamin's attorney recited the agreement, Gina's attorney "conferred with [his] client * * *" and said that "what [Benjamin's attorney] has recited is an accurate statement of the settlement." Later, when Benjamin's attorney clarified that they had also agreed that the court's spousal support award should be based only on Benjamin's income from his surgical practice because Benjamin was giving Gina a cash payment for her half of his interests in the rental property and the consulting business, Gina's attorney simply responded, "So agreed."

{¶ 5} Following the divorce hearing, the trial court issued its decision on spousal support and attorney fees. The court made findings regarding all of the factors in R.C. 3105.18(C)(1), which controls an award of spousal support. The court ultimately decided to award Gina spousal support of $13,000 per month for four years, followed by $10,000 per month for ten years, and then $6,000 per month indefinitely. Specifically, the court's decision said:

IT IS ORDERED that on May 1, 2022 and on the first day of each month for the following 48 months defendant Benjamin Salpietro shall pay to plaintiff Gina Salpietro $13,000 as spousal support; that on May 1, 2026 and on the first day of each month for the following 120 months defendant Benjamin Salpietro shall pay to plaintiff Gina Salpietro $10,000 as spousal support; and that on May 1, 2032 and on the first day every ensuing month thereafter defendant Benjamin Salpietro shall pay to plaintiff Gina Salpietro $6,000 as spousal support.

The court also awarded Gina $25,000 for attorney fees, which was in addition to $10,000 in fees that Benjamin was ordered to pay earlier in the litigation. Gina's total award for attorney fees was $35,000.

{¶ 6} Additionally, the trial court ordered Benjamin's attorney to prepare a proposed judgment entry incorporating the terms of the parties' settlement and the trial court's decision on spousal support and attorney fees. Benjamin's attorney certified that she sent the proposed entry to Gina's attorney on March 22, 2022, and that he had not responded, objected, or countered with his own proposed entry. On April 5, 2022, the trial court signed and filed the entry that Benjamin's attorney prepared.

{¶ 7} Gina now appeals, raising ten assignments of error:

1.The Court Errs and Abuses its discretion by approving the proposed Divorce Decree without giving the Appellant/Plaintiff an opportunity to Object to the proposed Decree, containing major errors.

2.It is Error by the Court to limit Appellee/Defendant's income for Spousal Support to just his income as a Surgeon.

3.The Court Errs in ruling there was no Financial Misconduct by the Appellee/Defendant.

4.The Court Errs by not considering the contributions Appellant/Plaintiff made to the Appellee/Defendant in completing Appellee/Defendant's Surgical Residency.

5.The Court Errs by failing to order Appellee/Defendant to pay Appellant/Plaintiffs health, dental, and optical insurance.

6.The Court Errs by reducing Appellant/Plaintiffs Spousal Support over time.

7.The Court Errs by limiting Spousal Support to $13,000 per month.

8.The Court Errs by making a clerical error in the Spousal Support Payment Schedule.

9.The Court Errs by not requiring Appellee/Defendant's Spousal Support Payments to be made by Bank Withholding.

10.The Court Errs in granting inadequate Attorney Fees to the Appellant/Plaintiff.

II. Law and Analysis

{¶ 8} In her assignments of error, Gina argues that the trial court (1) erred by adopting the final decree of divorce prepared by Benjamin's attorney, (2) committed numerous errors in reaching its spousal support award, (3) made a clerical error in the spousal support schedule, (4) should have found that Benjamin committed financial misconduct, (5) should have ordered Benjamin to pay spousal support through bank withholding, and (6) did not award Gina enough attorney fees. We address each argument in turn.

A. We must disregard items that are not in the trial court record.

{¶ 9} As a preliminary matter, we note that Gina makes multiple arguments based on information that is not in the appellate record. Appellate review of a trial court's order is limited to the record made in the trial court. Fifth Third Bank v. Fin. S Office Partners, Ltd., 2d Dist. Montgomery No. 23762, 2010-Ohio-5638, *3, citing Durrstein v. Durrstein, 2d Dist. Montgomery No. 18688, 2001 WL 1203014 (Oct. 12, 2001). The record that we can consider is "the record as it existed at the time the trial court rendered judgment." Leiby v. Univ. of Akron, 10th Dist. Franklin No. 05AP-1281, 2006-Ohio-2831, ¶ 7, citing Chickey v. Watts, 10th Dist. Franklin Nos. 04AP-818 and 04AP-1269, 2005-Ohio-4974, ¶ 14; Baker v. Senior Emergency Home Repair EOPA, 6th Dist. Lucas No. L-14-1203, 2015-Ohio-3083, ¶ 11, quoting State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus ("Ohio law is clear that we must limit our review on appeal to the record before the court at the time of judgment: 'A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings and then decide the appeal on the basis of the new matter.'"). We cannot consider any exhibits attached to the parties' briefs that were not made part of the trial court's record. Star Mgt., LLC v. Fayne, 6th Dist. Lucas No. L-12-1342, 2014-Ohio-2319, ¶ 7.

{¶ 10} Basically, absent some legal authorization, we cannot consider facts that were not presented to the trial court; documents that were not filed with, admitted into evidence by, or proffered to the trial court; or any acts that occurred or issues that arose after a party filed their notice of appeal. Baker at ¶ 11; see also In re Beck, 7th Dist. Belmont No. 00 BA 52, 2002-Ohio-3460, ¶ 21. An exhibit attached to a party's appellate brief-but not filed with the trial court-is not part of the record. In re K.Y., 8th Dist. Cuyahoga No. 109111, 2020-Ohio-4140, ¶ 9, citing Lisboa v. Lisboa, 8th Dist. Cuyahoga No. 95673, 2011-Ohio-351, ¶ 10.

{¶ 11} With that in mind, in reviewing Gina's assignments of error, we will disregard (1) any factual information that the parties included in their briefs that is not supported by something in the trial court's record as it existed on May 3, 2022, when Gina filed her notice of appeal; (2) the exhibits that Gina attached to her brief that were not admitted at the divorce trial or otherwise filed with the trial court; (3) Gina's attorney's emails; (4) several unfiled motions that Gina included in her brief; (5) Gina's proposed final decree (which the trial court did not adopt and is not in the trial court record); and (6) the email and proposed final entry from Gina's attorney that Benjamin attached to his brief.

B. Gina cannot appeal the portions of the divorce decree that she consented to.

{¶ 12} Gina's second and third assignments of error each relate to portions of the final decree that Gina agreed to in her settlement with Benjamin. In her second assignment of error, Gina contends that the trial court abused its discretion in considering and applying the spousal-support factors in R.C. 3105.18(C)(1). She argues that the trial court erred by limiting Benjamin's income for spousal support purposes to the wages he made from his surgical practice, rather than including his income from other sources, including the rental property and consulting business. In her third assignment of error, Gina argues that the trial court erroneously determined that Benjamin did not commit financial misconduct because, she claims, he "dissipated" over $358,000 of marital assets within the meaning of R.C. 3105.171(E)(4) in the 16 months leading up to the final divorce hearing. Because Gina consented to the...