COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72789 MARY KATHLEEN ORLEY : ACCELERATED DOCKET : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL L. ORLEY, et al. : : Defendants-Appellants : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION JANUARY 22, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. D-235204 JUDGMENT: REVERSED AND REMANDED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JOYCE E. BARRETT (#0006801) 800 Standard Building Cleveland, Ohio 44113 For Defendant-Appellant: STEVEN E. WOLKIN (#0009048) 1040 Leader Building 526 Superior Avenue, NE Cleveland, Ohio 44114 PER CURIAM: Defendants-appellants Michael L. Orley, et al. ( appellant ) appeal from the trial court's judgment awarding permanent spousal support and the valuation of a partnership interest following a -2- remand from this court. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN AWARDING SPOUSAL SUPPORT TO APPELLEE. II. THE TRIAL COURT ERRED IN PLACING A VALUE OF FOUR HUNDRED THIRTY THOUSAND DOLLARS ($430,000) ON THE PARTNERSHIP INTEREST OF APPELLANT IN GRAYSTONE GROUP. Finding the appeal to have merit, the judgment of the trial court is reversed. I. Appellant and Mary Kathleen Orley divorced on September 20, 1995. Appellant appealed that decision to this court on the issues of spousal support and the valuation of his partnership interest in the Graystone Group. In Orley v. Orley (Dec. 12, 1996), Cuyahoga App. No. 69622, unreported, this court reversed the trial court on both assignments of error. This court determined that the trial court abused its discretion when it awarded Mary Kathleen Orley monthly spousal support of $7,500 in the absence of evidence demonstrating her need for that amount of support. The court further held that the trial court's acceptance of the amount of $430,000 provided by Mary Kathleen Orley's expert as the value of appellant's partnership interest in the Graystone Group was not based on credible evidence. The case was remanded to the trial court. Upon remand, both parties submitted briefs to the trial court. Apparently, no hearing was held on the matter. Mary Kathleen Orley argued that the issue regarding the valuation of the partnership -3- interest was moot as appellant had sold his interest in the Graystone Group. Mary Kathleen Orley relied on Blodgett v. Blodgett(1990), 49 Ohio St.3d 243, to support her contention that a party cannot accept benefits under a decree of divorce and then appeal those benefits. She also argued that needs-based criteria were no longer used when considering whether spousal support should be awarded or in determining the amount of the award. Rather, the standard to be used is reasonable and appropriate. Appellant argued that the trial court should accept the value assessed to the partnership interest by his expert at the trial and recalculate the property division accordingly. He also argued the trial court should determine the need of Mary Kathleen Orley for spousal support as that was the standard used by this court in its opinion. The trial court found that appellant's sale of his partnership interest in the Graystone Group during the pendency of the appeal mooted the issue of the value of the property as appellant accepted the benefits of the divorce decree. The trial court then issued various findings on the issue of spousal support pursuant to R.C. 3105.18. Those findings included that Mary Kathleen Orley would need $10,000 per month to maintain the standard of living she enjoyed while married to appellant; she could earn $40,000 per year if her property settlement was conservatively invested; and that Mary Kathleen Orley will need, in addition to her earned and unearned income, an additional $7,500 per month in spousal support to meet her needs and pay her taxes. Appellant has appealed from -4- this ruling. II. In his first assignment of error, appellant asserts the trial court erred by awarding spousal support. Appellant submits that some of the trial court's findings in its journal entry after remand were in conflict with the opinion of this court in the absence of the submission of further evidence. Appellant contends the trial court failed to comply with the mandate of this court set forth in the opinion for the first appeal. A trial court must follow the mandate of an appellate court when a case is remanded. Graham v. Graham (1994), 98 Ohio App.3d 396, 400. An inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case. Nolan v. Nolan (1984), 11 Ohio St.3d 1. The mandate of the appellate court is the law of the case on the legal questions involved for all subsequent proceedings in the case at both trial and reviewing levels. Id. at 3. Even if the holding of the superior court is erroneous, it is now the law of the case. Adkins v. Adkins (1988), 43 Ohio App.3d 95. In Kaechele v. Kaechele (1991), 72 Ohio App.3d 267, the court held that the trial court erred in awarding the same amount of spousal support on remand as that amount had been held to be an abuse of discretion upon appeal. The law of the case was dispositive of the issue and the trial court was obliged to follow the decisions in the previous appeals. The court pointed out that no new evidence had been adduced upon remand but the facts and -5- issues remained the same. In the opinion issued upon the first appeal in this case, the court used a standard based on need. This court set forth the applicable law as follows: R.C. 3105.18 is not to be interpreted to require an alimony award to provide the partner with an equal standard of living or a standard of living equivalent to that established during the marriage. Kunkle, at 63. In essence, when a sustenance award is not limited to the payee's needs, the award has the effect of punishing the payer and rewarding the payee. Kunkle, at 64. Spousal support is to be based on need. A spouse is not entitled, as a matter of law, to continue the luxurious life style lived during the marriage. Simoni v. Simoni (1995), 102 Ohio App.3d 628. Orley, supra, at 11-12. When applying this standard to the evidence before it, this court reasoned: Our review of the record indicates that the trial court did not provide sufficient detail for the court to determine whether a permanent spousal support award in the amount of $7,500 per month was based on Mrs. Orley's need. Simoni, supra. The trial court, in its findings of fact, rated (sic) the length of the marriage, the age of the parties, the earning capacities of Mr. Orley, in addition to the standard of living. Her testimony established that her monthly expenses were considerably lower as a result of the divorce, i.e., she moved into a condominium, both of her children were emancipated and she was employed full-time. Thus, the trial court abused its discretion when it awarded Mrs. Orley permanent spousal support in the absence of evidence demonstrating Mrs. Orley's need. Simoni, supra. Id. at 14. No apparent difference can be discerned between the trial court's ruling following remand and that which was held to be an -6- abuse of discretion in the first appeal. Simply stating Mary Kathleen Orley needs $7,500 in monthly spousal support hardly is evidence demonstrating need as required by the opinion of this court. The trial court failed to follow the mandate of this court and erred by awarding the same amount of spousal support as was held to be an abuse of discretion without considering any additional evidence. Need is a concept which may vary depending upon the situation presented to the trial court. An award of spousal support should not exceed a reasonable amount. Adams v. Adams (1994), 95 Ohio App.3d 419, 421. This court recognizes that under R.C. 3105.18 the standard to be applied is that of appropriate and reasonable. The need for an award of spousal support therefore should be based upon a determination of what is appropriate and reasonable after consideration of the facts before the trial court. The issue of spousal support is remanded again to the trial court. A hearing is to be held upon the matter so that evidence may be presented by the parties to allow the trial court to determine if an award of spousal support is warranted and, if so, to award an appropriate and reasonable amount. Appellant's first assignment of error is sustained. III. In his second assignment of error, appellant contends the trial court erred in placing a value of $430,000 on his partnership interest in the Graystone Group. Appellant points out that this court's opinion in the first appeal found that valuation to be -7- based on evidence which was not credible. Appellant argues that there was no evidence submitted proving the asset was sold. Further, appellant maintains Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, is inapplicable as that case involved a satisfaction of judgment while this case is regarding a dispute over property valuation. Blodgett involved a divorce in which the wife was awarded marital assets worth $3,100,000. Because of tax consequences, the trial court ordered that the wife be paid $2,765,000 if she executed a satisfaction of judgment. Both parties appealed the trial court's judgment entry. During the pendency of the appeal, the wife signed and executed the satisfaction of judgment. The court held that the appeal was moot. When the wife executed the satisfaction of judgment, she waived her right to continue her appeal. Blodgett is distinguishable from the instant case. The wife in Blodgett appealed the issue of whether certain incentive and non-competition payments should have been marital property. By executing the satisfaction of judgment, she essentially was agreeing to accept the property award in the original divorce decree in its entirety. This ended the controversy at issue on appeal and rendered that appeal moot. In the instant case, appellant never executed a satisfaction of judgment. The dispute centers on the valuation of one asset, appellant's partnership interest in the Graystone Group. If appellant did sell that asset while the appeal was pending, he did -8- not accept the benefit of the divorce judgment in its entirety. Appellant may have accepted that asset as being a part of his property award, but that was not the dispute at issue. Appellant and Mary Kathleen Orley are disputing the value of that asset. Whether the property still is owned by appellant is immaterial. The value of the asset can be determined by the parties presenting evidence, including the amount of any sale, to the trial court. The trial court erred by determining the issue was moot. Appellant's second assignment of error has merit. Judgment reversed and remanded. This cause is reversed and remanded for further proceedings consistent with this Journal and Opinion. -9- It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOSEPH J. NAHRA,PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE LEO M. SPELLACY, JUDGE N.B. This is an announcement of the court's decision. See App.R.22(B), 22(D), and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .