Dunagan v. DunaganDunagan v. Dunagan
JUDGMENT: AFFIRMED AND REMANDED
Vincent A. Stafford
The Stafford Building
2105 Ontario Street
Cleveland, Ohio 44115
ATTORNEY FOR APPELLEE
Steven E. Wolkin
820 W. Superior Avenue
Suite 510
Cleveland, Ohio 44113-1384
MARY J. BOYLE, P.J.:
{¶ 1} Defendant-appellant/cross-appellee, Timothy Dunagan (Timothy), and plaintiff-appellee/cross-appellant, Marydenise Dunagan (Marydenise), both appeal from the trial court‘s judgment relating to its order of spousal support and attorney‘s fees. Whereas Timothy complains that he is required to pay too much, Marydenise complains that it is too little. Timothy also challenges the trial court‘s order relating to his child support obligation and the trial court‘s separate finding that he owes an arrearage. Marydenise separately challenges the trial court‘s denial of her motion to show cause and refusal to hold Timothy in contempt for failing to pay temporary support. Aside from the trial court‘s minor oversight in failing to credit Timothy $1,500, which we order to be corrected on remand, we affirm the trial court‘s decision.
{¶ 2} The parties were married on March 16, 1991 and have four minor children together. In February 2007, Marydenise filed her complaint for divorce, which Timothy answered and asserted his counterclaim. The parties stipulated that the basis for divorce was incompatibility and that their marriage lasted for 16 years, ending on February 17, 2007, when Marydenise filed for divorce. The case was tried to a magistrate, who heard five days of evidence related to issues including, inter alia, child support, spousal support, attorney‘s fees, arrears, and any contempt of the prior temporary support order. The parties reached an agreement as to both their parental rights and responsibilities and the division of marital property; those issues were not before the court at trial. Following the conclusion of trial, the magistrate issued her decision, to which both parties filed objections. The trial court granted some of the objections, correcting clerical errors, decreasing the duration of the spousal support, retaining jurisdiction over the amount and duration of spousal support, and reducing the amount of attorney‘s fees owed. Both parties appeal.
Timothy‘s Appeal
{¶ 3} Timothy raises the following five assignments of error:
{¶ 4} “[I.] The trial court erred and abused its discretion in the amount and duration of spousal support awarded to the appellee.
{¶ 5} “[II.] The trial court erred and abused its discretion in its calculation
{¶ 6} “[III.] The trial court erred and abused its discretion by finding that Timothy owes an arrearage.
{¶ 7} “[IV.] The trial court erred and abused its discretion by awarding attorney fees as additional spousal support to the appellee.
{¶ 8} “[V.] The trial court erred and abused its discretion by adopting the magistrate‘s decision without entering its own judgment on the issues.”
Marydenise‘s Cross Appeal
{¶ 9} “[I.] The trial court erred and abused its discretion in failing to find Timothy R. Dunagan in contempt of court.
{¶ 10} “[II.] The trial court erred and abused its discretion in reducing the duration of spousal support and in reducing the amount of attorney fees.”
{¶ 11} For ease of discussion, we will address some of these assignments of error together where appropriate.
Standard of Review
{¶ 12} The Ohio Supreme Court has long recognized that a trial court must have discretion to do what is equitable upon the facts and circumstances of each divorce case. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. Thus, when reviewing a trial court‘s determination in a domestic relations case, an appellate court generally applies an abuse of discretion standard. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128, 130, 541 N.E.2d 597. An abuse of discretion “implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Under this deferential standard, we may not freely substitute our judgment for that of the trial court. Soulsby v. Soulsby, 4th Dist. No. 07CA1, 2008-Ohio-1019, citing In re Jane Doe I (1991), 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181. If the trial court‘s determination is supported by some competent, credible evidence, this court will not disturb the decision below. Deacon v. Deacon, 8th Dist. No. 91609, 2009-Ohio-2491, ¶14.
{¶ 13} With this deferential standard of review in mind, we proceed to address the assignments of error.
Spousal Support
{¶ 14} In his first assignment of error, Timothy argues that the trial court abused its discretion in ordering him to pay six years of spousal support. Conversely, Marydenise contends in her second cross-assignment of error that the trial court committed reversible error in reducing the duration of spousal support from seven years, as deemed appropriate by the magistrate, to only six years. We find both arguments unpersuasive.
{¶ 15} In determining whether to grant spousal support and in determining the amount and duration of the payments, the trial court must consider the factors listed in
{¶ 16} Timothy contends that the appropriate duration is only two years given that (1) they were married for only 16 years; (2) Marydenise “is able to be self-supporting given her qualifications and credentials as a teacher“; (3) Marydenise was awarded “all of the parties’ liquid assets totaling approximately $93,000“; and (4) he has to pay the bulk of the parties’ marital debt. He contends that the trial court‘s award is arbitrary and contrary to the evidence presented at trial. We disagree.
{¶ 17} The record reflects that the court clearly considered the factors contained in
{¶ 18} After making these findings, the court concluded that Marydenise is entitled to spousal support in the amount of $2,000 per month for a period of six years. Notably, the court specifically retained jurisdiction over the award in the event that modification is necessary. Based on the facts of this case, we find the award to be equitable and reasonable.
{¶ 19} First, as noted by the trial court, Marydenise‘s income is considerably less than Timothy‘s, and Timothy has the much greater earning ability. Second, although Timothy complains that he is saddled with more debt and that Marydenise received all the liquid assets, thereby favoring a reduced spousal support award, the distribution of property and assumption of debts were mutually agreed upon by the parties. Timothy cannot now collaterally attack the property distribution when he specifically negotiated for it. Indeed, there was no stipulation that the division of property was contingent on a reduced spousal support award. Moreover, the parties enjoyed an upper
{¶ 20} Relying on Straube v. Straube (Aug. 10, 2001), 11th Dist. No. 2000-L-074, Timothy argues that six years is contrary to Ohio law when the parties have been married for only 16 years. We find his reliance on Straube misplaced. The significant factor in Straube that led the court to conclude that six years was too long for spousal support was the trial court‘s failure to reserve jurisdiction over the award. In this case, the trial court specifically retained jurisdiction over both the amount and duration of the award. Therefore, if either party‘s circumstances change, Timothy can move the court for a modification.
{¶ 21} We likewise find no merit to Marydenise‘s claim that the trial court abused its discretion in reducing the duration of spousal support. She argues that the trial court relied on the same findings that the magistrate made but simply reached a different conclusion. Contrary to Marydenise‘s assertion, the trial court is free to do so. Given the broad discretion afforded the trial court and the evidence contained in the record, we cannot say that the trial court
{¶ 22} Timothy‘s first assignment of error is overruled, and Marydenise‘s second cross-assignment of error as to spousal support is overruled.
Child Support
{¶ 23} In his second assignment of error, Timothy argues that the trial court abused its discretion in refusing to deviate downward from the amount of child support computed under the basic child support schedule “based upon the fact that [he] has the minor children half the time according to the parties’ shared parenting plan and that he incurs significant expenses to travel from Arkansas to Ohio in order to exercise his visitation.” We disagree.
{¶ 24} Initially, we note that
{¶ 25} Here, the trial court adopted the magistrate‘s recommendation relating to child support and ordered Timothy to pay the presumed statutory amount calculated in accordance with
{¶ 26} And while Timothy argued below that he should pay less based on the expense he incurs in traveling to facilitate visitation, and based on the almost equal amount of parenting time that he will have, the trial court found neither reason persuasive. Indeed, Marydenise presented evidence at trial that Timothy had cancelled many of his scheduled visits during the pendency of the litigation, failing to exercise all of the visitation time that he was entitled. The trial court may have been unconvinced that Timothy would actually exercise all
{¶ 27} Based on the record before us, we find no abuse of discretion in the trial court‘s refusal to deviate downward in the amount of child support calculated under the basic child support schedule and applicable worksheet for a combined gross income of $150,000. Accordingly, the second assignment of error is overruled.
Arrears
{¶ 28} In his third assignment of error, Timothy argues that the trial court erred and abused its discretion in finding that he owes an arrearage in the amount of $15,824.17. He contends that (1) the record does not support such a finding, (2) the trial court failed to credit him with payments that he made from February through July 2007, and (3) the court failed to make any specific findings as to why he should pay temporary spousal support from January through August 2008. We find his arguments lack merit.
{¶ 29} The arrearage that the trial court ordered Timothy to pay primarily arose out of the parties’ own Agreed Journal Entry for Payment of Temporary Support reached on August 22, 2007. Under the parties’ agreement, Timothy agreed to pay spousal support in the amount of $1,200, commencing on July 9, 2007 and continuing until “further order of court.” Under the agreement, Timothy also agreed, inter alia, to pay for all the children‘s medical expenses
{¶ 30} The Agreed Journal Entry also specifically reserved jurisdiction for the trial court to determine if temporary support should be ordered for the period from February 16, 2007 through July 9, 2007. The trial court found that Marydenise was entitled to spousal support for this period and ordered Timothy to pay the same amount of spousal support for these five months that he had recognized as a reasonable amount for spousal support commencing on July 9, 2007, thereby finding an additional arrearage of $6,000. Likewise, although Timothy presented evidence that he had made one deposit of $4,400 in the parties’ joint bank account during the first five months of the litigation, the trial court obviously found that such deposit alone did not diminish Marydenise‘s
{¶ 31} We do note, however, that the record reflects that a stipulation was entered between the parties during trial that Timothy would be credited $1,500 to be applied against any future or past support owed. The trial court failed to incorporate this stipulation into its order. We therefore order that such credit be applied on remand, resulting in a total arrearage of $14,324.17.
{¶ 32} The third assignment of error is overruled, but we remand for the trial court to incorporate the stipulations of parties and apply the $1,500 reduction.
Attorney‘s fees
{¶ 33} Timothy argues in his fourth assignment of error that the trial court abused its discretion in awarding Marydenise attorney‘s fees. Marydenise likewise argues that the trial court abused its discretion in reducing the amount of attorney‘s fees that the magistrate found to be reasonable.
{¶ 34}
“(A) In an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that action, a court may award all or part of reasonable attorney‘s fees and litigation expenses to either party if the
court finds the award equitable. In determining whether an award is equitable, the court may consider the parties’ marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate.”
{¶ 35} The statute also recognizes that an award of attorney‘s fees and litigation expenses under the statute may be designated as spousal support. See
{¶ 36} Marydenise presented competent, credible evidence that she incurred $45,429.31 in attorney‘s fees. At the conclusion of trial, she still owed her attorney $15,863.70 as part of the fees incurred. The magistrate found that Timothy‘s conduct in failing to comply with the temporary support order, coupled with the disparity in income and earning ability, warranted an order requiring Timothy to pay $25,000 toward Marydenise‘s attorney‘s fees “as and for additional spousal support.” The trial court subsequently reduced the amount by $5,000, ordering Timothy to pay $20,000 toward Marydenise‘s attorney‘s fees.
{¶ 37} Relying on this court‘s decision in Farley v. Farley (1994), 97 Ohio App.3d 351, 646 N.E.2d 875, Timothy argues that the court abused its discretion in awarding attorney‘s fees when the record fails to establish that Marydenise needed the assistance. He contends that the fact that she has already paid for the majority of her attorney‘s fees negates any claim that she needs the assistance. We find his argument misplaced.
{¶ 39} And to the extent that Timothy again implies that Marydenise received a more favorable property division, which should alleviate any obligation on his part to pay attorney‘s fees, we note that Timothy agreed to the property division.
{¶ 40} Here, we find that the court carefully considered the parties’ positions, including Timothy‘s ability to pay the award and Marydenise‘s needs, and properly ordered the $20,000 award. We therefore find no merit to Marydenise‘s cross-assignment of error that the trial court abused its discretion in reducing the amount by $5,000. The trial court found that a reduction of $5,000 was more equitable; we cannot substitute our judgment on appeal, absent a showing of an abuse of discretion. Marydenise has failed to demonstrate any abuse of discretion.
Independent Review
{¶ 42} In his final assignment of error, Timothy argues that the trial court‘s order should be reversed because it failed to “undertake a thorough independent review of the magistrate‘s decision” as required under
{¶ 43} Timothy‘s final assignment of error is overruled.
Contempt of Court
{¶ 44} In her first cross-assignment of error, Marydenise argues that the trial court abused its discretion in failing to find Timothy in contempt of court despite its recognition that he failed to comply with the temporary support order. She contends that the court‘s refusal to make a contempt finding is an abuse of discretion because it essentially condones a party‘s failure to comply with a court order. She cites no authority in support of her position. See
{¶ 45} Marydenise‘s first cross-assignment of error is overruled.
{¶ 46} In summary, we remand the case for the trial court to credit $1,500 toward Timothy‘s order of arrearages as stipulated by the parties. We otherwise affirm the trial court‘s decision.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and COLLEEN CONWAY COONEY, J., CONCUR