CALVIN WILSON v. GERALDINE WILSON
No. 112105
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 25, 2023
[Cite as Wilson v. Wilson, 2023-Ohio-1752.]
MARY J. BOYLE, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED
Appearances:
L. Bryan Carr, for appellant.
MARY J. BOYLE, J.:
{11} Defendant-appellant, Geraldine Wilson (“Geraldine“), appeals the trial court‘s judgment denying her motion for attorney fees and sanctions pursuant to
I. Facts and Procedural History
{13} Three months later, Calvin retained an attorney who filed a notice of appearance and a motion to show cause requesting that Geraldine be found in contempt for 1) staying in the marital residence and failing to pay rent as contemplated in the parties’ divorce decree; 2) incurring water expenses during that time; 3) causing Calvin to expend funds to reclaim his possessions from the marital home; 4) failing to pay the gas bill; and 5) failing to pay debt to Cleveland Water using a jointly filed tax return refund.
{14} Geraldine filed a motion to compel discovery with a request for attorney fees аnd sanctions for Calvin‘s failure to provide responses to interrogatories and requests for production of documents. Calvin opposed the motion, claiming Geraldine did not attempt to resolve discovery disputes in good faith prior to seeking court intervention. Geraldine filed a reply arguing any such assertion was a “blatant misrepresentation.”
{15} In March 2022, Calvin filed a notice of amendments to his motion to show cause. Therein, Calvin indicated that the discovery process revealed that Geraldine‘s attorney received a tax refund, paid Cleveland Water, and sent the parties a сheck for the remainder. Accordingly, Calvin struck the fifth contested
{16} On April 11, 2022, a hearing before the magistrate (“April Hearing“) was held on Calvin‘s motion to modify support and motion to show cause and Geraldine‘s motion to compel discovery and motion to preclude witnesses. Testimony was heard from Calvin and Geraldine and exhibits from both parties were admitted into evidence. Written closing arguments were filed on May 2, 2022.
{17} In a single-spaced, 13-page decision issued on May 11, 2022 (“May Mag. Dec.“), the magistrate thoroughly analyzed the relevant law, the arguments raised by each party, and the evidence and testimony presented at the April Hearing. In her analysis of Calvin‘s motion to modify spousal support, the magistrate questioned Calvin‘s credibility and the accuracy of the evidence he presented. Ultimately, the magistrate concluded that there was a substantial change in Calvin‘s circumstances, but Calvin‘s financial situation remained the same and may have even improved. Therefore, the magistrate found that Calvin‘s spousal support obligation was not subject to modification.
{18} Turning to Calvin‘s motion to compel, the magistrate concluded that Geraldine failed to comply with the terms of the divorce decree as it related to the rent payments but declined to find Geraldine in contempt. The magistrate found the remainder of Calvin‘s contentions moot. To remedy his motion to show cause,
{19} Lastly, the magistrate recited
[Geraldine] has requested that [Calvin] pay her attorney fees incurred in connection with this proceeding.
* * *
After considering the factors in
R.C. 3105.73(B) , the Court finds it not equitable to award reasonable attorney fees based upon lack of evidence presented regarding attorney fees incurred.
(May Mag. Dec., 05/11/22.)
{110} Ultimately, the magistrate denied Calvin‘s motion to modify support; granted in part and denied in part Calvin‘s motion to show cause; dismissed as moot Geraldine‘s motion to compel discovery with request for attorney fees and sanctions; and noted that Geraldine‘s motion to preclude witnesses was orally denied during the April Hearing. No objections were filed by either party following the issuance of the May Mag. Dec. and a judgment entry adopting the magistrate‘s decision was journalized on June 1, 2022 (“June JE“). The June JE stated: “The court adopts the [May Mag. Dec.] in its entirety. No objections were filed thereto and therefore the parties are found to have waived their right to any further hearing.” (June JE, 06/1/22.) No appeals were filed.
{111} On June 30, 2022, Geraldine filed the Fees and Sanctions Motion, the motion from which this appeal stems, against Calvin and Calvin‘s attorney. Therein,
{12} On July 13, 2022, Calvin‘s attorney filed a brief in opposition to the Fees and Sanctions Motion as well as a motion to withdraw as counsel. Calvin‘s counsel advised that she had not heard from Calvin or been retained to represent him in further postdecree matters. Nonetheless, Calvin‘s attorney argued that the Fees and Sanctions Motion was not properly served and was barred by res judicata. Calvin‘s counsel further argued that several of the claims alleged in Calvin‘s motion to show cause were dismissed because they no longer appeared to have merit after discovery was comрleted. Lastly, Calvin‘s counsel maintained that the remaining claims were warranted under the law and had merit; this was evidenced by the trial court‘s rulings on his postdecree motions. Therefore, Calvin‘s counsel concluded these motions were not frivolous or sanctionable.
{114} Ultimately, Calvin‘s counsel‘s motion to withdraw was granted by the trial court on August 11, 2022. A hearing before the magistrate on the Fees and Sanctions Motion was originally scheduled for August 8, 2022. The hearing was cancelled and rescheduled for an in-person hearing on August 15, 2022. On August 15, an in-person pretrial was held.1 On August 16, 2022, a docket entry states, “Delivery of documents/submission of briefs sеt for 8/29/2022 at 04:00 before magistrate” in regard to Geraldine‘s Fees and Sanctions Motion.
{115} On September 21, 2022, a judgment entry (“September JE“) was issued by the trial court judge denying the Fees and Sanctions Motion. The September JE first considered Geraldine‘s request for attorney fees pursuant to
In the case at bar, [Gerаldine]‘s [Fees and Sanctions Motion] with Request to Bifurcate Issues was filed on June 30, 2022, after the matter was heard on April 11, 2022. [Geraldine]‘s Motion to Compel Discovery with Request for Attorney Fees and Sanctions, filed on September 27, 2021, prior to trial, was dismissed as moot by this Court and was not appealed by [Geraldine]. There is no evidence in the record as to an itemized statement being presented as evidence. In fact, this Court specifically stated in the [May Mag. Dec.]: “After considering the factors in
R.C. 3105.73(B) , the Court finds it not equitable to award reasonable attorney fees based upon lack of evidence presented regarding the attorney fees incurred.” In addition to not being timely, [Geraldine]‘s [Fees and Sanctions Motion] fails to provide any further evidence in support of the requested fees. Therefore, [Geraldine]‘s request for Attorney Fees is not well-taken.
(September JE, 09/21/22.)
{16} Next, the September JE considered Geraldine‘s request for attorney fees and sanctions pursuant to
In the case at bar, this Court sat as the trier of fact on the multiple pending motions [at the April Hearing], issued a decision on the pending motions with extensive findings of fact and conclusions of law, and conducted pretrial proceedings on the matter dating back to June 2, 2021, when the post-decree motion to modify spousal support was filed. This Court did not find frivolous conduct to be apparent.
While this Court did call into question [Calvin]‘s credibility, this Court specifically declined to award attorney fees in the [May Mag. Dec.]. Again, after a thorough review, this Court declines to award any further sanctions. [Calvin‘s] credibility is questionablе, but [Geraldine] was also found to be in violation of the parties’ Agreed Judgment Entry Decree of Divorce as it related to her payment of rent, part of the allegations listed in the Motion to Show Cause. As for counsel for [Calvin], counsel specifically filed to amend the Motion to Show Cause based on information received through the discovery process.
(September JE, 9/21/22.)
{17} It is from this order Geraldine appeals, raising the following two assignments of error for review:
Assignment of Error I: The trial court erred in relying on Local Rule 12 [sic] to deny [Geraldine]‘s
Assignment of Error II: The trial court erred in denying [Geraldine]‘s
II. Law and Analysis
A. Initial Matters: The Record Before Us and Geraldine‘s Failure to Object or Appeal to Prior Rulings
{118} We begin by noting that the record received by this court does not contain any exhibits or transcripts from the April Hearing. The burden is on the appellant to provide a transcript to support its arguments. App.R. 9(B)(1). Without a transcript or alternative record, this court must presume that the trial court considered all of the evidence presented and arguments raised. In re G.J.A., 8th Dist. Cuyahoga Nos. 107220 and 107575, 2019-Ohio-1768, ¶ 12, quoting Miranda v.
{19} We further note that according to
{20} It appears that Geraldine now attempts to use the trial court‘s September JE denying her Fees and Sanctiоns Motion to challenge the court‘s findings in the May Mag. Dec. and June JE in this appeal. Geraldine, however, cannot bootstrap any claims from the trial court‘s prior postdecree motion rulings in this appeal:
“Bootstrapping” is “the utilization of a subsequent order to indirectly and untimely appeal a prior order that was never directly appealed.” State v. Williamson, 8th Dist. Cuyahoga No. 102320, 2015-Ohio-5135, ¶ 9. Such attempt is “procedurally anomalous and inconsistent with the appellate rules that contemplate a direct relationship between the order from which the appeal is taken and the error assigned as a result of that order” and is disfavored. Williamson, citing State v. Church, 8th Dist. Cuyahoga No. 68590, 1995 Ohio App. LEXIS 4838 (Nov. 2, 1995); Bd. of Health v. Petro, 8th Dist. Cuyahoga No. 104882, 2017-Ohio-1164, ¶ 12 (noting this court‘s consistent declination to consider bootstrapped claims).
State v. Bhambra, 8th Dist. Cuyahoga No. 105283, 2017-Ohio-8485, ¶ 12.
{21} Accordingly, we presume regularity, decline to review any arguments regarding the May Mag. Dec. and June JE, and proceed to our analysis of Geraldine‘s assignments of error with these concepts in mind.
B. R.C. 3105.73 Motion for Attorney Fees
{22} In her first assignment of error, Geraldine argues that the trial court‘s denial of her
{23} The decision to award attorney fees under
{24} Likewise, courts are given latitude when following their own local rules and the enforcement of those rules is generally within the promulgating court‘s discretion. Colosimo v. Kane, 8th Dist. Cuyahoga No. 101053, 2015-Ohio-3337, ¶ 42, citing In re D.H., 8th Dist. Cuyahoga No. 89219, 2007-Ohio-4069, ¶ 25, and Jackson v. Jackson, 11th Dist. Lake Nos. 2011-L-016 and 2011-L-017, 2012-Ohio-662, ¶ 30. “Local rules are created with the purpose of promoting the fair administration of justice and eliminating undue delay” and “also assist practicing attorneys by providing guidelines for orderly case administration.” Cavalry Invests. v. Dzilinski, 8th Dist. Cuyahoga No. 88769, 2007-Ohio-3767, ¶ 16. “Courts are vested with inherent power to establish procedural rules if they are reasonable and do not conflict with the organic law, or any valid statute.” Cassidy v. Glossip, 12 Ohio St.2d 17, 231 N.E.2d 64 (1967); see also
In any post-decree motion or proceeding that arises out of an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that motion or proceeding, the court may award all or part of reasоnable 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’ income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties’ assets.
{26} While
(A) How Made.
(1) A request for attorney fees and expenses to prosecute an action shall be included in the body оf the motion or other pleading that gives rise to the request for fees.
(2) A request for attorney fees and expenses to defend an action shall be by motion filed at least 14 days prior to the hearing on the motion being defended.
(3) No oral motion for fees shall be entertained unless good cause is shown why the provisions of this rule could not be complied with and jurisdiction is reserved in any order resulting from the hearing.
(B) Evidence in Support of Motion. At the time of the final hearing on the motion or pleading that gives rise to the request for attorney fees, the attorney seeking such fees shall present:
(1) An itemized statement describing the services rendered, the time for such services, and the requested hourly rate for in-court time and out-of-court time;
(2) Testimony as to whether the case was complicated by any or all of the following:
(a) new or unique issues of law;
(b) difficulty in ascertaining or valuing the parties’ assets;
(c) problems with completing discovery;
(d) any other factor necessitating extra time being spent on the case;
(3) Testimony regarding the attorney‘s years in practice and experience in domestic relations cases; and
(4) Evidence of the parties’ respective income and expenses, if not otherwise disclosed during the hearing.
(C) Expert testimony is not requirеd to prove reasonableness of attorney fees.
(D) Failure to comply with the provisions of this rule shall result in the denial of a request for attorney fees, unless jurisdiction to determine the issue of fees is expressly reserved in any order resulting from the hearing.
Loc.R. 21.
{27} Because
{29} While a direct conflict existed in Tredanary, the same cannot be said here. As noted above,
{30} Here, the trial court found that Geraldine‘s Fees and Sanctions Motion seeking attorney fees under
{131} These findings are supported by the record before us. It is clear that the magistrate previously decided an award of attorney fees under
{132} The record also reveals that Geraldine failed to comply with Loc.R. 21. The Fees and Sanctions Motion seeking an award of attorney fees under
C. R.C. 2323.51 Motion for Attorney Fees and Sanctions
{134} We begin by noting that under
[A]t any time not more than thirty days after the entry of final judgment in a civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an award of court costs, reasonable attorney‘s fees, and other reasonable expenses incurred in connection with the civil action or appeal.
{136}
- It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
- It 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.
(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.
{137}
{138} An
{139} Lastly, it is well settled in this court that a hearing on a
{140} Here, the trial court emphasized its role as the finder of fact аt the April Hearing and its issuance of the May Mag. Dec. with extensive findings of fact and conclusions of law thereafter. The trial court also noted its involvement in
{141} Based on the record before us, we find that the trial court had sufficient knowledge of the circumstances to deny Geraldine‘s motion
{142} The record reveals that the trial court subsequently issued the May Mag. Dec., a single-spaced, 13-page, thorough and comprehensive decision. The May Mag. Dec. questioned Calvin‘s credibility as well as the accuracy of the evidence he presented. Of the many findings included therein, “frivolous conduct” was not mentioned, suggested, or referenced. The May Mag. Dec. was adopted in its entirety by the June JE without objection or appeal. After Geraldine filed her Fees and Sanctions Motion, the trial court thoroughly reviewed its prior findings. The trial
{143} Moreover, it cannot be said that Calvin‘s postdecree motions were made with an improper purpose or with an intention to harass or maliciously injure Geraldine. Nor can it be said that a reasonable lawyer would not have raised the claims made in Calvin‘s postdecree motions. The reсord indicates that a contested issue raised in Calvin‘s motion to show cause was voluntarily dismissed after the discovery process revealed it was resolved. The remaining issues were addressed at the April Hearing. Ultimately, Calvin‘s motion to show cause was granted in part and his spousal support was reduced accordingly. The record further indicates that the trial court found that there had been a substantial change in Calvin‘s circumstances not contemplated at the time of the parties’ divorce but declined to modify spousal support based on the factors set forth in
{144} Therefore, Geraldine‘s second assignment of error is overruled.
III. Conclusion
{146} Accordingly, judgment is affirmed.
Appellant to pay 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, JUDGE
ANITA LASTER MAYS, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR