Branscum v. Sullenberger

2021 Ohio 3250

• Court: Ohio Court of Appeals
• Decided: September 17, 2021
• Docket: 2020-CA-23
• Status: Published

Opinion

[Cite as Branscum v. Sullenberger, 2021-Ohio-3250.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

WENDY BRANSCUM : : Plaintiff-Appellant : Appellate Case No. 2020-CA-23 : v. : Trial Court Case No. 2017-DR-99 : SCOTT EDWARD SULLENBERGER, : (Domestic Relations Appeal) et al. : : Defendants-Appellees :

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OPINION

Rendered on the 17th day of September, 2021.

MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 West Second Street, Suite 2103, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant

HARRY G. BEYOGLIDES, JR., Atty. Reg. No. 0018959, 130 West Second Street, Suite 1622, Dayton, Ohio 45402 Attorney for Third Party Defendant-Appellee, Judith A. LaMusga

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TUCKER, P.J. -2-

{¶ 1} Plaintiff-Appellant Wendy Branscum appeals from an order of the

Champaign County Family Court, finding her in contempt and ordering her to pay attorney

fees and costs. As grounds for this appeal, Branscum asserts that the court's decision

was an abuse of discretion because there was no evidence the fees were reasonable and

necessary and because some of the fees were incurred for expenses not related to the

finding of contempt. Because we find no abuse of discretion, we affirm.

I. Facts and Procedural History

{¶ 2} In May 2017, Wendy Branscum filed a complaint for divorce from her

husband, Scott Sullenberger. Thereafter, attorney Judith LaMusga, acting as guardian

for the estate of H.H., intervened in the divorce action in order to create a constructive

trust for real estate belonging to the estate of H.H. that had been acquired by Branscum.

A hearing on the divorce action was held in August 2018, at which time the parties’

agreement was set forth on the record. A final judgment and decree of divorce was filed

on December 2018. Of relevance hereto, the decree stated:

The parties reside in a residence located at 12893 Wolcott Rd., St.

Paris, Ohio, 43072. The real estate is deeded to [Branscum] and it was

purchased before the marriage by the [H.H.] Revocable Trust. The parties

agree the property is to be sold and the proceeds from the sale to be placed

into a Constructive Trust created by the court. The court will then transfer

jurisdiction of the Trust to the Montgomery County Probate Court, which will

assume jurisdiction over the issue of disbursement of the real estate -3-

proceeds. The parties agree that is the appropriate forum to determine

whether [Branscum] or [Sullenberger] are entitled to any proceeds from the

real estate sale proceeds for money they invested in or otherwise expended

into the real estate for improvements, liabilities, taxes, ownership,

construction, etc.

***

[Sullenberger shall] vacate the real estate within thirty days of the

filing of the Decree of Divorce. * * * [Branscum] shall cooperate with Judith

LaMusga in obtaining an appraisal of the real estate, at the cost of the [H.H.]

Guardianship. Thereafter, [Branscum] shall select a realtor familiar with

Champaign County real estate, subject to final approval by Ms. LaMusga,

to list the real estate. The parties will cooperate as necessary in executing

the listing agreement. Ms. LaMusga has the right to review and approve

the listing agreement.

[Branscum] and Ms. LaMusga will agree to defer to the realtor’s

recommendations as to list price, improvements to be made, or any other

suggestions to list and sell the property at the highest obtainable price.

[Branscum] will maintain the house in showing condition, will not

unreasonable [sic] deny showings, and will otherwise cooperate with

reasonable requests to assist in the marketing and sale of the property.

The parties will accept all reasonable offers, at the recommendation

of the realtor, and reasonable offers are considered to be within five percent

(5%) of the current list price. Ms. LaMusga has the right to review and -4-

approve any offer [of] sale.

[Branscum] will vacate the residence consistent with the terms of the

sale. [Branscum] may reside in the residence rent free pending the sale.

She will pay all utilities and taxes and all other expenses she has historically

paid.

{¶ 3} The court expressly retained jurisdiction to enforce its orders regarding the

real estate.

{¶ 4} In July 2019, LaMusga filed a motion to show cause which sought to hold

Branscum in contempt for failing to comply with the terms of the divorce decree as

applicable to the real estate. According to the motion, Branscum refused to sign

documents regarding the sale of the real estate and also instructed the realtor to take the

residence off the market. During a scheduling hearing held on October 1, 2019, the

parties reached an agreement requiring Branscum to sign a purchase contract she had

previously refused to sign. That agreement was reduced to a written order filed on

October 1, 2019.

{¶ 5} On October 7, 2019, LaMusga filed a second motion to show cause which

sought to hold Branscum in contempt for failing to comply with the court’s orders. The

motion stated that, while Branscum had signed the purchase contract, she had altered it

by making handwritten changes to the contract. Specifically, Branscum changed the

purchase price from $160,000 to $205,000, and she delayed the closing date. The

matter was set for a November hearing date.

{¶ 6} On October 29, 2019, LaMusga filed a motion for injunctive relief and a

restraining order. In the motion, LaMusga stated that Branscum continued to refuse to -5-

sign the appropriate documents regarding the sale of the property and that Branscum had

damaged the property. The following day, the court granted the motion and ordered

Branscum to maintain the house, to cause no more damage thereto, and to cease

removing fixtures. The court’s decision authorized LaMusga to sign documents

extending the listing contract and the offer of purchase made by potential buyers. The

court’s decision ordered the closing to take place “as soon as possible after the November

13, 2019 Show Cause Hearing but no later than December 5, 2019.” Branscum was

ordered to vacate the premises prior to the closing, to sign all closing documents, and to

present the keys to the premises at the closing.

{¶ 7} On November 22, 2019, the court filed a decision stating, in pertinent part,

as follows:

The Court met with counsel for the parties on November 20, 2019, in lieu of

a pretrial hearing on [LaMusga’s] Motion for Contempt filed October 7, 2019.

IT IS ORDERED AS FOLLOWS:

1. Plaintiff Wendy Branscum is to pay the following prior to closing;

- A Certificate of Judgment from Portfolio Recovery Associates, LLC in

the amount of $1,065.58;

- Delinquent taxes to be computed as of the closing date. The delinquent

taxes as of November 20, 2019, were in the approximate amount of

$7,194.70. The final amount is to be computed at closing and paid by

Plaintiff, Wendy Branscum. According to the Final Judgment and

Decree of Divorce, Plaintiff Wendy Branscum is to pay all utilities and

taxes. -6-

- All utilities to be calculated as of the closing date.

2. For the closing date of November 27, 2019, Plaintiff Wendy Branscum

shall do the following:

- At 1:00 p.m. on November 27, 2019, Plaintiff Wendy Branscum is to

permit the purchasers and their agent into the house located at 12893

Wolcott Road, Saint Paris, Ohio, to be inspected to meet requirements.

- At 3:00 p.m. on November 27, 2019, Plaintiff Wendy Branscum is to

appear * * * for the closing.

- Plaintiff Wendy Branscum shall sign the deed. If she does not, then

Attorney Judith A. LaMusga may sign the deed.

{¶ 8} The court’s order also continued the hearing on the motion for contempt to

December 11, 2019. Subsequent orders continued the hearing to January 2020.

{¶ 9} On January 2, 2020, the court filed a journal entry noting that the closing on

the sale of the property had occurred. On January 6, 2020, the court filed a journal entry

noting that the closing proceeds of $140,046.17 had been deposited with the court. The

entry ordered the clerk to distribute a check for the proceeds to the Montgomery County

Probate Court.

{¶ 10} On January 31, 2020, LaMusga filed a third motion to show cause, which

sought to hold Branscum in contempt for failing to pay the certificate of judgment and

delinquent taxes as required by the order filed November 22, 2019. LaMusga stated

those monies had to be paid from the closing costs due to Branscum’s failure to abide by

the terms of the order. The motion requested the court to order Branscum to reimburse

the estate of H.H. for those costs. LaMusga also asked for an order requiring Branscum -7-

to pay attorney fees and out of pocket expenses incurred by reason of Branscum’s failure

to comply with the orders of the court. An invoice for fees and costs was appended to

the motion.

{¶ 11} A hearing was conducted on August 4, 2020, at which time Branscum

admitted that she was in contempt for failing to comply with the order of November 22,

2019. The court then heard LaMusga’s testimony on the issue of fees and expenses.

LaMusga sought $8,600 in fees1 and $982.02 in costs. Following the hearing, the court

found Branscum in contempt and ordered her to reimburse the estate for the delinquent

taxes and certificate of judgment payments made by the estate. The court also awarded

the sum of $6,482.20 in attorney fees and expenses. The court’s decision did not

differentiate between the amount of fees and the amount of expenses awarded, and it did

not set forth any findings of fact or conclusions of law regarding the fees and expenses.

Neither party filed a motion requesting findings of fact or conclusions of law.

{¶ 12} Branscum appeals.

II. Analysis

{¶ 13} Branscum’s first and second assignments of error are as follows:

THE TRIAL COURT ERRED BY AWARDING ATTORNEY FEES

AND EXPENSES FOR MATTERS UNRELATED TO APPELLANT’S

ADMISSION OF CONTEMPT.

THE ATTORNEY FEES AND EXPENSES AWARDED WERE

1 The attorney fees itemized on the invoice totaled $9,000, but at the hearing, LaMusga acknowledged a typographical error in her hourly rate for one of the entries. Adjusting for this error, the amount sought for attorney fees was $8,600. -8-

UNREASONABLE, UNJUSITIFED [SIC], AND NOT SUPPORTED BY

EVIDENCE.

{¶ 14} In this appeal, Branscum does not challenge the court's finding of contempt

against her, but she contests the award of attorney fees and expenses. She notes that

the claim for fees and expenses related back to fees and expenses incurred as early as

May 30, 2019. Branscum thus asserts the “vast majority of attorney fees and expenses

awarded by the trial court were unrelated to the contempt to which [she] admitted.” She

further claims that LaMusga failed to present evidence to support a finding that the fees

were reasonable and necessary.

{¶ 15} A court may hold a party in contempt where that party fails to comply with a

lawful judgment or court order. R.C. 2705.02. In conjunction, a trial court has the

discretion to assess reasonable attorney fees as part of the costs against a defendant

found guilty of civil contempt. Planned Parenthood v. Project Jericho, 52 Ohio St.3d 56,

67, 556 N.E.2d 157 (1990). An appellate court will not reverse the trial court's

determination of reasonable attorney fees absent an abuse of discretion. Bittner v. Tri-

County Toyota, Inc., 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991). An abuse of

discretion occurs when the trial court’s attitude is unreasonable, arbitrary or

unconscionable. Miller v. Miller, 12th Dist. Butler No. CA2001-06-138, 2002-Ohio-3870,

¶ 8.

{¶ 16} “An award of attorney fees must represent reasonable compensation for

necessary legal services rendered, and the amount is a matter within the court's sound

discretion.” Dayton Women's Health Ctr., Inc. v. Enix, 86 Ohio App.3d 777, 780, 621

N.E.2d 1262 (2d Dist.1993). “Some of the factors to be considered in determining the -9-

amount of attorney fees to be awarded include: (1) the time and labor involved in

maintaining this litigation, (2) the novelty, complexity, and difficulty of the questions

involved, (3) the professional skill required to perform the necessary legal services, (4)

the experience, reputation, and ability of the attorneys, and (5) the miscellaneous

expenses of this litigation.” Id., quoting State ex rel. Montrie Nursing Home v. Creasy, 5

Ohio St.3d 124, 449 N.E.2d 763 (1983).

{¶ 17} We begin by noting that the domestic relations court did not, as asserted by

Branscum, award all of the fees requested on the invoice submitted with the motion to

show cause. Indeed, the invoice set forth fees in the amount of $8,600 and expenses in

the amount of $982.02 for a total reimbursement request of $9,582.02. As set forth

above, the court awarded the sum of $6,482.02, representing both fees and expenses,

without any differentiation between the two.

{¶ 18} The facts of this case demonstrate that Branscum has failed, since the date

of the divorce decree, to comply with the court’s orders regarding the sale of the real

estate. Indeed, the record demonstrates that she intentionally attempted to derail the

sale. A review of the invoice submitted by LaMusga leads us to conclude the trial court

did not abuse its discretion regarding the amount of fees and expenses awarded.2 The

trial court concluded, and we agree, that approximately $3,000 of the requested fees and

expenses were not related to the November 22, 2019 contempt finding. Moreover,

based upon LaMusga’s invoice and our review of the record, the domestic relations court

correctly determined the fees and expenses which related to actions required to institute,

2 By our calculation, the divorce court could have awarded slightly more in fees than it did. -10-

prosecute, and enforce the November 22, 2019 contempt order.

{¶ 19} We next turn to Branscum’s claim that the evidence did not support a finding

that the fees and expenses were reasonable and necessary. We note LaMusga testified

that her usual customary fee was $200 per hour and that the fees and expenses were

accrued by reason of Branscum’s failure to aid in, and her interference with, the sale of

the property. While the court did not set forth the basis for its calculation, Branscum has

not directed this court's attention to anything in the record which demonstrates that the

trial court failed or refused to consider the already-noted factors that a court should

consider when making an attorney fee award. In the absence of evidence to the

contrary, we must presume the trial court considered them.

{¶ 20} Based upon the facts in this record, we conclude that the domestic relations

court did not abuse its discretion with regard to the award of attorney fees and attendant

expenses. Accordingly, Branscum’s assignments of error are overruled.

III. Conclusion

{¶ 21} Both of Branscum’s assignments of error being overruled, the judgment of

the trial court is affirmed.

WELBAUM, J. and EPLEY, J., concur.

Copies sent to:

Michael T. Columbus Harry G. Beyoglides, Jr. Scott Edward Sullenberger Hon. Brett A. Gilbert -11-