[Cite as Brown v. Brown, 2017-Ohio-8175.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
ANTHONY E. BROWN : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : DONA M. BROWN : Case No. 2017CA00017 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Domestic Relations Divison, Case No. 2015- DR-01191
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 11, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WENDY J. ROCKENFELDER KANI HARVEY HIGHTOWER KEVIN R. L'HOMMEDIEU Lynda Harvey Williams & Associates, L.L.C 5502 Market Avenue, North, Suite B One Cascade Plaze, Suite 2100 Canton, Ohio 44721 Akron, Ohio 44308 Stark County, Case No. 2017CA00017 2
Baldwin, J.
{¶1} Defendant-appellant Dona M. Brown appeals from the December 28, 2016
Judgment Entry Decree of Divorce issued by the Stark County Court of Common Pleas,
Domestic Relations Division.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Dona M. Brown and appellee Anthony E. Brown were married on
September 11, 1998. Four children were born as issue of such marriage namely, C.B.
(DOB 3/31/01), M.B. (DOB 1/27/03), S.B. (DOB 5/8/05) and T.B. (DOB 3/10/08).
{¶3} On December 4, 2015, appellee filed a complaint for a divorce against
appellant. Appellant, on January 6, 2016, filed an answer and counterclaim. Appellee filed
a reply to the counterclaim on January 19, 2016 and a Motion for Shared Parenting on
March 3, 2016. As memorialized in a Judgment Entry filed on April 5, 2016, the matter
was set for trial on June 2, 2016.
{¶4} Appellee filed an Amended Motion for Shared Parenting Plan on May 25,
2016.
{¶5} On June 2, 2016, the parties reached an agreement as to parenting and
signed a Shared Parenting Plan which was approved and adopted by the trial court. The
Magistrate, in an Order filed on June 6, 2016, continued the trial until June 24, 2016. Due
to a conflict in the Magistrate’s schedule, the matter, pursuant to a Magistrate’s Order
filed on June 7, 2016, was continued until August 22, 2016.
{¶6} Appellant’s counsel, on August 16, 2016, filed a Motion to Withdraw as
Counsel and a Motion for a Continuance of Trial. Attached to the former motion was an
August 8, 2016 e-mail from appellant to her counsel stating that she would be seeking Stark County, Case No. 2017CA00017 3
other counsel and to please stop working on her case. In her e-mail, she asked to be
advised as to when she could come and pick up her file. The trial court granted the Motion
to Withdraw via a Judgment Entry filed on August 16, 2016. However, on the same day,
the trial court denied the motion seeking a reasonable continuance of the trial so that
appellant could obtain replacement counsel.
{¶7} Just prior to the commencement of trial on August 22, 2016, the parties
entered into a Separation Agreement and Amended Shared Parenting Plan. At the time,
appellant was not represented by counsel. The only issues remaining to be determined
at trial were spousal support, child support, and allocation of percentages for uninsured
medical costs. The following testimony was adduced at trial.
{¶8} Ralph Dublikar, the managing partner of the firm in which appellee is a
partner, testified that appellant’s earnings were tied to the earnings of the firm. He
testified that, as a partner, appellee is responsible for paying his own Social Security,
Medicare, State taxes and local taxes. According to Dublikar, the base monthly salary for
all partners was $8,000.00 a month. However, because there have been times when there
were insufficient funds to pay such amount, at times appellant has earned $4,000.00 a
month. He further testified that “if a partner generates sufficient revenues um… in any
given month, that number goes up to eleven thousand.” Trial Transcript at 16. Dublikar
testified that if an attorney generates a certain amount of money in a year, he or she
would be entitled to a bonus that is paid out the following year and is sometimes paid out
all at once and other times incrementally. According to him, the firm matches voluntary
contributions to appellee’s 401(k). Stark County, Case No. 2017CA00017 4
{¶9} Dublikar testified that appellee earned a large bonus in the amount of
$39,000.00 that was paid to him in 2013 which, he testified, was an anomaly. Appellee
did not receive a bonus in 2014 and, in 2015, received a bonus in the amount of
$8,290.00. In 2015, appellee received a total of $135,656.00 including draws, bonuses,
and employer contributions to his 401(k) and HSA (health savings account) and for
employer paid family health insurance. Dublikar testified that appellee would not be
receiving a bonus in 2016. Dublikar further testified that the firm pays for appellee’s health
insurance but that the amount paid is treated as income to the partners. The firm also
pays money into a HSA (health savings account). Dublikar testified that appellee’s taxable
income would be reduced because appellee’s insurance expenses would not be as high
since the children were going to be covered under appellant’s insurance and that overall,
appellee was going to have $10,000.00 less in income. He also testified that appellee’s
HSA contributions were going to be reduced and that appellee would receive $1,500.00
less in income on his K-1 because of such reduction.
{¶10} At the trial, appellee testified that appellant was 43 years old, was a physical
therapist working in the Canton City Schools for the Stark Educational Service Center
and that her gross wage was $67,842.00. Appellant has a Bachelors and a Master’s
Degree. He further testified that he had been paying temporary orders to appellant and
also was paying expenses on behalf of the children including school supplies and other
items in the amount of $170.00 at Wal-Mart and $216.75 at Famous Footwear to purchase
shoes for the children. Appellee testified that in the future, without having to provide
health insurance for the children, his taxable income would be approximately
$124,000.00. Stark County, Case No. 2017CA00017 5
{¶11} When appellant was asked if she wanted to cross-examine appellee, she
indicated to the trial court that she was having trouble getting herself together and
requested a continuance. The Magistrate indicated that he was unable to grant a
continuance. Appellant did not call any witnesses or present any exhibits. She did cross-
examine appellee.
{¶12} The Magistrate, in a Decision filed on September 9, 2016, recommended
that appellee pay appellant spousal support to appellant in the amount of $250.00 a
month for 72 months and child support in the amount of $1,500.00 a month with health
insurance or $1,341.07 a month when private health insurance is provided. He based his
decision on appellant earning a salary of $67,842.00 a year and appellee earning
$132,000.00 a year. He found that appellee’s income, not including bonuses, was
$124,000.00 a year and, including average $8,000.00 bonuses, was $132,000.00 a year.
The Magistrate also recommended that each party pay their own legal fees. Appellant
filed objections to the Magistrate’s Decision.
{¶13} An objection hearing was held on December 8, 2016. At the hearing,
appellee presented exhibits to the trial court showing that, in September of 2016, he paid
$505.87 in expenses for the children not including $71.00 for half of their cell phone bills
and $510.00 a month for tuition and that, in October of 2016, he paid $794.81 a month in
expenses of the children not including the cell phone and tuition. He also presented an
exhibit showing that, in November of 2016, he paid a total of $969.26 not including the
cell phone and tuition.
{¶14} Following the hearing held on December 8, 2016, the trial court, pursuant
to a Judgment Entry filed on the same day, sustained the objections in part, ordering that Stark County, Case No. 2017CA00017 6
the order of spousal support was subject to the continuing jurisdiction of the trial court to
modify the order in amount only based upon a change of circumstances. The trial court
approved and adopted the remainder of the Magistrate’s Decision. A Judgment Entry
Decree of Divorce was filed on December 28, 2016.
{¶15} Appellant now raises the following assignment of error on appeal:
{¶16} I. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
AS A MATTER OF LAW AND VIOLATED WIFE’S CONSTITUTIONAL DUE PROCESS
RIGHTS WHEN IT FAILED TO GRANT THE WIFE’S REQUEST FOR A CONTINUANCE
SO SHE COULD OBTAIN LEGAL REPRESENTATION AND REQUIRED HER TO
PROCEED PRO SE.
{¶17} II. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
AS IT RELATES TO THE COMPUTATION OF WIFE’S SPOUSAL SUPPORT, AS THE
DETERMINATION OF THE AMOUNT OF SPOUSAL SUPPORT FOR WIFE WAS AN
ABUSE OF DISCRETION, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,
AND CONTRARY TO LAW.
{¶18} III. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
AS IT RELATES TO THE COMPUTATION OF CHILD SUPPORT, AS THE
DETERMINATION OF THE AMOUNT OF CHILD SUPPORT HUSBAND WAS TO PAY
WIFE WAS AN ABUSE OF DISCRETION, AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, AND CONTRARY TO LAW.
{¶19} IV. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR
AS A MATTER OF LAW WHEN IT FAILED TO CONSIDER THE WIFE’S REQUEST FOR
ATTORNEYS FEES. Stark County, Case No. 2017CA00017 7
I
{¶20} Appellant, in her first assignment of error, argues that the trial court erred
when it denied her request for a continuance of the trial. We disagree.
{¶21} The decision to grant or deny a continuance is entrusted to the broad, sound
discretion of the trial court and will not be disturbed absent an abuse of discretion. Lemon
v. Lemon, 5th Dist. Stark No. 2010CA00319, 2011–Ohio–1878, citing State v. Unger, 67
Ohio St.2d 65, 423 N.E.2d 1078 (1981). In determining whether a trial court abused its
discretion in denying a motion for a continuance, an appellate court should consider the
following factors: (1) the length of the delay requested; (2) whether other continuances
have been requested and received; (3) the inconvenience to witnesses, opposing
counsel, and the court; (4) whether there is a legitimate reason for the continuance; (5)
whether the defendant contributed to the circumstances giving rise to the need for the
continuance, and other relevant factors, depending on the unique facts of each case.
Unger, supra, at 67–68, 423 N.E.2d 1078. The reviewing court must also weigh the
potential prejudice to the movant against the trial court's right to control its own docket. In
re Barnick, 8th Dist. No. 88334, 2007–Ohio–1720, ¶ 10, quoting Unger.
{¶22} In the case sub judice, the trial was originally scheduled for June 2, 2016
but, as memorialized in a Magistrate’s Order filed on June 6, 2016, was rescheduled to
June 24, 2016. However, in an Order filed on June 7, 2016, the Magistrate continued the
trial until August 22, 2016 due to a conflict with his schedule.
{¶23} On August 8, 2016, two weeks before trial, appellant sent an e-mail to her
counsel indicating that she wanted him to stop working on her case and that she would
be seeking other counsel. Appellant’s counsel, on August 16, 2016, filed a Motion to Stark County, Case No. 2017CA00017 8
Withdraw and a Motion for a Continuance asking that appellant be given a reasonable
opportunity to obtain replacement counsel to represent her. While the trial court granted
the Motion to Withdraw, it overruled the request for a continuance.
{¶24} Upon review of the record, we find that the trial court did not abuse its
discretion in denying appellant's request for a continuance because the trial court’s
decision was not arbitrary, unconscionable or unreasonable. Appellant contributed to the
circumstances giving rise to the need for the continuance as she chose to discharge
counsel two weeks before trial. In addition, the trial had previously been continued, and
the matter had been pending on the court's docket since December of 2015. Moreover,
when appellant appeared on August 22, 2016 for trial, she did not request a continuance
until it was time for her to cross-examine appellee.
{¶25} Appellant’s first assignment of error is, therefore, overruled.
II
{¶26} Appellant, in her second assignment of error, contends that the trial court
erred in awarding her only $250.00 a month in spousal support for a period of 72 months.
{¶27} Our standard of review of decisions as to spousal support is an abuse of
discretion. Snyder v. Synder, 5th Dist. Stark No. 2008CA00219, 2009–Ohio–5292, ¶ 28.
Abuse of discretion implies the trial court's attitude is unreasonable, arbitrary, or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶28} R.C. 3105.18 governs spousal support. Subsection (C) states the following:
{¶29} (C)(1) In determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms of payment, and duration Stark County, Case No. 2017CA00017 9
of spousal support, which is payable either in gross or in installments, the court shall
consider all of the following factors:
{¶30} (a) The income of the parties, from all sources, including, but not limited to,
income derived from property divided, disbursed, or distributed under section 3105.171
of the Revised Code;
{¶31} (b) The relative earning abilities of the parties;
{¶32} (c) The ages and the physical, mental, and emotional conditions of the
parties;
{¶33} (d) The retirement benefits of the parties;
{¶34} (e) The duration of the marriage;
{¶35} (f) The extent to which it would be inappropriate for a party, because that
party will be custodian of a minor child of the marriage, to seek employment outside the
home;
{¶36} (g) The standard of living of the parties established during the marriage;
{¶37} (h) The relative extent of education of the parties;
{¶38} (i) The relative assets and liabilities of the parties, including but not limited
to any court-ordered payments by the parties;
{¶39} (j) The contribution of each party to the education, training, or earning ability
of the other party, including, but not limited to, any party's contribution to the acquisition
of a professional degree of the other party;
{¶40} (k) The time and expense necessary for the spouse who is seeking spousal
support to acquire education, training, or job experience so that the spouse will be Stark County, Case No. 2017CA00017 10
qualified to obtain appropriate employment, provided the education, training, or job
experience, and employment is, in fact, sought;
{¶41} (l) The tax consequences, for each party, of an award of spousal support;
{¶42} (m) The lost income production capacity of either party that resulted from
that party's marital responsibilities;
{¶43} (n) Any other factor that the court expressly finds to be relevant and
equitable.
{¶44} The Magistrate, in his Decision, addressed all of the factors set forth above
and noted that there was evidence with respect to all of such factors except for (j) and
(m). The Magistrate found that appellant earned $67,842.00 a year and appellee
$132,000.00 a year, that both were in their forties and in good health, and that both had
retirement benefits that had been divided pursuant to the Separation Agreement. The
Magistrate further found that the parties had been married almost 18 years and had
significant debt that both would be burdened by. As noted by appellee, the trial court’s
spousal and child support awards results in appellant receiving over 50% of the net
disposable income. Finally, the trial court retained jurisdiction over spousal support.
{¶45} Based on the foregoing, we find that the trial court did not abuse its
discretion in its spousal support award.
{¶46} Appellant’s second assignment of error is, therefore, overruled.
III
{¶47} Appellant, in her third assignment of error, argues that the trial court erred
in deviating downward from the basic child support computation rather than upward. Stark County, Case No. 2017CA00017 11
{¶48} In reviewing matters concerning a child support deviation, the decision of
the trial court should not be overturned absent an abuse of discretion. Booth v. Booth, 44
Ohio St.3d 142, 541 N.E.2d 1028 (1989). In order to find an abuse of discretion, we must
find that the court's action is unreasonable, arbitrary, or unconscionable and not merely
an error of law or judgment. Blakemore, supra.
{¶49} A trial court may order child support that deviates from the amount of child
support that would otherwise result from the use of the basic child support schedule and
the applicable worksheet if the amount calculated would be unjust or inappropriate and
would not be in the best interest of the child. Marker v. Grimm, 65 Ohio St.3d 139, 601
N.E.2d 496 (1992). When determining whether a departure from the guideline child
support amount is warranted, the trial court may consider whether a parent incurs
extraordinary costs associated with visitation. Hurst v. Hurst, 12th Dist. Warren No.
CA2013–10–100, 2014–Ohio–4762, citing R.C. 3119.23(D); Kemp v. Kemp, 5th Dist.
Stark No.2009CA00035, 2009–Ohio–6089. The court also may consider “[s]ignificant in-
kind contributions from a parent, including, but not limited to, direct payment for lessons,
sports equipment, schooling, or clothing.” See R.C. 3119.23(J).
{¶50} R.C. 3119.22 provides that if the court deviates from the child-support
guidelines, it shall enter in the journal the amount of the child support calculated pursuant
to the basic child-support schedule and the applicable worksheet, plus its determination
that the amount would be unjust or inappropriate and would not be in the best interest of
the child, and findings of fact supporting its determination. Tennant v. Martin–Auer, 188
Ohio App.3d 768, 2010–Ohio–3489, 936 N.E.2d 1013 (5th Dist. Licking). However, the Stark County, Case No. 2017CA00017 12
statute provides no “set method” to employ to formulate a deviation. Lopez–Ruiz v. Botta,
10th Dist. Franklin No. 11AP–577, 2012–Ohio–718.
{¶51} In the case sub judice, the child support guideline worksheet supported an
order of child support requiring appellee to pay appellant $1,940.70 a month plus
processing with private health insurance and $1,781.71 per month plus processing and
$323.67 per month cash medical when private health insurance was not provided. At the
trial, appellee asked the trial court to deviate downward to a figure of $1,500.00 a month
in child support because of the Shared Parenting Plan and the additional expenses that
appellee pays for the children outside of the temporary order of child support.
{¶52} Under the Shared Parenting Plan, appellee spends more time with the
children than under the standard visitation schedule. Moreover, under the Plan, appellee
agreed to pay half of the children’s’ tuition for private elementary and middle school. He
testified that he believed that the total was $500.00 a month. Appellee further testified
that he agreed to pay 50% of the children’s extracurricular activities costs and that he had
been paying expenses on behalf of the children including $170.00 at Wal-Mart for school
supplies and other items, $216.75 in August of 2016 at Famous Footwear for shoes,
$35.00 for haircuts and $30.00 for a boater’s license for the oldest son. Appellee testified
that when the children had expenses, whether they were with him or not, he paid for the
same.
{¶53} The Magistrate, in his Decision, found that, based on the foregoing, the
guideline child support amount would be unfair, unjust and not in the best interest of the
children and that a downward deviation in the amount of child support was warranted. Stark County, Case No. 2017CA00017 13
The trial court, in its December 8, 2016 Judgment Entry, approved and adopted such
determination.
{¶54} We cannot say, based upon the record, that the trial court’s decision was
unreasonable, arbitrary, or unconscionable. While appellant, at the objection hearing,
argued, in part, that there should be an upward deviation in child support based on the
fact that she would by paying for all of the private high school tuition for the children,
appellee’s counsel indicated to the trial court that appellee wanted his children to attend
the local public high school and that he conceded that, if appellant wanted the children to
go to private parochial school, appellant could pay for the tuition. Moreover, at the
objection hearing, appellee, as is stated above in the facts, provided the trial court with
documentation was to other significant expenses that he had incurred for the benefit of
the children.
{¶55} Appellant’s third assignment of error is, therefore, overruled.
IV
{¶56} Appellant, in her fourth assignment of error, maintains that the trial court
erred in failing to consider her request for attorney’s fees.
{¶57} R.C. 3105.73(A) states the following:
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 Stark County, Case No. 2017CA00017 14
temporary spousal support, the conduct of the parties, and any other
relevant factors the court deems appropriate.
{¶58} As explained by this Court in Dotts v. Schaefer, 5th Dist. Tuscarawas No.
2014 AP 06 0022, 2015–Ohio–782, ¶ 17:
The resolution of a request for attorney fees is vested in the sound
discretion of the trial court and will not be overturned upon review absent a
showing of an abuse of discretion. Bagnola v. Bagnola, 5th Dist. Stark No.
2004CA00151, 2004–Ohio–7286 [2004 WL 3090245], ¶ 36. While the trial
court has discretion in determining the amount of attorney fees, the court
must base its decision on evidence showing the reasonableness of the time
spent on the matter and the hourly rate. Id. Where the amount of an
attorney's time and work is evident to the trier of fact, an award of attorney
fees, even in the absence of specific evidence to support the amount, is not
an abuse of discretion. Hawk v. Hawk, 5th Dist. Tuscarawas No.
2002AP040024, 2002–Ohio–4384 [2002 WL 1969845], ¶ 28.
{¶59} At the trial before the Magistrate, appellant never specifically requested
attorney’s fees. Rather, appellant asked that her new higher full-time salary not be
included into a consideration by the trial court but that her previous, part-time salary be
considered based on her substantial attorney’s fees. She did not present any evidence
with respect to the amount of or reasonableness of her attorney’s fees. As is stated
above, the Magistrate, in his Decision, recommended that each party pay their own legal
fees. The trial court, in its December 8, 2016 Judgment Entry, approved and affirmed Stark County, Case No. 2017CA00017 15
such decision with one limited exception, stating that it had considered the factors set
forth in R.C. 3105.73(A), cited above. We find no abuse of discretion.
{¶60} Appellant’s fourth assignment of error is, therefore, overruled.
{¶61} Accordingly, the judgment of the Stark County Court of Common Pleas,
Domestic Relations Division, is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Earle Wise, J. concur.