[Cite as Dangelo v. Dangelo, 2024-Ohio-425.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
KENDRA DANGELO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : STEVEN P. DANGELO : Case No. 2023CA00068 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Family Court Division, Case No. 2022DR00169
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 6, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LORRIE FUCHS LAWRENCE J. COURTNEY 3974 Wales Road NW 203 North Broadway Street Massillon, OH 44646 P.O. Box 277 Medina, OH 44258 Stark County, Case No. 2023CA00068 2
King, J.
{¶ 1} Defendant-Appellant, Steven P. Dangelo ("husband"), appeals the August
2, 2023 final judgment entry of divorce of the Court of Common Pleas of Stark County,
Ohio, Family Court Division. Plaintiff-Appellee is Kendra Dangelo ("wife"). We affirm the
trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties were married on July 29, 2018. They have two children, one
born in November 2014 and one born in January 2022. On March 2, 2022, wife filed a
complaint for divorce; an amended complaint was filed on March 21, 2022.
{¶ 3} During the marriage, husband was a union worker; he would be called for a
job, perform the job, and get laid off until he was called for the next job. In July 2021,
husband went to Maine to work on a pipeline. While there, he moved in with another
woman he met there. He was laid off in November 2021, and was unable to find other
employment in Maine. As a result, he returned to Ohio in July 2022. He had been
suspended from the union because he did not pay his union dues; he found a job as a
meat cutter. He did not see his older child from July 2021 until December 2021 and then
not again until July 2022. Husband saw the newborn born in January 2022 just once.
{¶ 4} On April 4, 2022, an agreed judgment entry was filed wherein husband
agreed to pay wife $400 per month for child support.
{¶ 5} In a letter to husband's attorney dated August 29, 2022, wife sought
discovery documents that had not been provided as requested. On September 22, 2022,
wife filed a motion to compel, seeking an order for husband to provide the missing Stark County, Case No. 2023CA00068 3
discovery; wife also sought attorney fees for having to file the motion. By judgment entry
filed same date, the trial court ordered husband to provide the requested discovery.
{¶ 6} On September 28, 2022, wife filed a motion for contempt for husband's
failure to pay child support per the agreed order; wife requested attorney fees.
{¶ 7} On November 3, 2022, wife filed a motion for sanctions and attorney fees
for husband's failure to comply with the September 22, 2022 order to compel; wife
requested $1,000.
{¶ 8} On November 4, 2022, husband filed a motion to modify child support,
claiming because the pipeline work ceased, he was making minimal amounts of money
while looking for full time employment.
{¶ 9} A hearing before a magistrate was held on February 1, 2023. By decision
filed March 8, 2023, the magistrate granted the parties a divorce and made various orders
including imputing husband's yearly income at $97,000, and ordering him to pay child
support ($1,293.30 per month) and spousal support ($500 per month for eighteen
months). The magistrate found husband in contempt for failing to provide discovery and
pay the agreed child support. The magistrate also divided the parties' property, giving
husband $5,536 more in net assets, and ordered husband to pay wife partial attorney
fees ($5,000).
{¶ 10} On March 21, 2023, husband filed objections, arguing pertinent to this
appeal the calculation of child support, spousal support, and attorney fees on improperly
imputed income, the contempt finding, and the award of attorney fees. By judgment entry
filed June 14, 2023, the trial court denied the objections, finding husband was
underemployed based upon his skills, experience, and past work history, and the Stark County, Case No. 2023CA00068 4
imputation of income was appropriate. The trial court also found husband's credibility
was "clearly in question based upon his dishonest responses, changing story, admissions
that the (sic) lied on credit applications, failure to file any financial or property affidavits,
and failure to comply with discovery requests." The trial court made an independent
analysis of the facts and applicable law and approved and adopted the magistrate's
decision and ordered it entered as a matter of record. Husband filed an appeal.
Thereafter, on August 2, 2023, the trial court filed a final judgment entry of divorce
approving and adopting the magistrate's decision. By judgment entry filed October 23,
2023, this court found husband's appeal was premature and pursuant to App.R. 4(C),
treated the notice of appeal as filed immediately following the August entry.
{¶ 11} Husband filed his appeal with the following assignments of error:
I
{¶ 12} "THE COURT COMMITTED AN ERROR WHEN IT ADOPTED
MAGISTRATE'S DECISION IMPUTING $97,000 AS HUSBAND'S YEARLY INCOME
WHEN IN REALITY ACTUAL INCOME OF THE HUSBAND IS AROUND $35,000."
II
{¶ 13} "THE COURT ERRED IN AWARDING ATTORNEY FEES TO THE
PLAINTIFF WIFE."
III
{¶ 14} "THE COURT ERRED AS TO THE AMOUNT OF CHILD SUPPORT AND
SPOUSAL SUPPORT."
IV Stark County, Case No. 2023CA00068 5
{¶ 15} "THE COURT ERRED IN FINDING APPELLANT GUILTY OF CONTEMPT
AND FAILURE TO PROVIDE DISCOVERY."
V
{¶ 16} "THE COURT ERRED WHEN ADMITTING PLAINTIFF'S EXHIBITS AS
THE MAGISTRATE NEVER EVEN INQUIRED IF DEFENDANT'S ATTORNEY HAD ANY
OBJECTIONS. THE COURT JUST ADMITTED THEM."
VI
{¶ 17} "THE COURT ERRED AS THE APPELLEE NEVER TESTIFIED AS TO
THE GROUNDS FOR JURISDICTION AND THE PROPER VENUE."
VII
{¶ 18} "THE TRIAL COURT ERRED WHEN IT ORDERED CHILD SUPPORT
WITHOUT ORDERING SPECIFIC PROVISION FOR PARENTING TIME IN VIOLATION
OF R.C. 3119.08."
{¶ 19} All of husband's assignments of error will be reviewed under an abuse of
discretion standard. Rock v. Cabral, 67 Ohio St.3d 108, 616 N.E.2d 218 (1993) (imputing
income); Rand v. Rand, 18 Ohio St.3d 356, 481 N.E.2d 609 (1985) (attorney fees); Booth
v. Booth, 44 Ohio St.3d 142, 541 N.E.2d 1028 (1989) (child support); Kunkle v. Kunkle,
51 Ohio St.3d 64, 554 N.E.2d 83 (1990) (spousal support); Johnson v. Johnson, 88 Ohio
App.3d 329, 623 N.E.2d 1294 (5th Dist.1993) (retaining jurisdiction on spousal support);
State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991) (contempt); Stark County, Case No. 2023CA00068 6
Steiner v. Steiner, 5th Dist. Stark No. 2002CA00305, 2003-Ohio-1904 (admission of
exhibits); Schalk v. Schalk, 12th Dist. Clermont No. CA2023-01-001, 2023-Ohio-4584
(parenting time order).
{¶ 20} "Abuse of discretion" means an attitude that is unreasonable, arbitrary or
unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248
(1985). Most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary. AAAA
Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d
157, 161, 553 N.E.2d 597 (1990). An unreasonable decision is one backed by no sound
reasoning process which would support that decision. Id. "It is not enough that the
reviewing court, were it deciding the issue de novo, would not have found that reasoning
process to be persuasive, perhaps in view of countervailing reasoning processes that
would support a contrary result." Id.
{¶ 21} In his first assignment of error, husband claims the trial court erred in
imputing his yearly income at $97,000. We disagree.
{¶ 22} Whether a parent is "voluntarily underemployed" and the amount of
"potential income" to be imputed are matters to be determined by the trial court based
upon the facts and circumstances of each case. Rock, supra, at syllabus. "In deciding if
an individual is voluntarily under employed or unemployed, the court must determine not
only whether the change was voluntary, but also whether it was made with due regard to
obligor's income-producing abilities and his or her duty to provide for the continuing needs Stark County, Case No. 2023CA00068 7
of the child." Farrell v. Farrell, 5th Dist. Licking No. 2008-CA-0080, 2009-Ohio-1341, ¶
20, citing Woloch v. Foster, 98 Ohio App.3d 86, 649 N.E.2d 918 (1994).
{¶ 23} The trial court found husband to be underemployed "based upon his skills,
experience and past work history." Judgment Entry filed June 14, 2023. R.C.
3119.01(C)(9)(b) states "income" means: "For a parent who is unemployed or
underemployed, the sum of the gross income of the parent and any potential income of
the parent." R.C. 3119.01(C)(17)(a) lists criteria for a trial court to consider in determining
"potential income," including "[i]mputed income that the court or agency determines the
parent would have earned if fully employed."
{¶ 24} The history of husband's income is set forth in detail in the magistrate's
decision at 3-5, as well as his conflicting testimony regarding his income. Husband's tax
returns for 2018, 2019, and 2020 support the findings. Plaintiff's Exhibits 21, 22, 23. He
did not file a tax return for 2021 because his records were stolen and he could not
remember who he had worked for that year. T. at 130. In an answer to an interrogatory,
he listed his income as "Zero." Plaintiff's Exhibit 32, Question No. 14. In a 2019 credit
application for the purchase of his truck, he listed his income at $9,800 per month; in a
2020 credit application for the purchase of an RV, he listed his income as $10,000 per
month. Plaintiff's Exhibits 1 and 4. He testified he lied on the applications to get the credit
approved, although he first testified he did not lie on the RV credit application. T. at 94-
97.
{¶ 25} Husband explained he could not obtain any union work because he failed
to pay his union dues, giving two explanations: either he did not have the money to pay
or it was because he did not receive his mail in Maine informing him to pay. T. at 79, 108- Stark County, Case No. 2023CA00068 8
110. He is capable of operating several different kinds of machinery including an
excavator, but he has not pursued excavator work because he "can't afford to drive all
across town with diesel." T. at 6-9, 123-125. He has had side businesses doing tree
work, dozing, stump grinding, and snow plowing. T. at 8-9, 25-26, 29-30, 32; Plaintiff's
Exhibits 10, 12, 13, 16. Husband testified he was currently working at a meat processing
plant making $17 an hour, or $35,360 per year. T. at 81. He stated his girlfriend pays for
everything including the payments on his truck. T. at 88, 101, 108.
{¶ 26} The magistrate averaged husband's income from 2018, 2019, and 2020
which came to approximately $97,000 per year. Magistrate's Decision at 13. Husband
did not file a financial statement and apparently does not have any living expenses since
his girlfriend pays for everything.
{¶ 27} Based upon the exhibits and the testimony presented, we find there was
competent, credible evidence presented to support the trial court's conclusion that
husband was voluntarily underemployed and to support the calculation of the amount of
imputed income.
{¶ 28} Upon review, we find the trial court did not abuse its discretion in imputing
husband's income.
{¶ 29} Assignment of Error I is denied.
{¶ 30} In his second assignment of error, husband claims the trial court erred in
awarding attorney fees to wife. We disagree.
{¶ 31} In awarding wife attorney fees, the magistrate considered "the parties'
marital assets, incomes, any award of temporary spousal support, the conduct of the Stark County, Case No. 2023CA00068 9
parties and any other relevant factor" under R.C. 3105.73. Magistrate's Decision at 16.
Husband's conduct is discussed in Assignment of Error IV.
{¶ 32} "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." Bagnola v. Bagnola, 5th Dist. Stark No.
2004CA00151, 2004-Ohio-7286, ¶ 36. "Ultimately, the trier of fact has (1) the discretion
to award attorney fees or not award attorney fees and (2) the discretion to decide on
evidence showing the reasonableness of the time spent on the matter and the hourly rate.
A trial court may believe all, part, or none of the testimony of any witness who appears
before it." Jourdan v. Jourdan, 5th Dist. Perry No. 22-CA-00004, 2023-Ohio-1826, 216
N.E.3d 42, ¶ 109, citing Rogers v. Hill, 124 Ohio App.3d 468, 706 N.E.2d 438 (4th
Dist.1998). "Unless the amount of fees determined is so high or so low as to shock the
conscience, an appellate court will not interfere." Brooks v. Hurst Buick-Pontiac-Olds-
GMC, Inc., 23 Ohio App.3d 85, 91, 491 N.E.2d 345 (1985).
{¶ 33} Wife testified to receiving an itemized bill from her counsel. T. at 50;
Plaintiff's Exhibit 35. Husband's counsel objected, arguing "an attorney needs to testify
as to the value of her services." T. at 51. The magistrate noted the objection. Id.
{¶ 34} Plaintiff's Exhibit 35 is a detailed itemized list of the services provided by
wife's attorney; it is evident from the exhibit how much time was expended to pursue
discovery and file the motions to compel, as well as the hourly fee. "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." Dotts v. Schaefer, 5th Dist. Tuscarawas No. 2014 AP 06 0022, 2015-Ohio- Stark County, Case No. 2023CA00068 10
782, ¶ 17, citing Hawk v. Hawk, 5th Dist. Tuscarawas No. 2002AP040024, 2002-Ohio-
4384, ¶ 28.
{¶ 35} Wife incurred total attorney fees of $8,085; the trial court awarded her partial
fees in the amount of $5,000. Magistrate's Decision at 19. Husband had imputed income
of $97,000 and wife had income of $26,800. Husband received $5,536 more in net assets
than wife. Wife was adversely affected by husband's conduct, as she incurred attorney
fees, costs, and expenses in preparing motions to compel him to abide by court orders.
{¶ 36} Upon review, we find the trial court did not abuse its discretion in awarding
attorney fees to wife.
{¶ 37} Assignment of Error II is denied.
{¶ 38} In his third assignment of error, husband claims the trial court erred as to
the amount of child support and spousal support. We disagree.
{¶ 39} Husband argues the amounts of child support and spousal support are
based on his imputed income which he contests. In the first assignment of error, we found
the imputed income to be supported by the evidence.
{¶ 40} The trial court awarded child support in accordance with the child support
computation worksheet.
{¶ 41} The trial court awarded wife spousal support in the amount of $500 per
month for eighteen months on a four-year marriage, although the parties' oldest child was
born four years before the marriage. The magistrate went through the R.C. 3105.18
factors in its decision at 12-16. The magistrate noted the disparity in the parties' income
(husband/$97,000, wife/$26,800). The magistrate found husband left the marital Stark County, Case No. 2023CA00068 11
residence in August 2021 and did not support wife or the children since November 2021
except for $150. Husband's actions negatively affected wife's credit "and fees had to be
taken out of her Huntington account to cover deficiencies that left the joint account in the
negative." The magistrate also found wife had to take approximately $1,000 per month
from her mother to pay for the marital residence and living expenses due to husband's
lack of support after he left the residence. As noted above, husband did not file a financial
statement and his girlfriend pays all of his living expenses. While husband testified to his
financial difficulties, the magistrate found his testimony was not credible. The magistrate's
findings are supported in the record. T. at 24-25, 37-38, 53, 88, 101, 108.
{¶ 42} Husband challenges the fact that the trial court did not retain jurisdiction
over the spousal support award. But the award is for a definite duration of only eighteen
months. We do not find any abuse of discretion in not retaining jurisdiction.
{¶ 43} Upon review, we find the trial court did not abuse its discretion as to the
amount of child support and spousal support.
{¶ 44} Assignment of Error III is denied.
IV
{¶ 45} In his fourth assignment of error, husband claims the trial court erred in
finding him guilty of contempt and he failed to provide discovery. We disagree.
{¶ 46} In a civil contempt proceeding, the movant bears the initial burden of
demonstrating by clear and convincing evidence that the other party violated an order of
the court. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 (1980);
Accord Picciano v. Picciano, 5th Dist. Stark No. 2021 CA 00050, 2021-Ohio-4603, ¶ 74.
"Clear and convincing evidence" is that evidence "which will provide in the mind of the Stark County, Case No. 2023CA00068 12
trier of facts a firm belief or conviction as to the facts sought to be established." Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 47} Ample testimony was provided that husband did not file a financial
statement and did not produce discovery asked for by wife i.e., tax returns, credit union
statements, and credit card statements, even though ordered to comply by the trial court.
Judgment Entry filed September 22, 2022. Husband claimed he could not produce the
requested items because they had been stolen. Yet he could have sought bank/credit
card records directly from the institutions. T. at 30-31, 49-50, 86, 112-114; Plaintiff's
Exhibit 32 and 34.
{¶ 48} Evidence established husband failed to comply with the parties' April 4,
2022 agreed judgment entry wherein husband agreed to pay wife $400 per month for
child support. He incurred an arrearage of $3,850. T. at 24, 52.
{¶ 49} We find competent, credible clear and convincing evidence was presented
to find husband in contempt.
{¶ 50} Upon review, we find the trial court did not abuse its discretion in finding
husband guilty of contempt and he failed to provide discovery.
{¶ 51} Assignment of Error IV is denied.
{¶ 52} In his fifth assignment of error, husband claims the trial court erred in
admitting wife's exhibits without inquiring if husband's attorney had any objections. We
disagree.
{¶ 53} At the conclusion of the hearing, wife's counsel moved to admit her exhibits.
T. at 131. The magistrate asked husband's counsel if he had any exhibits. T. at 132. He Stark County, Case No. 2023CA00068 13
stated the only exhibit he had was a joint exhibit and wife's counsel stated the joint exhibit
was in her exhibit book. Id. The following exchange then occurred (Id.):
{¶ 54} [HUSBAND'S ATTORNEY]: I guess she has entered her exhibits?
{¶ 55} THE COURT: Um if you want to admit it [joint exhibit] I can take it. If not I
can just go on hers that's ah…
{¶ 56} [HUSBAND'S ATTORNEY]: Yeah that's fine Your Honor. Save some time.
{¶ 57} THE COURT: Okay. I just wanted to know what all we had out there that
you wanted admitted. Is there any Closing Statements?
{¶ 58} No further discussion was held on the exhibits.
{¶ 59} Although the better practice is to ask opposing counsel if there are any
objections to the exhibits before admitting them, husband's counsel was not precluded
from speaking up and objecting; he failed to do so. If there was an issue with admitting
any of the exhibits, the magistrate would have no way of knowing since nothing was
brought to her attention so she could address it.
{¶ 60} Upon review, we find the trial court did not abuse its discretion in admitting
wife's exhibits.
{¶ 61} Assignment of Error V is denied.
{¶ 62} In his sixth assignment of error, husband claims wife never testified as to
the grounds for jurisdiction and the proper venue. Stark County, Case No. 2023CA00068 14
{¶ 63} During oral argument, husband conceded jurisdiction and venue were
proper.
{¶ 64} Assignment of Error VI is denied.
{¶ 65} In his seventh assignment of error, husband claims the trial court erred in
ordering child support without ordering specific provisions for parenting time in violation
of R.C. 3119.08. We disagree.
{¶ 66} On the issue of parenting time, the magistrate found: "As Husband has gone
for months without seeing the children, including the parties' newborn baby, Husband
shall have visitation at the discretion of Wife." Magistrate's Decision at 8. Husband did
not file an objection on this issue in his March 21, 2023 objections.
{¶ 67} Issues not raised in objections shall not be assigned on appeal except for a
claim of plain error. Civ.R. 53(D)(3)(b)(iv). Civil plain error is defined in Goldfuss v.
Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus, as "error, to which no
objection was made at the trial court, seriously affects the basic fairness, integrity, or
public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself." Husband did not advance any arguments claiming plain
error in his appellate brief. "Appellant's failure to argue plain error at this juncture is fatal
as we are constrained to review the trial court's actions for plain error only and appellant
has failed to cite legal authority and develop an argument as to the existence of an
obvious defect in the proceedings that affected appellant's substantial rights." A.A. v.
F.A., 5th Dist. Delaware No. 18 CAF 10 0079, 2019-Ohio-1706, ¶ 22, citing State v.
Benitez-Maranon, 9th Dist. Summit No. 26461, 2014-Ohio-3575, ¶ 7. Stark County, Case No. 2023CA00068 15
{¶ 68} In our review of the record on the parenting time issue, we do not find it
contains any error that "seriously affects the basic fairness, integrity, or public reputation
of the judicial process, thereby challenging the legitimacy of the underlying judicial
process itself." Goldfuss, supra.
{¶ 69} Assignment of Error VII is denied.
{¶ 70} The judgment of the Court of Common Pleas of Stark County, Ohio, Family
Court Division, is hereby affirmed.
By King, J.
Hoffman, P.J. and
Baldwin, J. concur.