Greer v. Greer

2019 Ohio 4304

• Court: Ohio Court of Appeals
• Decided: October 21, 2019
• Docket: 18CA011407
• Status: Published

Opinion

[Cite as Greer v. Greer, 2019-Ohio-4304.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

EDWARD GREER C.A. No. 18CA011407

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE PAMELA M. GREER COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. NF-6120-84

DECISION AND JOURNAL ENTRY

Dated: October 21, 2019

CARR, Judge.

{¶1} Appellant Edward Greer appeals the judgment of the Lorain County Court of

Common Pleas, Domestic Relations Division, awarding Appellee Pamela Greer attorney fees.

This Court affirms.

I.

{¶2} The parties were divorced in 1984. The decree of dissolution incorporated a

separation agreement which provided that Mr. Greer would pay Ms. Greer child support. Ms.

Greer was awarded the marital residence. In order to compensate Mr. Greer for his share of the

equity in the residence, Ms. Greer was ordered to pay a total of $6,355.00 to Mr. Greer at a rate

of $100.00 per month via the Bureau of Support. No spousal support was awarded.

{¶3} The record reflects that orders authorizing the withholding of a portion of Ms.

Greer’s income were issued. In November 1989, the trial court issued an order stating that the

“support order” was paid and terminated Ms. Greer’s wage assignment. 2

{¶4} Over 30 years after the decree was journalized, in 2016, Mr. Greer filed a motion

to show cause as to why Ms. Greer should not be held in contempt for failing to pay Mr. Greer

the $6,355.00 ordered in the decree. Mr. Greer asserted in his affidavit that Ms. Greer failed to

pay the money and that a written demand for the money was served upon Ms. Greer but she,

nonetheless, did not pay the money owed.

{¶5} In February 2017, Mr. Greer filed a notice of voluntary dismissal pursuant to

Civ.R. 41(A)(1)(a) after he learned that he had been paid the money. In July 2017, Ms. Greer

filed a motion for attorney fees pursuant to R.C. 3105.73(B) based on the fees she incurred due

to Mr. Greer’s motion to show cause. In support of her motion, she submitted her own affidavit

asserting that she had paid Mr. Greer what he was owed and that her attorney obtained records

demonstrating that she had paid Mr. Greer. A hearing was held before a magistrate. The

magistrate issued a decision finding that Ms. Greer had paid the sums as ordered and concluding

that Mr. Greer’s conduct caused Ms. Greer to incur attorney fees. The magistrate determined

that Mr. Greer should pay Ms. Greer $1,090.00 towards her attorney fees. The trial court

adopted the decision the same day.

{¶6} Mr. Greer filed objections to the magistrate’s decision. The trial court held a

hearing on the objections and thereafter issued a judgment entry overruling the objections. The

trial court awarded Ms. Greer $1,090.00 in attorney fees.

{¶7} Mr. Greer has appealed raising three assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADOPTED THE FINDING OF THE MAGISTRATE THAT IT WAS EQUITABLE TO AWARD ATTORNEY FEES IN THE AMOUNT OF $1,090.00 TO THE APPELLEE PAMELA M. GREER. 3

ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED APPELLANT EDWARD B. GREER’S OBJECTIONS TO THE MAGISTRATE’S DECISION.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ABUSED ITS DISCRETION WHEN THE TRIAL COURT FOUND THAT IT WAS EQUITABLE TO AWARD ATTORNEY FEES IN THE AMOUNT OF $1,090.00 TO THE APPELLEE PAMELA M. GREER.

{¶8} Mr. Greer raises three assignments of error but has argued them all together in his

brief. Accordingly, we will also address them together. Mr. Greer argues that Ms. Greer should

not have been awarded attorney fees. Mr. Greer maintains that his conduct did not warrant the

award, that Ms. Greer was not in financial need of the fees, and that Ms. Greer failed to submit

any evidence of the reasonableness of the time spent on the matter by her counsel or her

counsel’s hourly rate.

{¶9} R.C. 3105.73(B) states:

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 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’ income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties’ assets.

{¶10} “Because R.C. 3105.73(B) gives a trial court broad discretion to award attorney’s

fees, we review such an award for an abuse of discretion.” J.M. v. L.M., 9th Dist. Lorain No.

17CA011126, 2018-Ohio-3417, ¶ 25, quoting Bajzer v. Bajzer, 9th Dist. Summit No. 25635,

2012-Ohio-252, ¶ 16.

{¶11} At the hearing, Ms. Greer testified that she paid the $6,355.00 ordered in the

decree. She stated that, for part of the time she would personally make the payments, and, for 4

part of the time the payments came out of her paycheck. She asserted that she paid the money by

November 1989. In support of her contention, she submitted a copy of the 1989 trial court entry

which stated the “support order” was paid and the wage assignment was terminated.

{¶12} Ms. Greer indicated that Mr. Greer did not contact her about the money until she

received a letter from Mr. Greer’s counsel in 2016. That letter informed Ms. Greer that Mr.

Greer had not received the $6,355.00 and if she did not pay it within 30 days, an action would be

filed against her. Ms. Greer read the letter and discarded the letter because she knew she had

already paid the money.

{¶13} After Ms. Greer received the motion to show cause, she contacted Mr. Greer’s

attorney who asked if she had proof of her payment. She said she did not but would look into it.

Ms. Greer then retained counsel in November 2016. Ms. Greer’s counsel’s fees were $200.00

per hour. Ms. Greer submitted documents evidencing the fees she was charged and what she

paid. In addition, Ms. Greer testified that she had already paid $500.00 and that she owed

$640.00. Ms. Greer also paid $100.00 in court costs to file the motion for fees.

{¶14} Mr. Greer acknowledged that the decree did not provide for any spousal support

and the only support that was to be paid was child support to Ms. Greer. Mr. Greer testified that

in 2016, he went to the child support enforcement agency to see whether Ms. Greer had paid him

the amount owed under the property division because he did not remember her doing so. Those

records indicated that Ms. Greer had paid $1,883.18 in what is labeled support. Despite having

evidence that Ms. Greer had in fact paid at least some money, Mr. Greer nonetheless sought to

hold Ms. Greer in contempt and alleged that she failed to pay any of the $6,355.00. Mr. Greer

admitted that he later learned he had in fact received the $6,355.00 and had “made a mistake.” 5

{¶15} With respect to their incomes, there was evidence submitted that, in 2016, Ms.

Greer made around $60,000.00 per year and Mr. Greer made around $21,000.00 per year. In

addition, in 2016, Mr. Greer received a tax refund of $1,195.00.

{¶16} After considering the record in this case, we cannot say that the trial court abused

its discretion in awarding Ms. Greer $1,090.00 towards her attorney fees. The trial court could

have reasonably concluded that Mr. Greer’s conduct caused Ms. Greer to incur attorney fees.

We cannot say that it is unreasonable for the trial court to require that a party seeking to hold

another party in contempt 30 years after a decree is filed must exercise due diligence in

determining whether money is actually owed to the party seeking a contempt finding. While Mr.

Greer did go to the child support enforcement agency to determine whether the sum had been

paid, he did not examine the docket in this case, which evidenced that Ms. Greer’s wage

withholding was terminated after the “support” order was paid. Even Mr. Greer’s own research,

prior to the filing of his contempt motion, revealed that Ms. Greer had paid almost $2,000.00.

Despite this, Mr. Greer nonetheless filed a motion to show cause seeking the entire amount

stated in the decree. Mr. Greer himself admitted at the hearing that he “made a mistake.” While

it is true the docket and child support enforcement agency records refer to “support” and not a

property division, Mr. Greer should have been aware that the decree did not require Ms. Greer to

make any support payments. Thus, at the least, this information should have caused Mr. Greer to

research further.

{¶17} While Mr. Greer faults Ms. Greer for not responding to the letter his attorney sent

to her prior to filing his motion to show cause, we note that the letter did not even request a

response. Instead, it stated that an action will be filed if payment is not received within 30 days.

Ms. Greer, however, had paid the money. 6

{¶18} Mr. Greer also alleges that Ms. Greer had to establish that she had a financial

need for the fees. While the prior statute, former R.C. 3105.18(H), included an ability to pay

requirement and required a determination as to whether either party would be prevented from

fully litigating his or her rights if fees were not awarded, see Berthelot v. Berthelot, 9th Dist.

Summit No. 22819, 2006-Ohio-1317, ¶ 70, the current statute, R.C. 3105.73(B) instead provides

that, “[i]n 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.” Thus, the trial court is not even mandated to consider the

parties’ incomes. See Davis v. Davis, 6th Dist. Wood No. WD-15-028, 2016-Ohio-1388, ¶ 25.

Moreover, we cannot say that, given the parties’ respective incomes, that the trial court’s award

was inequitable.

{¶19} Finally, Mr. Greer argues that there was no evidence of the reasonableness of the

fees, the time spent, or the hourly rate. He notes that no expert testified to support the

reasonableness of the fees.

{¶20} The trial court, in the entry ruling on the objections, stated that “the hourly

rate/fee charged to [Ms. Greer] appears similar to fees customarily charged within this locality

(Lorain County) for similar legal services.” The trial court also observed that the local rules did

not mandate expert testimony and concluded it was “equitable and reasonable as evidenced by

the record to calculate an award of attorney fees based on the rate of $200.00 per hour and the

amount of documented work performed by [Ms. Greer’s] counsel. The trial court ultimately

found that “the time spent on the matter * * * and the hourly rate charged * * * was fair and

reasonable * * *.” 7

{¶21} While this Court has not directly addressed whether expert testimony is required

in situations involving attorney fees under R.C. 3105.73, we have applied a Summit County

Domestic Relations Local Rule which specifically states that expert testimony is not required to

establish the reasonableness of attorney fees. See Kolar v. Kolar, 9th Dist. Summit No. 28510,

2018-Ohio-2559, ¶ 5. Other courts have concluded that a trial court is not required to receive

expert testimony in order to award attorney fees under R.C. 3105.73. Long v. Long, 10th Dist.

Franklin No. 11AP-510, 2012-Ohio-6254, ¶ 20. Instead, the trial court “may rely on its own

knowledge and experience to determine the reasonableness of the amount claimed.” Id. “This

standard has been applied by the overwhelming majority of appellate districts in the State of

Ohio in domestic relations matters.” Pelger v. Pelger, 3d Dist. Logan No. 8-18-36, 2019-Ohio-

1280, ¶ 20, fn. 3.

{¶22} Given the record before us, including the evidence presented and the amount of

fees awarded, we conclude that the trial court did not abuse its discretion in concluding that

expert testimony was not required. Moreover, the trial court did not abuse its discretion in

determining that both the time spent on the matter and the hourly rate were fair and reasonable.

{¶23} Mr. Greer’s assignments of error are overruled.

III.

{¶24} Mr. Greer’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas, Domestic Relations Division is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 8

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

TEODOSIO, P. J. CONCURS.

HENSAL, J. CONCURRING IN JUDGMENT ONLY.

{¶25} I would find that the trial court did not abuse its discretion in awarding Ms. Greer

attorney’s fees based upon the conduct of Mr. Greer. I would note that this court has allowed for

the finding of reasonable attorney fees without expert testimony in domestic relations court

proceedings without the reliance on the local rule. See Kreger v. Kreger, 9th Dist. Lorain No.

91CA005073, 1991 WL 262883, *2 (Dec. 11, 1991); Payne v. Payne, 9th Dist. Summit No.

14248, 1989 WL 157213, *3 (Dec. 27, 1989); Cram v. Cram, 9th Dist. Medina No. 1746, 1989 9

WL 50705, *3 (May 10, 1989). As such, I concur with the decision to affirm the trial court’s

award of fees.

APPEARANCES:

MARK E. STEPHENSON, Attorney at Law, for Appellant.

WAYNE R. NICOL, Attorney at Law, for Appellee.