[Cite as Lehman v. Lehman, 2013-Ohio-3622.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
JANIE J. LEHMAN : JUDGES: : : Hon. W. Scott Gwin, P.J. Petitioner - Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. : -vs- : : DAVID M. LEHMAN : Case No. 13-CA-2 : : Petitioner - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 1998 DS 98
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID K. GREER LEE S. ROSENTHAL 1150 Morse Road, Suite 230 Goldman & Rosenthal Columbus, OH 43229 2 Easton Oval, Suite 180 Columbus, OH 43219 Fairfield County, Case No. 13-CA-2 2
Baldwin, J.
{¶1} Appellant David M. Lehman appeals a judgment of the Fairfield County
Common Pleas Court, Domestic Relations Division, rendering an amount due on his
obligation to pay one-half of the college expenses for the parties’ two children and
ordering him to pay one-half of the amounts paid by appellee Janie J. Lehman toward
ongoing student loan payments.
STATEMENT OF FACTS AND CASE
{¶2} Appellant and appellee were married in August of 1991. Two sons were
born to the parties, R.L. (born in 1982) and K.L. (born in 1984). In May of 1998, the
parties filed a petition for dissolution of their marriage in the Fairfield County Court of
Common Pleas, Domestic Relations Division. The court issued a decree of dissolution
on June 10, 1998.
{¶3} The dissolution decree incorporated the parties’ separation agreement,
Article II(g), which provided for splitting the cost of the sons' post-high school education.
Said article reads in pertinent part:
{¶4} “Husband shall pay and be responsible for and Husband shall hold the
Wife and children safe and harmless with regard to one-half of the college education or
continuing education expenses of the children after high school, including colleges,
trade schools, and other such educational facilities, and said obligation of the Husband
shall include one-half of tuition, book expenses, room and board expenses, and other
such expenses. * * * Husband’s obligations under this paragraph shall terminated (sic)
at the time each child reaches the age of twenty-four.” Fairfield County, Case No. 13-CA-2 3
{¶5} A separate provision of the separation agreement, Article II(h), provided
for splitting the cost of general expenses of the sons, such as, car insurance, car repair,
car payments, extracurricular activities, music expenses, tutoring, and “other similar
expenses.”
{¶6} In 2004 and 2005, appellee filed two contempt motions against appellant,
alleging non-compliance with the aforesaid provisions. On August 1, 2005, the trial court
rendered a contempt finding against appellant and imposed a 30-day jail term, subject
to being purged by appellant paying $100 per month toward an established liquidated
amount of $3,200 to cover all past expenses, plus $1,000 in attorney fees.
{¶7} Appellee was further ordered in the August 1, 2005 judgment entry to
establish a checking account at Lanfair Federal Credit Union as a designated college
expense account for the monthly payments, and to provide appellant with deposit slips.
The entry also provided that appellant would be responsible for one-half of the deferred
loans.
{¶8} Appellee thereafter filed motions to impose the jail sentence. Appellant
responded by filing a motion to vacate the August 1, 2005 judgment entry which had
found him in contempt and ordered the establishment of the Lanfair escrow account.
These motions were resolved by an agreed judgment entry on April 16, 2007, which,
among other things, (1) acknowledged a $4,000 payment to appellee by appellant and
declared him “current on all ongoing monthly expenses” concerning R.L. and K.L.
through March 31, 2007; (2) vacated the 2005 contempt entry; and (3) provided for
appellant to thereafter pay $344.31 per month, via deposits into the Lanfair college
expense account. Fairfield County, Case No. 13-CA-2 4
{¶9} On December 9, 2008, appellee filed a new contempt motion. Appellee
alleged that appellant had stopped making payments on this new monthly obligation in
March of 2008, and that he had failed to pay one-half of the education expenses per the
dissolution decree and the April 16, 2007 judgment entry. The motion sought restitution
for payments appellee made to keep R.L.'s “Nelnet” student loan current, "and any other
loans for which she has paid as [appellant’s] share", as well as her attorney fees in
prosecution of the motion. Appellant responded with his own motion on October 22,
2010, "for an order that he has met his obligation to pay expenses."
{¶10} The contempt motion proceeded to an evidentiary hearing on January 20
and 21, 2011. Both appellant and appellee took the stand. The trial court issued a
preliminary judgment entry on April 19, 2011, in which it stated: “From the evidence
offered, the court finds it most difficult to determine what 50% of the total college
expense really is.” Id. at 2. The court thus ordered the parties to submit post-trial
worksheets and supporting documents by May 12, 2011. Accordingly, both parties
submitted worksheets and supporting documentation to the court.
{¶11} The trial court issued its final judgment entry on July 1, 2011. The court
dismissed all contempt matters against appellant, but ordered him to pay appellant the
amount of $4,502.99 (one-half of $9005.97) at the rate of $300.00 per month. Appellee
filed an appeal from this judgment.
{¶12} On appeal, we reversed and remanded, finding that the court failed to
properly calculate the arrearage. Lehman v. Lehman, 5th Dist. Fairfield No. 11-CA-43,
2012-Ohio-2082. In footnote two, this Court stated in pertinent part: Fairfield County, Case No. 13-CA-2 5
{¶13} “In the alternative, appellant proposes that we simply require appellee to
pay one-half of the total claimed student loan balances due of $73,242.48. However,
such a remedy is premature until appellant actually pays toward such amount;
furthermore, she made no such request in her motion for contempt and arrearages.” Id.
{¶14} On remand, the trial court found the amount of the arrearage to be
$9,049.24, which he ordered appellant to reimburse to appellee at the rate of $200.00
per month. The court’s judgment of December 5, 2012, also states in pertinent part,
“The question before the Court concerns footnote number two at the bottom of the last
page of the Court of Appeals Opinion. The footnote suggests that it is premature to
require the Appellee/Petitioner-Husband to pay one-half of the total claims because the
Appellant/Petitioner-Wife had not paid those sums yet. * * * With respect to Petitioner-
wife’s ongoing loan payments to these loan providers in the future, Petitioner-Husband
is hereby ordered to reimburse Petitioner-Wife, in addition to the $200.00 per month
previously stated, one-half of the amounts paid toward these loans within seven (7)
days, upon Petitioner-Wife’s presentation of proof of payment to these loan providers. *
* * Failure to comply, or untimely compliance, with any of these orders constitutes prima
facie grounds for a motion for contempt of this Court.”
{¶15} Appellant assigns a single error to this Court on appeal:
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[Cite as Lehman v. Lehman, 2013-Ohio-3622.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
JANIE J. LEHMAN : JUDGES: : : Hon. W. Scott Gwin, P.J. Petitioner - Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. : -vs- : : DAVID M. LEHMAN : Case No. 13-CA-2 : : Petitioner - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Domestic Relations Division, Case No. 1998 DS 98
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID K. GREER LEE S. ROSENTHAL 1150 Morse Road, Suite 230 Goldman & Rosenthal Columbus, OH 43229 2 Easton Oval, Suite 180 Columbus, OH 43219 Fairfield County, Case No. 13-CA-2 2
Baldwin, J.
{¶1} Appellant David M. Lehman appeals a judgment of the Fairfield County
Common Pleas Court, Domestic Relations Division, rendering an amount due on his
obligation to pay one-half of the college expenses for the parties’ two children and
ordering him to pay one-half of the amounts paid by appellee Janie J. Lehman toward
ongoing student loan payments.
STATEMENT OF FACTS AND CASE
{¶2} Appellant and appellee were married in August of 1991. Two sons were
born to the parties, R.L. (born in 1982) and K.L. (born in 1984). In May of 1998, the
parties filed a petition for dissolution of their marriage in the Fairfield County Court of
Common Pleas, Domestic Relations Division. The court issued a decree of dissolution
on June 10, 1998.
{¶3} The dissolution decree incorporated the parties’ separation agreement,
Article II(g), which provided for splitting the cost of the sons' post-high school education.
Said article reads in pertinent part:
{¶4} “Husband shall pay and be responsible for and Husband shall hold the
Wife and children safe and harmless with regard to one-half of the college education or
continuing education expenses of the children after high school, including colleges,
trade schools, and other such educational facilities, and said obligation of the Husband
shall include one-half of tuition, book expenses, room and board expenses, and other
such expenses. * * * Husband’s obligations under this paragraph shall terminated (sic)
at the time each child reaches the age of twenty-four.” Fairfield County, Case No. 13-CA-2 3
{¶5} A separate provision of the separation agreement, Article II(h), provided
for splitting the cost of general expenses of the sons, such as, car insurance, car repair,
car payments, extracurricular activities, music expenses, tutoring, and “other similar
expenses.”
{¶6} In 2004 and 2005, appellee filed two contempt motions against appellant,
alleging non-compliance with the aforesaid provisions. On August 1, 2005, the trial court
rendered a contempt finding against appellant and imposed a 30-day jail term, subject
to being purged by appellant paying $100 per month toward an established liquidated
amount of $3,200 to cover all past expenses, plus $1,000 in attorney fees.
{¶7} Appellee was further ordered in the August 1, 2005 judgment entry to
establish a checking account at Lanfair Federal Credit Union as a designated college
expense account for the monthly payments, and to provide appellant with deposit slips.
The entry also provided that appellant would be responsible for one-half of the deferred
loans.
{¶8} Appellee thereafter filed motions to impose the jail sentence. Appellant
responded by filing a motion to vacate the August 1, 2005 judgment entry which had
found him in contempt and ordered the establishment of the Lanfair escrow account.
These motions were resolved by an agreed judgment entry on April 16, 2007, which,
among other things, (1) acknowledged a $4,000 payment to appellee by appellant and
declared him “current on all ongoing monthly expenses” concerning R.L. and K.L.
through March 31, 2007; (2) vacated the 2005 contempt entry; and (3) provided for
appellant to thereafter pay $344.31 per month, via deposits into the Lanfair college
expense account. Fairfield County, Case No. 13-CA-2 4
{¶9} On December 9, 2008, appellee filed a new contempt motion. Appellee
alleged that appellant had stopped making payments on this new monthly obligation in
March of 2008, and that he had failed to pay one-half of the education expenses per the
dissolution decree and the April 16, 2007 judgment entry. The motion sought restitution
for payments appellee made to keep R.L.'s “Nelnet” student loan current, "and any other
loans for which she has paid as [appellant’s] share", as well as her attorney fees in
prosecution of the motion. Appellant responded with his own motion on October 22,
2010, "for an order that he has met his obligation to pay expenses."
{¶10} The contempt motion proceeded to an evidentiary hearing on January 20
and 21, 2011. Both appellant and appellee took the stand. The trial court issued a
preliminary judgment entry on April 19, 2011, in which it stated: “From the evidence
offered, the court finds it most difficult to determine what 50% of the total college
expense really is.” Id. at 2. The court thus ordered the parties to submit post-trial
worksheets and supporting documents by May 12, 2011. Accordingly, both parties
submitted worksheets and supporting documentation to the court.
{¶11} The trial court issued its final judgment entry on July 1, 2011. The court
dismissed all contempt matters against appellant, but ordered him to pay appellant the
amount of $4,502.99 (one-half of $9005.97) at the rate of $300.00 per month. Appellee
filed an appeal from this judgment.
{¶12} On appeal, we reversed and remanded, finding that the court failed to
properly calculate the arrearage. Lehman v. Lehman, 5th Dist. Fairfield No. 11-CA-43,
2012-Ohio-2082. In footnote two, this Court stated in pertinent part: Fairfield County, Case No. 13-CA-2 5
{¶13} “In the alternative, appellant proposes that we simply require appellee to
pay one-half of the total claimed student loan balances due of $73,242.48. However,
such a remedy is premature until appellant actually pays toward such amount;
furthermore, she made no such request in her motion for contempt and arrearages.” Id.
{¶14} On remand, the trial court found the amount of the arrearage to be
$9,049.24, which he ordered appellant to reimburse to appellee at the rate of $200.00
per month. The court’s judgment of December 5, 2012, also states in pertinent part,
“The question before the Court concerns footnote number two at the bottom of the last
page of the Court of Appeals Opinion. The footnote suggests that it is premature to
require the Appellee/Petitioner-Husband to pay one-half of the total claims because the
Appellant/Petitioner-Wife had not paid those sums yet. * * * With respect to Petitioner-
wife’s ongoing loan payments to these loan providers in the future, Petitioner-Husband
is hereby ordered to reimburse Petitioner-Wife, in addition to the $200.00 per month
previously stated, one-half of the amounts paid toward these loans within seven (7)
days, upon Petitioner-Wife’s presentation of proof of payment to these loan providers. *
* * Failure to comply, or untimely compliance, with any of these orders constitutes prima
facie grounds for a motion for contempt of this Court.”
{¶15} Appellant assigns a single error to this Court on appeal:
{¶16} “THE TRIAL COURT COMMITTED ERROR WHEN IT ORDERED
APPELLANT-HUSBAND TO PAY ONE–HALF (1/2) OF THE AMOUNTS PAID BY
APPELLEE-WIFE TOWARD THE ONGOING LOAN PAYMENTS.”
{¶17} Appellant does not contest the trial court’s calculation of the arrearage on
remand. However, appellant argues that the court exceeded the scope of this court’s Fairfield County, Case No. 13-CA-2 6
remand by ordering appellant to pay one-half of all amounts paid by appellee toward
ongoing loan payments.
{¶18} The Ohio Supreme Court explained the law-of-the-case doctrine in Nolan
v. Nolan, 11 Ohio St.3d 1, 3-4, 462 N.E.2d 410 (1984):
{¶19} “[T]he doctrine provides that the decision of a reviewing court in a case
remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels. * * * [T]he doctrine
functions to compel trial courts to follow the mandates of reviewing courts. * * * Thus,
where at a rehearing following remand a trial court is confronted with substantially the
same facts and issues as were involved in the prior appeal, the court is bound to adhere
to the appellate court's determination of the applicable law. (Citations omitted).”
{¶20} The Nolan court concluded that the trial court had exceeded the scope of
a remand when it reworked the financial aspects of the marital home disposition, as it
was clear from the appellate court’s opinion that the sole basis for the remand was
occupancy of the marital home. Id. at 4, 462 N.E.2d 410. Ohio courts have followed
Nolan and found prejudicial error when the trial court exceeded the scope of a remand
from the appellate court. Hawley v. Ritley, 35 Ohio St.3d 157, 160, 519 N.E.2d 390
(1983); Graham v. Graham, 98 Ohio App.3d 396, 400-402, 648 N.E.2d 850 (1994);
State ex rel. TRW, Inc. v. Jaffe, 78 Ohio App.3d 411, 415, 604 N.E.2d 1376 (1992).
{¶21} In the instant case, we remanded solely on the issue of calculation of the
arrearage. The language in footnote two was not tantamount to a remand for the court
to enter an order that appellant pay for ongoing loan payment. The footnote was simply Fairfield County, Case No. 13-CA-2 7
an explanation as to why we would not consider appellee’s request for such an order in
the procedural posture of the case in the first appeal.
{¶22} The assignment of error is sustained. The judgment of the Fairfield
County Common Pleas Court, Domestic Relations Division, is affirmed as to the
calculation of the arrearage, and reversed as to the order that appellant pay one-half of
ongoing loan payments to appellee. This cause is remanded to that court for further
proceedings according to law and consistent with this opinion. Costs assessed to
appellee.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
CRB/rad [Cite as Lehman v. Lehman, 2013-Ohio-3622.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JANIE J. LEHMAN : : Petitioner -Appellee : : -vs- : JUDGMENT ENTRY : DAVID M. LEHMAN : : Petitioner - Appellant : CASE NO. 13-CA-2
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed as to the
calculation of the arrearage, and reversed as to the order that appellant pay one-half of
ongoing loan payments to appellee. This cause is remanded to that court for further
proceedings according to law and consistent with this opinion. Costs assessed to