[Cite as Lepowsky v. Lepowsky, 2010-Ohio-1544.] STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ELAINE LEPOWSKY ) CASE NOS. 08 CO 10 ) 08 CO 29 PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) CHARLES LEPOWSKY, JR. ) ) DEFENDANT-APPELLEE )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2002DR578
JUDGMENT: Affirmed in Part. Overruled in Part. Modified. Remanded.
APPEARANCES:
For Plaintiff-Appellant: Atty. Anne S. Magyaros 1188 Bell Road, Suite 105 Chagrin Falls, Ohio 44022
For Defendant-Appellee: Atty. Douglas A. King Hartford, Dickey & King Co., LPA 91 West Taggart Street P.O. Box 85 East Palestine, Ohio 44413
JUDGES:
Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro
Dated: March 31, 2010
WAITE, J. -2-
{¶1} Appellant, Elaine Lepowsky, appeals two separate decisions and
judgment entries of the Columbiana County Court of Common Pleas in this
consolidated appeal. Elaine challenges the trial court’s amended spousal support
award and the denial of her motion for attorneys’ fees and expenses. She also
appeals the denial of her subsequent motion to modify the amended spousal support
award.
{¶2} Because the trial court abused its discretion when amending the
spousal support award, we reverse the trial court’s determination and modify the
amount of the original spousal support award to $3,000 (plus a 2% administrative
fee), to be applied retroactively to the date of the divorce decree and to continue for
an unlimited duration, and order the trial court to calculate the arrearage and set a
monthly arrearage payment in accordance with R.C. 3123.21. Because the trial court
abused its discretion in part when it denied Elaine’s motion for appellate attorneys’
fees, we award attorneys’ fees in the amount of $6,889.19.
{¶3} Because we recognize that modification of trial court awards, while
authorized, is rare, we will discuss the history of this matter in some detail. This case
has had an unnecessarily long and tortured procedural past. The trial court issued a
divorce decree to the parties on July 12, 2004. At the time, the parties had been
married for 36 years. While Appellee, Charles Lepowsky, Jr., had maintained a
steady and good paying job, Elaine was a homemaker. As regards spousal support,
at the time of the divorce decree, Elaine was awarded support in the amount of -3-
$1,000.00 (plus a 2% administrative fee) for eighty-two months, and Charles was
ordered to pay Elaine’s COBRA premiums for twenty-four months. (7/12/04 J.E., pp.
10-11.) The trial court stated in the divorce decree that it would not retain jurisdiction
to modify the award. (7/12/04 J.E., p. 10.)
{¶4} The spousal support award was directly predicated on the trial court’s
assumption that Elaine would complete medical transcriptionist course work, which
she began after the parties separated, and the speculation that she would then
secure a full time position paying $8 to $10 per hour with medical insurance benefits.
(7/12/04 J.E., p. 9.)
{¶5} Elaine timely appealed the July 12, 2004 judgment entry, challenging
the trial court’s decision with respect to the division of marital property and the
amount and duration of spousal support. In an Opinion dated February 9, 2006, we
found no abuse of discretion with respect to the division of marital property. We did
reverse and remand the trial court’s determination as to spousal support specifically
to allow the trial court to, “indicate the basis for its award of spousal support in
sufficient detail to enable a reviewing court to determine whether the award is fair,
equitable and in accordance with the law.” Lepowsky v. Lepowsky, 7th Dist. No. 04
CO 42, 2006-Ohio-667, ¶4 (“Lepowsky I”).
{¶6} Before remand, in Lepowsky I, we summarized the parties’ earning
histories and future earning abilities as follows: -4-
{¶7} “Elaine and Charles were married in 1968. The couple had four
children, who were all adults by the time Elaine filed her complaint for divorce in
September 2002. At the time of the divorce, Elaine was 55 and Charles was 54.
{¶8} “Elaine has little more than a high school education and was primarily a
homemaker during the couple’s marriage. She obtained a beautician’s license at one
time, but that license lapsed by the time she filed for divorce. At the time she filed for
divorce, she was earning some extra money by cleaning houses. While the case
was pending, Elaine took classes so she could be a medical transcriptionist, at which
she would make between eight and ten dollars per hour. Those classes were not
complete at the time of the final divorce hearing.
{¶9} “During the marriage, Charles worked for General Motors. Between
1999 and 2003, he never earned less than $83,900.00 and was projected to earn
around $101,000.00 in 2004.” Id. at ¶5-7.
{¶10} In reversing and remanding on the issue of spousal support, we
cautioned the trial court that it would be hard-pressed to demonstrate the equity of its
award based on the facts in the record:
{¶11} “Even if the trial court imputed income of $10.00 per hour to Elaine and
assumed that she worked forty hours per week, fifty-two weeks per year, then her
gross income would only be $20,800.00. Thus, after the trial court’s spousal support
award, Charles would earn approximately $88,760.00 per year, while Elaine would
only have about $33,040.00 per year. This is a fairly large discrepancy, especially
considering the length of the marriage and the disparity in future social security -5-
benefits. This discrepancy would be large even if the trial court had doubled the
spousal support award. In that case, Elaine would have about $45,280.00 per year,
while Charles would retain about $76,520.00.” (Emphasis added). Id. at ¶53.
{¶12} On remand, the trial court issued a terse three-page judgment entry
stating that the spousal support award was intended to provide supplemental income
to Elaine until she reached retirement. With fleeting reference to the statutory factors
listed in R.C. 3105.18, but no actual analysis of those factors, the trial court
concluded that Elaine “could enjoy a good standard of living” based upon her
(speculative) potential future income and the $1,000.00 per month in spousal
support. (4/27/06 J.E., p. 3.) Elaine appealed the amount and duration of the
spousal support award for a second time on May 3, 2006, and also appealed, for the
first time, the trial court’s decision not to retain jurisdiction over the spousal support
{¶13} In an Opinion dated September 17, 2007, we reversed the trial court’s
decision as to spousal support for a second time. Because the trial court’s second
entry, on remand, fell far short of providing the necessary findings sought by this
Court, in our September, 2007 Opinion, we undertook a lengthy and detailed analysis
of the factors listed in R.C. 3105.18. Lepowsky v. Lepowsky, 7th Dist. No. 06 CO 23,
2007-Ohio-4994 (“Lepowsky II”). We succinctly observed that “most, if not all” of the
factors enumerated in the spousal support statute favored Elaine. Id. at ¶44.
{¶14} Further, while we acknowledged that, “[e]qualization of income is not a
factor that must be considered or a goal in divorce cases,” we also recognized that, -6-
“the award must nonetheless be equitable in light of the factors in each case.”
(Internal citations omitted.) Id. at ¶43. “To be equitable, the parties should, if
feasible, enjoy a standard of living comparable to that enjoyed during the marriage,
adjusted by the factors set forth in R.C. 3105.18.” Id., citing Gallo v. Gallo, 11th Dist.
No.2000-L-208, 2002-Ohio-2815, at ¶40; Buckles v. Buckles (1988), 46 Ohio App.3d
102, 110, 546 N.E.2d 950.
{¶15} After examining all of the relevant statutory factors, we reviewed
several cases from other districts involving marriages exceeding twenty years in
duration where the wife’s primary role was homemaking. In each of the cases, the
trial court awarded indefinite spousal support based upon the length of the marriage,
the age of the parties, and inability of the wife to develop the skills to attain
meaningful employment. Id. at ¶45-57.
{¶16} We ultimately concluded that the trial court’s assumptions about
Elaine’s future income were too speculative and were not supported by the record.
Id. at ¶59. In fact, we observed that the record actually established that Elaine
earned less than $5,000 per year cleaning houses at the time of trial. Id. at ¶60.
{¶17} We reiterated as we did in Lepowsky I, that, “[e]ven with the speculative
imputed income and the trial court’s award, the parties still have a great disparity in
income. Charles will earn about $88,760 after support payments and before taxes,
and Elaine will receive $12,240 per year in support plus her imputed income for a
total of about $33,040 per year after support and before taxes.” Id. at ¶82. -7-
{¶18} In our Opinion we recognized that, despite the trial court’s statement
that the spousal support award would provide an additional “safety net” to Elaine’s
retirement years, the payments as ordered would actually terminate when she was
62 years old, forcing her to take a permanently reduced rate of benefits. Id. at ¶64.
Thus, the consideration of the parties’ retirement benefits favored an increase in the
duration of the award. Id. at ¶63. Finally, we noted the fact that during the marriage
the Lepowskys enjoyed an upper-middle class lifestyle, which included a nice home,
nice clothes, new cars, and antiques. Id. at ¶15-16.
{¶19} Based on the length of the marriage and standard of living to which the
parties were accustomed and their relative earning capabilities, we held that the trial
court had abused its discretion in calculating both the amount and duration of
spousal support, and that a “longer, probably indefinite” spousal support award was
in order. Id. at ¶83. Additionally, after reviewing several other cases, we held that
the trial court should have retained jurisdiction over the spousal support award due to
the speculative nature of Elaine’s future income. Id. at ¶93.
{¶20} We specifically held that, “[o]n remand, the trial court should increase
its award in both amount and duration and attempt to allow Elaine to maintain a
standard of living that was established during the parties’ long marriage. The court
should also retain jurisdiction over the spousal support award.” (Emphasis added.)
Id. at ¶94.
{¶21} After the case was remanded to the trial court, on December 4, 2007,
Elaine filed a motion for attorney fees and expenses. Specifically, Elaine sought to -8-
enforce a provision of the divorce decree that required Charles to pay for the
preparation of Qualified Domestic Relations Orders (“QDROs”), to be reimbursed for
the trial transcripts that were prepared for the appeal in Lepowsky II, and for
attorneys fees incurred, “in pursuing the two appeals filed in connection with this
matter, and in attempting to gain [Charles’] compliance with the payment of
previously awarded expenses.” (12/4/07 Motion, p. 2.)
{¶22} With respect to the QDROs, Elaine submitted a detailed list of
expenses that included a $900.00 bill for the preparation of the QDROs from Pension
Evaluators (which included a $200 charge for expedited service) as well as charges
for copying, postage, and Federal Express fees. Elaine also sought $781.65 in
attorneys’ fees for time that her attorney spent compiling and providing information to
Pension Evaluators.
{¶23} After Elaine filed the motion, Charles forwarded $700 to Elaine. He
argued to the trial court that the charge for expedited service should be borne by
Elaine, because it was her counsel’s procrastination that created the need for
expedited service. Elaine’s counsel conceded that fact to this Court at oral argument.
Charles also argued that the divorce decree only required that he pay the bill from
Pension Evaluators, and did not contemplate that he reimburse Elaine for any fees
generated by her attorney during the preparation of the QDROs.
{¶24} With respect to the remainder of Elaine’s claims, Charles argued that
this Court had exclusive jurisdiction over costs awarded pursuant to App.R. 24(B). -9-
He also accused Elaine’s counsel of double-billing and failing to demonstrate that the
attorneys’ fees were reasonable.
{¶25} On February 1, 2008, the trial court retroactively increased the spousal
support award from $1,000 to $1,500 per month (with a 2% administrative fee), but
did not increase the duration of the award. According to the judgment entry, the
$21,000 arrearage, which had accumulated from August 1, 2004, to the date of the
February 1, 2008, judgment entry, was to be paid in monthly installments of $200
(with a 2% administrative fee).
{¶26} The trial court also summarily denied Elaine’s motion for attorneys’ fees
and expenses. The trial court stated that, “[t]here has been no evidence or affidavit
presented to the Court from someone other than Plaintiff’s counsel that such fees
and expenses are reasonable and it further appears to the Court the fees were
generated by appeals which Plaintiff decided to file. Both parties have incurred fees
and expenses in connection with the multiple appeals.” (Emphasis added.) (2/1/08
J.E., p. 7.)
{¶27} In addition to modestly increasing (with no analysis) the amount of the
spousal support award and denying the motion for attorneys’ fees and expenses, the
trial court made several pointed comments regarding our decision in Lepowsky II in
its February 1, 2008, judgment entry. The trial court began the entry by stating that it
found itself, “in the unenviable position of being directed by the Court of Appeals to
set an increased amount of spousal support based on the Appellate Court’s analysis
of the statutory factors which a trial court is to consider in awarding spousal support.” -10-
(2/1/08 J.E., p. 2.) The trial court also hastened to chide, not once but twice, that in
Lepowsky I we made no mention of the trial court’s decision not to retain jurisdiction
over the spousal support award. (2/1/08 J.E., pp. 2, 4.)
{¶28} Finally, the trial court inexplicably stated: “Rather than to make the
award on the same record which the trial court had before him, the Appellate Court
chose to remand the matter directing this Court to set a new amount based upon
their analysis of the statutory factors.” (2/1/08 J.E., p. 4.) Elaine appealed the
spousal support award for a third time on February 22, 2008.
{¶29} Prior to filing this third appeal, Elaine also filed a motion to modify
spousal support on February 8, 2008. At the hearing on the motion to modify, Elaine
testified that she had completed medical transcription training with the help of several
classmates, but had been unable to find a full-time position in the field. (5/14/08 Tr.,
p. 43.) She struggled through her classes and conceded that she did not have the
confidence required to perform the job. (5/14/08 Tr., p. 82.) She further testified that
she was reluctant to give up her regularly-scheduled cleaning jobs in order to accept
part time work as a transcriptionist. (5/14/08 Tr., pp. 67-68, 83, 93.)
{¶30} She currently charges $12 per hour for house cleaning and typically
works thirty hours a week. (5/14/08 Tr., pp. 64-65.) She accepted a part time job at
Rite Aid in 2007 but left after working approximately three months because she was
overwhelmed by the pressure. (5/14/08 Tr., p. 47.) She had applied for other jobs
but was always offered part time employment making $7.00 to $7.50 an hour. -11-
(5/14/08 Tr., p. 65.) Elaine was 58 years old on the date of the hearing. (5/14/08 Tr.,
p. 47.)
{¶31} In 2007, Elaine had business income of $9,588, coupled with $1,673 of
income from Rite Aid. (5/14/08 Tr., p. 44.) She twice attempted to acquire health
insurance after her COBRA coverage terminated, but she was rejected on both
occasions. (5/14/08 Tr., p. 48.) She currently suffers from osteopenia (lower than
normal peak bone mineral density), carpal tunnel syndrome, and osteoarthritis, but
was unable to afford routine medical exams in 2007. (5/14/08 Tr., pp. 48-50.)
{¶32} Due to her meager income, she has been forced to give up her land line
telephone, her internet service, and her dog. (5/14/08 Tr., pp. 51, 75.) Her
automobile is seven years old and her residence, which she purchased with the
proceeds of her divorce settlement, is in need of new siding and basement
waterproofing. (5/14/08 Tr., p. 61.)
{¶33} Charles testified that his gross income in 2006 was $105,818.61, and
$111,821.13 in 2007. (5/14/08 Tr., pp. 18-19.) A paystub from April of 2008
indicated that Charles received a weekly net pay of $955.19, for a fifty-five hour work
week.
{¶34} However, Charles testified that overtime at General Motors was “drying
up” based upon cost cutting efforts like outsourcing of work. (5/14/08 Tr., p. 22.) He
submitted a pay stub from May of 2008, which reflected a weekly net pay of $380.18
for a forty hour work week. (5/14/08 Tr., p. 34.) Charles currently pays -12-
approximately $400 per week in spousal support, which includes the $200 arrearage.
(5/14/08 Tr., p. 23.)
{¶35} Charles has a $77,000 mortgage in the form of a home equity loan on
his residence, for which he makes payments between $500 and $700 a month.
(5/14/08 Tr., p. 24.) He makes monthly car payments totaling $700 per month for two
vehicles, although he actually owns three vehicles. (5/14/08 Tr., p. 24.) He testified
that two of the vehicles have “blown motors.” (5/14/08 Tr., pp. 31-32.)
{¶36} According to his testimony, the loan for the 2002 GMC conversion van,
which is the only vehicle that operates, would be satisfied approximately four months
after the hearing, which would reduce his car payments by $279 per month. (5/14/08
Tr., p. 38.) The auto loans appear to be automatically withdrawn from his paycheck,
and must be added back into his net pay for the purpose of calculating his ability to
pay his monthly expenses. (Pl.’s Exh. 11, Def.’s Exh. A, attached to 5/14/08 hearing
transcript.)
{¶37} Charles stated that he supports his live-in girlfriend, who was recently
diagnosed with epilepsy and cannot work. (5/14/08 Tr., p. 37.) He insures her car, in
addition to insuring his own vehicles. (5/14/08 Tr., p. 38.) He spends $700 per
month on food. (5/14/08 Tr., p. 37.) Although he testified that his girlfriend would be
receiving food stamps in the near future, he was unwilling to project any reduction in
his monthly food expense because, “she doesn’t eat a lot.” (5/14/08 Tr., pp. 36-37.) -13-
{¶38} Charles went on three golfing trips in 2007, and, as of the May 14, 2008
hearing, had gone on one trip in 2008. He pays monthly dues in the amount of $130
to Salem Hills Golf and Country Club. (5/14/08 Tr., p. 35.)
{¶39} The parties’ income since the issuance of the divorce decree was
summarized at the hearing as follows:
Charles Elaine
2007 111,821 11,261 2006 105,818 12,744 2005 124,012 8,565 2004 103,665 5,734
(5/14/08 Tr., pp. 17-19, 44-46.) The 2007 figure includes Elaine’s wages from Rite
Aid as well as business income from her housekeeping business.
{¶40} In a judgment entry dated June 27, 2008, the trial court denied Elaine’s
motion to modify spousal support. The trial court premised its decision on a two and
one half page excerpt from Charles’ post hearing brief, which was made a part of the
judgment entry. (6/27/08 J.E., pp. 4-6.)
{¶41} The trial court concluded that Elaine had failed to show a substantial
change in circumstances, based upon the court’s observation that Charles’ income
had decreased since 2004, while Elaine’s income “has doubled.” (6/27/08 J.E., p. 5.)
The trial court also stated that, “[t]he fact that [Elaine] voluntarily chooses not to seek
employment in the field for which she is trained, should not be considered as a
change in circumstances such that [Charles’] spousal support obligation should be
increased. In fact, quite the opposite is true.” (6/27/08 J.E., p. 5.) -14-
{¶42} Finally, the trial court found, “[a]n additional change in circumstances is
that [Elaine] now owns an Eighty-Two Thousand Dollars ($82,000.00) home in the
City of Salem, upon which there is no mortgage.” (6/27/08 J.E., p. 6.)
{¶43} Elaine timely appealed the trial court’s denial of her motion to modify
spousal support. The appeal of her support order and her motion to modify were
consolidated. Appellant’s first three assignments of error challenge the trial court’s
spousal support award as it relates to our decision in Lepowsky II. They will be
addressed together for the purpose of judicial economy.
Assignment of Error I
{¶44} “THE TRIAL COURT ERRED IN FAILING TO INCREASE THE
AMOUNT OF THE SPOUSAL SUPPORT AWARD TO ALLOW APPELLANT TO
MAINTAIN THE STANDARD OF LIVING ESTABLISHED DURING THE PARTIES’
LONG TERM MARRIAGE AS PER THE SPECIFIC DIRECTIVES OF THIS
APPELLATE COURT IN ITS SEPTEMBER 17, 2008 REMAND ORDERS.”
Assignment of Error II
{¶45} “THE TRIAL COURT ERRED IN FAILING TO EXTEND THE
DURATION OF SPOUSAL SUPPORT AS DIRECTED BY THE APPELLATE COURT
IN ITS REMAND ORDERS.”
Assignment of Error III
{¶46} “THE TRIAL COURT ERRED IN ORDERING JUST $200/MONTH
ADDITIONAL SUPPORT TO PAY ON THE ACCUMULATED ARREARAGES.” -15-
{¶47} A trial court has broad discretion in determining spousal support, and a
support award should not be disturbed without finding that an abuse of discretion has
occurred. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399, 350 N.E.2d 413. Thus, a
spousal support decision should be upheld unless the trial court’s attitude is arbitrary,
unconscionable, or unreasonable. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219, 450 N.E.2d 1140.
{¶48} In both of the previous appeals, we made it clear to the trial court that a
spousal support order, even in the amount of $2,000 per month, was inequitable in
this case based on the length of the marriage and Charles’ markedly superior earning
power. Moreover, in Lepowsky II, we concluded that a longer period of support, even
an award of unlimited duration, was appropriate in this case. Despite these
conclusions based on our review of this record, the trial court awarded $1,500 per
month to Elaine for the original eighty-two month period set in the divorce decree
following the second remand.
{¶49} We cannot but conclude, for a third time, that a spousal support award
that is less than $2,000 in this case is inequitable based upon the parties’ income
and earning power, and the duration of the marriage. The Supreme Court of Ohio
has recognized that, “[a]bsent extraordinary circumstances, * * * an inferior court has
no discretion to disregard the mandate of a superior court in a prior appeal in the
same case.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, 462 N.E.2d 410, syllabus. The
trial court has committed an abuse of its discretion in this case. -16-
{¶50} The trial court, in addition to abusing its discretion in the support award
itself, also abused its discretion when it ordered payment of the arrearage. R.C.
3123.21(A) governs the calculation of arrearage payments and reads, in it entirety:
{¶51} “A withholding or deduction notice described in section 3121.03 of the
Revised Code or an order to collect current support due under a support order and
any arrearage owed by the obligor under a support order pertaining to the same child
or spouse shall be rebuttably presumed to provide that the arrearage amount
collected with each payment of current support equal at least twenty per cent of the
current support payment.”
{¶52} A trial court may deviate from the statutorily prescribed amount, and in
doing so, “may consider evidence of household expenditures, income variables,
extraordinary health care issues, and other reasons for a deviation from the twenty
per cent presumption.” R.C. 3123.21(B).
{¶53} Hence, the trial court’s order that Charles pay $200 per month instead
of $300 per month, 20% of the court ordered payment, with no explanation
whatsoever for the downward departure, was error. Notably, under the order made
following Lepowsky II, Charles would continue to make his $200 arrearage payments
for over five years after the $1,500 monthly spousal support payments had
terminated.
{¶54} We have twice remanded this case to the trial court to fashion an
equitable spousal support award and to explain such an award sufficiently for our
review. We are cognizant that a trial court is ordinarily in the best position to do so. -17-
However, in addition to the power to remand a matter to the trial court, Ohio
Appellate Rule 12 also authorizes us to modify a judgment of the trial court when
necessary. Rule 12(B) reads, in pertinent part:
{¶55} “When the court of appeals determines that the trial court committed
error prejudicial to the appellant and that the appellant is entitled to have judgment or
final order rendered in his favor as a matter of law, the court of appeals shall reverse
the judgment or final order of the trial court and render the judgment or final order
that the trial court should have rendered, or remand the cause to the court with
instructions to render such judgment or final order. In all other cases where the court
of appeals determines that the judgment or final order of the trial court should be
modified as a matter of law it shall enter its judgment accordingly.”
{¶56} It is with considerable reluctance that we employ our power under
App.R. 12 to modify the spousal support award in this case. However, based upon
the trial court’s apparent reluctance to follow our previous orders, as well as its
pointed language contained in the entry following our second remand, we can only
view this as an abdication of power on the part of the trial court. The complete futility
of remanding the spousal support issue to the trial court for yet a third time is obvious
by the trial court’s statements at the hearing on Elaine’s motion to modify spousal
support:
{¶57} “If the Court of Appeals disagrees with me -- and I’m talking to the
parties now in the case, that’s fine. There are three of them; one of me. So if they
disagree with me fine. But they are looking at the same record that I am looking at. -18-
So if they have some different opinion about what the spousal support should be,
they have the power to set it. I am sure counsel agrees with that. They chose not to
do that. They have chosen to bounce it back a couple of times, which disappoints
me. Not because they disagree with me, but because I know it’s time and expense
for everybody else in this case.
{¶58} “And I am doing the best I can do; I’m doing what I think is right based
on this record, but their job is to review my work.
{¶59} “So I just want you to understand, none of us in this room are
responsible for the fact that we’re back here again. It’s because they chose, the
Court of Appeals chose, to send it back here to continue this case at this level.
{¶60} “So, you know, we will do the best we can with what we have.” (5/14/08
Tr., pp. 11-12.)
{¶61} An appellate court has the authority to modify the decision of an inferior
court when the interests of justice and efficiency would unlikely be served by
remanding the case. App.R. 12(B); In re Testamentary Trust of Manning, 7th Dist.
No. 05 MA 2, 2005-Ohio-4764, ¶39-48 (modification of fiduciary fees was warranted
when inferior court refused to comply with appellate orders on remand causing
lengthy delays), citing Gockstetter v. Gockstetter June 23, 2000), 6th Dist. No. E-98-
078 (modifying monthly spousal support); Stychno v. Stychno (Aug. 14, 1998), 11th
Dist. Nos. 97-T-0003, 96-T-5620 (modifying division of marital estate and support
award in light of repeated remands). Based upon this authority, it is clear that this is
one of those rare cases where the interests of justice are better served by a -19-
modification of the trial court’s judgment, given the trial court’s disregard of the law of
the case, and the lengthy delays suffered by the parties as a result of repeated
litigation and review.
{¶62} By now, the record in this case is replete with evidence which allows us
to simply do as the trial court asks and fashion an order for the parties based on this
record. Based on Charles’ projected income of $101,000 in 2004, we find that a
retroactive spousal support award of $3,000 (plus a 2% administrative fee) is
equitable in this matter. Coupled with Elaine’s projected business income for 2004,
approximately $5,000, this award would have provided Elaine, as of the date of
divorce, an annual income of $41,000 and Charles would have had an annual
income of $65,000. Because of the length of the marriage and ages of the parties,
the spousal support award is to continue for an indefinite term, and the trial court will
retain jurisdiction over the matter.
{¶63} Of course, the substantial increase in the spousal support award, while
certainly supported in this record and long overdue, will create a substantial
arrearage, due to the length of time that has passed since the date of the original
divorce decree; forty-two months passed between the issuance of the divorce decree
and the trial court’s amended spousal support award following our decision in
Lepowsky II. If we assume April 1, 2010, as the date for the initial $3,000 spousal
support award, an additional twenty-six months will have passed between the
issuance of the trial court’s amended spousal support award and our decision in the
pending consolidated appeal, for a total of sixty-eight months. -20-
{¶64} Upon remand, we order the trial court to calculate the arrearage and set
a monthly arrearage payment in accordance with R.C. 3123.21.
{¶65} In sum, the trial court has twice abused its discretion in this case. Even
the amended spousal support award was $500 less than an amount we deemed
minimally inequitable in two previous Opinions. The arrearage based on this
inadequate award was calculated incorrectly pursuant to statute and there was no
explanation for the downward deviation. Further, the trial court wholly ignored our
directive in Lepowsky II to enter a longer, probably indefinite, term of spousal
support. Accordingly, Elaine’s first, second and third assignments of error are
sustained and we modify the award accordingly.
Assignment of Error IV
{¶66} “THE TRIAL COURT ERRED IN FAILING TO AWARD ATTORNEY’S
FEES AND EXPENSES.”
{¶67} R.C. 3105.73(A) reads, in its entirety:
{¶68} “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 temporary spousal support, the
conduct of the parties, and any other relevant factors the court deems appropriate.”
{¶69} A decision to award attorneys’ fees is reviewed for an abuse of
discretion. Patino v. Foust, 8th Dist. No. 90475, 2008-Ohio-6280, ¶22. The Supreme -21-
Court has repeatedly held the term abuse of discretion implies the court’s attitude is
unreasonable, arbitrary or unconscionable. Blakemore, supra.
{¶70} The trial court gave two reasons for denying Elaine’s motion for
appellate attorneys’ fees. First, the court stated that Elaine did not provide an
affidavit of an outside expert (other than her own counsel) attesting that the fees she
sought were reasonable. The second and more troubling reason stated by the court
was that, “it further appears to the Court the fees were generated by appeals which
Plaintiff decided to file. Both parties have incurred fees and expenses in connection
with the multiple appeals.” (2/1/08 J.E., p. 7.)
{¶71} While it is true that litigants may provide the affidavit of an expert
attesting that the attorneys’ fees that are requested are reasonable, the trial court did
not cite any statute or caselaw, nor could we find any statute or caselaw, for the
proposition that such an affidavit is required. The request for fees was supported by
Elaine’s counsel’s affidavit. Charles provided absolutely no evidence challenging this
affidavit or the reasonableness of the attorneys’ fees, and, therefore, the only
evidence before the trial court was the uncontroverted affidavit of Elaine’s counsel.
{¶72} Of greater concern, is the trial court’s second reason for denying
Elaine’s motion. The court specifically denied fees because it was Elaine who filed
the appeals. This clearly constitutes an abuse of discretion. Of course, the trial court
may consider the parties’ conduct in awarding attorneys’ fees in a divorce case
pursuant to R.C. 3105.73(A). However, it is plain that neither of Elaine’s appeals -22-
were frivolous; both appeals were successful. Therefore, the trial court acted
unreasonably in denying her motion for attorneys’ fees for that stated reason, alone.
{¶73} Turning to the motion, with respect to Elaine’s claims for reimbursement
of attorneys’ fees for preparation of the QDROs, we find that the divorce decree
contemplated only reimbursement for the fees charged by Pension Evaluators.
Consequently, the denial of her motion for attorneys’ fees for the preparation of the
QDROs does not constitute reversible error. Furthermore, with respect to the fees for
expedited service, Elaine’s counsel conceded at oral argument that she was
responsible for the additional fees. Therefore, the trial court’s decision denying the
payment of the expedited fees does not constitute reversible error.
{¶74} The issue of reimbursement for the transcripts appears to be moot.
Charles’ attorney represented in his response brief to the supplement to the motion
for attorneys’ fees that he had directed Charles to reimburse Elaine for the transcript
fee. Elaine does not raise that issue on appeal.
{¶75} With respect to Elaine’s request for appellate attorneys’ fees, we have
reviewed the billing sheet attached to her motion and find that Charles is correct that
certain line items relate to the preparation of the QDROs rather than the two appeals
in this case. Deleting those fees which appear to relate to the preparation of the
QDROs, and considering the factors listed in R.C. 3105.73(A), we find that Elaine is
to be awarded attorneys’ fees in the amount of $6,889.19.
{¶76} While pursuing both appeals, Elaine was struggling to make ends meet
while Charles was still enjoying the benefits of an upper-middle class life style, -23-
vacationing and maintaining membership in a private golf club. Despite the fact that
the trial court twice ignored the Opinion of this Court that the minimum award that
would be equitable here was at least $2,000 per month, Charles apparently made no
effort to settle the matter consistent with our Opinion, choosing instead to force
Elaine to file a third and fourth appeal in this case, as well as forcing her to wait
another two years to receive an equitable spousal support award. Based upon
Charles’ income and his conduct, we find that Elaine’s motion for appellate attorneys’
fees should have been granted.
{¶77} Accordingly, Elaine’s fourth assignment of error is sustained in part,
with respect to the appellate attorneys’ fees, and overruled in part, with respect to the
QDRO attorneys’ fees and the charges for expedited service.
Assignment of Error V
{¶78} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO INCREASE SPOUSAL SUPPORT.”
{¶79} Because we sustain Elaine’s first three assignments of error, her fifth
assignment of error is moot.
{¶80} In summary, Elaine’s first, second, and third assignments of error are
sustained. Pursuant to App.R. 12, we hereby modify the second full paragraph on
page 10 of the divorce decree as follows:
{¶81} “The Court sets the spousal support award payable by Charles
Lepowsky, Jr. to Elaine Lepowsky in the amount of $3,060 (which includes a 2%
administrative fee) per month due on the first day of every calendar month with the -24-
first payment due August 1, 2004. The trial court reserves jurisdiction to make further
modifications of spousal support. It is ordered that the spousal support award herein
shall terminate on the first of the following events to occur: the death of either of the
parties hereto; the remarriage of the Wife; or her cohabitation with a non-relative
adult male.”
{¶82} In addition, we remand this matter to the trial court to calculate the
arrearage and to set a monthly arrearage payment in accordance with R.C. 3123.21.
{¶83} Elaine’s fourth assignment of error with respect to attorney fees is
sustained in part, and she is granted appellate attorneys’ fees in the amount of
$6,889.19. This assignment is also overruled in part, with respect to the amount of
attorneys’ fees sought due to the preparation of the QDROs and the bill for expedited
services. A judgment shall be entered against Charles Lepowsky, Jr. and in favor of
Elaine Lepowsky in the amount of $6,889.19 on this issue. Appellant’s fifth
Vukovich, P.J., concurs.
DeGenaro, J., concurs.