The opinion
[Cite as Roush v. Roush, 2017-Ohio-840.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Allison C. Roush, :
Nos. 15AP-1071,
Plaintiff-Appellee, : 16AP-264,
and 16AP-388
v. : (C.P.C. No. 13DR-1497)
William F. Roush, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 9, 2017
On brief: McKinlay Law Offices, LLC, Amy M. McKinlay,
and Kerry Hageman-Froelich, for appellee. Argued:
Amy M. McKinlay.
On brief: The Tyack Law Firm Co., LPA, and Thomas M.
Tyack, for appellee. Argued: Thomas M. Tyack.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations
DORRIAN, J.
{¶ 1} Defendant-appellant, William F. Roush, appeals from judgments of the
Franklin County Court of Common Pleas, Division of Domestic Relations, denying his
motion for new trial, finding him in contempt of court, and awarding attorney fees to
plaintiff-appellee, Allison C. Roush, related to the contempt proceedings. For the reasons
that follow, we affirm.
I. Facts and Procedural History
{¶ 2} The parties were married in 1996 and had two children. In March 2013,
appellee asked appellant for a dissolution of the marriage. Shortly thereafter, appellee
transferred one-half of the balance in the parties' joint checking account to her personal
account; appellant subsequently transferred the remaining balance of the joint account to
Nos. 15AP-1071, 16AP-264 & 16AP-388 2
his personal account. In April 2013, appellee was involuntarily detained under the
custody of the Franklin County ADAMH Board at Netcare for two days, pursuant to an
order of detention issued by the Franklin County Court of Common Pleas, Probate
Division, based on assertions that appellee suffered from depression and had expressed
suicidal thoughts. On April 23, 2013, appellee filed a complaint for divorce.
{¶ 3} The trial court entered a judgment granting the divorce on May 21, 2015.
The divorce decree ordered appellee to submit a shared parenting plan incorporating the
joint shared parenting plan previously filed with the court. The decree also provided for
child support and spousal support to be paid by appellant. The decree identified the
parties' separate property and provided for division of the marital property. Among the
provisions governing the division of property, the decree ordered appellant to transfer
one-half of the balance of his Chase Roth individual retirement account and $374,404
from his Chase retirement savings plan to appellee. The decree provided that a qualified
domestic relations order was to be prepared to facilitate the transfer of the retirement
savings account funds. The decree also ordered appellant to pay appellee $15,000 toward
her attorney fees.
{¶ 4} Appellant filed a motion for new trial on June 15, 2015, arguing that the
judgment issuing the divorce decree was against the weight of the evidence and contrary
to law. Appellee filed a motion for contempt on July 29, 2015, alleging that appellant
failed to comply with specific provisions of the divorce decree. On September 1, 2015, the
trial court issued a nunc pro tunc amended divorce decree, which corrected a provision
relating to appellant's child support obligation if health insurance was not provided. The
trial court issued a judgment entry denying appellant's motion for new trial on
October 28, 2015. Appellant then filed a notice of appeal to this court of the judgment
entry denying the motion for new trial on November 24, 2015, which was assigned case
No. 15AP-1071. On December 7, 2015, appellant filed a motion to stay the judgment entry
granting the divorce decree. The trial court denied the motion to stay on February 18,
2016, immediately prior to a hearing on the motion for contempt. Following that hearing,
on March 9, 2016, the trial court issued a judgment finding appellant in contempt for
failing to comply with various provisions of the divorce decree. On April 7, 2016,
appellant filed a notice of appeal, assigned case No. 16AP-264, of the judgment entry
Nos. 15AP-1071, 16AP-264 & 16AP-388 3
granting appellee's motion for contempt. Subsequently, on April 22, 2016, the trial court
issued a judgment ordering appellant to pay an additional $5,000 to appellee toward her
attorney fees related to the contempt proceeding. On May 19, 2016, appellant filed a
notice of appeal, assigned case No. 16AP-388, of the trial court's judgment granting
appellee's motion for attorney fees from the contempt proceeding.
II. Assignments of Error
{¶ 5} Appellant appeals from the trial court judgment denying his motion for new
trial, assigning seven errors in case No. 15AP-1071 for this court's review:
I. The Trial Court erred in overruling the Motion for New Trial
and failing to discuss or review the issues raised on the
Motion for New Trial.
II. In the Motion for New Trial, with the appropriate citation,
were the following:
a. Issues surrounding an allegation that the Defendant caused
the Plaintiff to be hospitalized for mental health reasons when
the reality was the Probate Court issued an Order causing the
Plaintiff to be taken to a mental health facility for evaluation.
b. The parties had agreed that equal division of certain
extraordinary expenses for the children, which was
journalized and filed, the Trial Court entered an interim
decision ordering the Defendant to pay 2/3 and the Plaintiff
1/3. While this issue may have been moot because the Court
subsequently filed a "nunc pro tunc Judgment Entry Decree of
Divorce where that issue appears to have been adjusted."
III. The Trial Court erred in incorrectly doubling child support
where there was no insurance contrary to the statutes.
IV. The Trial Court erred in refusing to recognize that two
joint accounts in the name of Plaintiff and one of her children
were part of the marital assets, not education accounts for the
children. Other accounts which were recognized as joint
educational accounts were described.
V. The Trial Court erred when it found that the Plaintiff had
paid and used non-marital assets to contribute toward the
initial purchase of the real estate owned by the parties has
[sic] a non-martial [sic] interest when the only documentation
was a check on the account from the bank where the parties
had their account. No evidence was presented to demonstrate
Nos. 15AP-1071, 16AP-264 & 16AP-388 4
that check came from funds that weren't in existence prior to
the parties' marriage other than the Plaintiff simply saying it
was.
VI. The Trial Court erred in finding that money that was paid
to the Plaintiff suggesting that the Defendant received only a
very limited compensation for damage to the parties [sic] real
estate when in reality another check for several thousand
dollars showing the date of loss and the amount deposited
came from the summer the wind damage that happened the
previous summer, said funds having been placed in the joint
account from which the Plaintiff then removed forty-eight
thousand dollars.
VII. The Trial Court erred in findings with regard to attorney
fees then proceeding then to assess an additional $15,000.00
in attorney fees against the Defendant in favor of the Plaintiff.
{¶ 6} Appellant also appeals in case Nos. 16AP-264 and 16AP-388 from the trial
court judgments finding him in contempt of court and awarding appellee attorney fees
related to the contempt proceeding, assigning four errors for this court's review, which
this court shall refer to as assignments of error eight through eleven:
[VIII.] The Trial Court erred by orally ruling at the time of the
hearing on post-decree Motions filed by the Plaintiff orally
denying the stay requested in December of 2015, in February
of 2016.
[IX.] The Trial Court erred in refusing to consider as
requested by the Defendants [sic] certain documents and
exhibits, which were in evidence from the trial, which were
relevant to the issues being raised on the contempt.
[X.] The Trial Court erred in finding that the Defendant was
guilty of contempt because paperwork ordered to be prepared
by another agency incident to an order for transfer of
retirement benefits had not been completed.
[XI.] The Trial Court erred in ordering the Defendant to pay
an additional $5,000.00 in Attorney Fees to Plaintiff.
III. Discussion
{¶ 7} In his first assignment of error and the first portion of his second
assignment of error, appellant asserts the trial court erred by denying his motion for new
Nos. 15AP-1071, 16AP-264 & 16AP-388 5
trial. Appellant claims the trial court failed to discuss or review the issues raised in the
motion for new trial.
{¶ 8} Civ.R. 59(A) enumerates nine specific grounds on which a new trial may be
granted; the rule further provides that a court has discretion to grant a new trial for good
cause shown. Appellant's motion for new trial appears to have been based on claims that
the judgment was not sustained by the weight of the evidence and was contrary to law.
See Civ.R. 59(A)(6) and (7). "When presented with a Civ.R. 59(A)(6) motion, a trial court
weighs the evidence and considers the credibility of the witnesses to determine whether
the manifest weight of the evidence supports the judgment." Alderman v. Alderman,
10th Dist. No. 10AP-1037, 2011-Ohio-3928, ¶ 12. We review a trial court's ruling on a
Civ.R. 59(A)(6) motion for abuse of discretion. Id. at ¶ 13. An abuse of discretion occurs
when a court's judgment is unreasonable, arbitrary or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). By contrast, a trial court's ruling on a claim that
a new trial is warranted because the judgment is contrary to law under Civ.R. 59(A)(7)
presents questions of law, which are reviewed de novo. Harper v. Lefkowitz, 10th Dist.
No. 09AP-1090, 2010-Ohio-6527, ¶ 6.
{¶ 9} In his motion for new trial, appellant raised the same general claims
asserted in the present appeal. The trial court denied the motion with a brief entry stating
that it had reviewed the evidence, the credibility of the witnesses, and the applicable law,
and found that appellant's request for a new trial was without merit. Appellant argues on
appeal that the trial court erred because it failed to discuss or review the issues raised in
the motion. Specifically, appellant cites his assertion that the divorce decree did not
accurately characterize the events leading to appellee's institutionalization and mental
health evaluation. The trial court stated in the divorce decree that appellant was
responsible for having appellee involuntarily institutionalized in April 2013. Appellant
appears to argue that this conclusion was not supported by the weight of the evidence,
citing the order of detention entered by the probate court, providing for appellee to be
detained at Netcare. The order of detention was supported by an affidavit filed by a
Netcare social worker. Appellant argues this demonstrates that he was not responsible for
appellee's institutionalization under the authority of the probate court.
Nos. 15AP-1071, 16AP-264 & 16AP-388 6
{¶ 10} The content of the affidavit, however, supports the trial court's conclusion
that appellant was responsible for initiating the process that led to appellee's
institutionalization. The social worker stated in the affidavit that appellant called Netcare
and reported that appellee threatened to commit suicide, that she had been showing rage
in front of the parties' children, and that she had been a restless sleeper. The social
worker relied on these statements to support her assertion that appellee presented a
substantial risk of self-harm. While appellant may not have personally filed the
documents in the probate court leading to appellee's institutionalization, the evidence
suggests that appellant was involved in initiating the process that led to the filing of those
documents. Under these circumstances, we cannot conclude that the trial court abused
its discretion by denying the motion for new trial on grounds that the judgment was not
supported by the weight of the evidence.
{¶ 11} Accordingly, we overrule appellant's first assignment of error and the first
portion of appellant's second assignment of error.
{¶ 12} In the second portion of his second assignment of error, appellant appears
to claim that the trial court erred by ordering him to pay two-thirds of certain
extraordinary expenses for the children. In his brief, appellant argues the parties agreed
to an equal division of school expenses, school supplies, and extracurricular activity
expenses, and the trial court erred by ordering appellant to pay two-thirds of those
expenses. On August 26, 2015, prior to entry of the divorce decree, appellee submitted a
shared parenting plan providing, in relevant part, that the children's school expenses and
extracurricular activity expenses would be divided equally between the parties. On
September 15, 2015, following entry of the divorce decree, the trial court adopted
appellee's shared parenting plan. Thus, to the extent appellant argues the divorce decree
is inconsistent with the agreement of the parties, it appears this argument is rendered
moot by the trial court's adoption of appellee's shared parenting plan, which provides for
an equal division of these expenses.
{¶ 13} Accordingly, we overrule the second portion of appellant's second
assignment of error.
{¶ 14} Appellant's third assignment of error asserts the trial court erred by
effectively doubling appellant's child support obligation when health insurance was not
Nos. 15AP-1071, 16AP-264 & 16AP-388 7
provided. In the original divorce decree, the trial court ordered appellant to pay child
support in the amount of $1,305.00 per month if health insurance was provided, or
$1,268.43 per month, per child, and $201.92 in cash medical support if health insurance
was not provided. In the nunc pro tunc judgment entry, the trial court deleted the "per
child" provision, requiring appellant to pay child support in the amount of $1,305.00 per
month if health insurance was provided, or $1,268.43 per month and $201.92 in cash
medical support if health insurance was not provided.
{¶ 15} Accordingly, we need not rule on appellant's third assignment of error
because it was rendered moot by the trial court's nunc pro tunc entry, as appellant
acknowledged at oral argument.
{¶ 16} Appellant's third assignment of error is rendered moot.
{¶ 17} Appellant's fourth, fifth, and sixth assignments of error assert the trial court
erred with respect to its findings regarding various assets. Because these three
assignments of error address the trial court's findings regarding the division of assets, we
will consider them together.
{¶ 18} A domestic relations court has broad discretion to make divisions of
property in a divorce action. Zeidman v. Zeidman, 10th Dist. No. 15AP-783, 2016-Ohio-
4767, ¶ 13. "In divorce proceedings, the court shall * * * determine what constitutes
marital property and what constitutes separate property. [U]pon making such a
determination, the court shall divide the marital and separate property equitably between
the spouses." R.C. 3105.171(B). We review a trial court's determination of property as
marital or separate under a manifest weight standard, and we will affirm a trial court's
determination if it is supported by some competent, credible evidence. Banchefsky v.
Banchefsky, 10th Dist. No. 09AP-1011, 2010-Ohio-4267, ¶ 36. See also Wolf-Sabatino v.
Sabatino, 10th Dist. No. 10AP-1161, 2011-Ohio-6819, ¶ 12 ("An appellate court's job is not
to reweigh the evidence but to determine whether competent, credible evidence in the
record supports the trial court's findings."). A trial court's valuation and division of
property is subject to review for abuse of discretion. Banchefsky at ¶ 36.
{¶ 19} In his fourth assignment of error, appellant argues the trial court erred by
concluding that two Chase savings accounts were custodial accounts held on behalf of the
parties' two children. Appellant asserts these savings accounts should have been
Nos. 15AP-1071, 16AP-264 & 16AP-388 8
designated as marital assets and allocated accordingly in the division of marital assets.
Appellant claims that appellee removed $4,000 from a joint checking account held by the
parties and deposited $2,000 into each of the Chase savings accounts at the time appellee
filed for divorce. Appellant further argues that each of the children also had an education
account, which earned significantly higher interest than the Chase savings accounts.
Appellant claims that the existence of these higher-interest education accounts supports
his claim that the Chase savings accounts were marital assets, not accounts held for the
children's benefit.
{¶ 20} The trial court found the Chase savings accounts were assets of the parties'
children. The court noted that each child had an education account and that the parties
opened and began contributing to the Chase savings accounts during a period when the
children's education accounts were losing money due to economic conditions. The court
also acknowledged appellee's withdrawal of funds from the parties' joint account and
deposits into the children's Chase savings accounts in March 2013, but noted that appellee
testified she did not typically discuss these types of transfers with appellant. The court
ordered that appellee retain the position of custodian of the children's education accounts
and the Chase savings accounts. The court further ordered appellee to transfer the funds
contained in each of the Chase savings accounts to each child's respective education
account.
{¶ 21} Although appellant argues that the existence of the higher-interest
education accounts for each child belies appellee's claim that the savings accounts were
intended for the children's education, the record contains competent, credible evidence to
support the trial court's conclusion. Appellee testified that the parties typically
transferred money into each child's account each year. She further testified that when the
stock market was losing money, the money was placed into the Chase savings accounts to
avoid losses in the education accounts. On cross-examination, appellee testified that no
money had been transferred from the Chase savings accounts into the children's
education accounts during the pendency of the divorce proceeding because of temporary
orders issued by the court. Appellant did not provide any contrary evidence or testimony
regarding the parties' practices with respect to the children's accounts. The divorce decree
indicates the trial court found appellee's testimony with respect to the children's savings
Nos. 15AP-1071, 16AP-264 & 16AP-388 9
accounts to be credible. "[I]t is well-established that a trial court, particularly a domestic
relations court, is in the best position to resolve disputes of fact, and assess the 'credibility
of witnesses' and the weight to be given to their testimony." Bates v. Bates, 10th Dist. No.
04AP-137, 2005-Ohio-3374, ¶ 38. There was competent, credible evidence to support the
trial court's conclusion that the Chase savings accounts were not marital assets and,
therefore, this conclusion is not against the manifest weight of the evidence.
{¶ 22} Accordingly, we overrule appellant's fourth assignment of error.
{¶ 23} Appellant argues in his fifth assignment of error that the trial court erred by
concluding that the bulk of the down payment for the parties' marital residence was paid
for with appellee's separate property. The trial court concluded that the parties made a
down payment of $24,301 on the marital residence, and that $21,785 of that down
payment was comprised of appellee's separate property. Appellant claims there was no
evidence presented to support appellee's claim that this portion of the down payment was
made from an inheritance received from her grandmother.
{¶ 24} The trial court noted in the divorce decree that appellee presented copies of
two checks written in her maiden name to Trinity Homes and Preferred Title,
respectively. The check to Trinity Homes, in the amount of $4,050.00, was written on
October 23, 1996, prior to the marriage. The check to Preferred Title, in the amount of
$18,535.47, was issued on June 5, 1997, approximately six months after the parties were
married. The trial court also cited appellee's testimony that she received these funds as an
inheritance from her grandmother. Further, the trial court noted appellee's claim that the
home was purchased approximately six months after each of them graduated from Ohio
University and that it was unlikely they would have saved $20,000 during their brief
careers. The court concluded that this constituted competent, credible evidence to
establish by a preponderance of the evidence that appellee had a separate, pre-marital
interest in the property.
{¶ 25} Appellee testified that both she and appellant contributed funds toward the
purchase of the home. Appellee testified that appellant contributed $800 toward the
down payment, identifying a check written by appellant's parents. Appellee also
identified the two checks cited in the divorce decree, asserting that the check to Preferred
Title was written when she closed a personal savings account containing funds that she
Nos. 15AP-1071, 16AP-264 & 16AP-388 10
inherited from her grandmother. She testified that appellant did not contribute to the
amounts contained in the checks to Trinity Homes and Preferred Title. Appellee testified
that she did not believe either of the parties would have been able to save $20,000 during
the span of six months in 1996, based on their employment and income at the time.
Appellant did not offer any contrary evidence or testimony regarding the sources for the
down payment on the marital residence.
{¶ 26} On appeal, appellant notes that the check to Preferred Title was a cashier's
check from Bank One, which he asserts was the predecessor institution to JPMorgan
Chase, where the parties had their shared checking account. Appellant asserts that
appellee failed to provide any documentation to corroborate her claim that she received
an inheritance from her grandmother. However, appellant did not offer any testimony
evidence or testimony to establish that the down payment was made from marital assets.
In effect, appellant asks this court to reweigh the evidence presented, which is beyond our
purview. See Wolf-Sabatino at ¶ 12. As noted above, the trial court was in the best
position to evaluate the credibility of the witnesses. The trial court clearly found
appellee's testimony to be credible. We conclude that appellee's testimony and
documentary evidence constitutes competent, credible evidence to support the trial
court's conclusion regarding appellee's separate interest in the marital residence.
{¶ 27} Accordingly, we overrule appellant's fifth assignment of error.
{¶ 28} Appellant's sixth assignment of error asserts the trial court erred in its
findings with respect to insurance claims for damage to the marital residence that
occurred in 2012, and the corresponding value of the marital residence. In the divorce
decree, the trial court stated that the residence was damaged by a windstorm in summer
2012, and further damaged by a leak in autumn 2012. The court found that appellant
made claims on the parties' homeowners insurance related to both of these incidents. The
court stated that appellant received a payment of $1,323.07 for the claim on the damage
that occurred in summer and another payment of $7,008.41 for the claim on the damage
that occurred in autumn. The court concluded that appellee effectively received one-half
of these insurance proceeds because the payments had been deposited into the parties'
joint checking account and appellee subsequently transferred one-half of the balance in
that account to her personal account. The trial court found that appellant and a neighbor
Nos. 15AP-1071, 16AP-264 & 16AP-388 11
repaired the damage in both instances. The court rejected appellant's claim that the
repairs completed with the neighbor were temporary and that appellee needed to return
one-half of the insurance proceeds so that adequate repairs could be made, concluding
that appellant's testimony was not credible in light of the parties' history of hiring their
neighbor to perform home repairs.
{¶ 29} Appellant argues that the claim numbers on each of the insurance checks
introduced into evidence are identical, and that this establishes that all of the insurance
proceeds were compensation for the wind damage that occurred in summer 2012.
Appellant claims that the intention was to use these proceeds to undertake more extensive
repairs the following spring. In effect, appellant appears to argue that the trial court
should have ordered appellee to return one-half of the insurance proceeds or should have
discounted the value of the marital residence to adjust for the damage.
{¶ 30} Assuming, without deciding, that the trial court incorrectly attributed the
insurance payment of $7,008.41 to the autumn incident when it was issued for the
summer incident, this does not change the court's ultimate conclusion rejecting
appellant's argument that further repairs were necessary. Appellee testified that appellant
and the neighbor repaired the damage that occurred in summer 2012. Appellee also
testified that the neighbor repaired the leak damage that occurred in autumn 2012. She
further testified that the neighbor had previously performed other home improvement
tasks for the parties. Appellee stated that appellant did not express any concern about the
condition of the residence or need for further repairs, and she believed he was satisfied
with the work the neighbor performed. By contrast, appellant testified that all of the
insurance payments were for repairs to the damage that occurred in spring 2012. He
testified that the work performed with the neighbor was merely emergency repairs to the
siding, and that there was a plan to undertake a full repair in spring 2013. After
considering this evidence, the trial court concluded that appellant's testimony was not
credible. The trial court effectively concluded that the neither the value of the marital
residence nor the balance of the joint checking account needed to be adjusted to account
for further repairs to the residence. The court's valuation and division of marital property
is subject to abuse of discretion review. Banchefsky at ¶ 36. Here, the trial court
explained the basis for its conclusion, and we cannot find that the court's conclusion was
Nos. 15AP-1071, 16AP-264 & 16AP-388 12
unreasonable, arbitrary or unconscionable and, therefore, it does not constitute an abuse
of discretion.
{¶ 31} Accordingly, we overrule appellant's sixth assignment of error.
{¶ 32} In his seventh assignment of error, appellant argues the trial court erred by
ordering him in the divorce decree to pay appellee $15,000 toward her attorney fees.
Pursuant to R.C. 3105.73(A), in a divorce action, a trial 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." We
review an award of attorney fees under R.C. 3105.73(A) for abuse of discretion. McCall v.
Kranz, 10th Dist. No. 15AP-436, 2016-Ohio-214, ¶ 27.
{¶ 33} Appellant raises two arguments in support of his claim that the trial court
erred by ordering him to pay appellee's attorney fees under the divorce decree. First,
appellant argues the trial court erred by finding that he attempted to have appellee
removed from the marital residence by the Grove City Police Department. Similar to the
arguments raised in support of his first assignment of error, appellant asserts that
appellee was removed from the marital residence and hospitalized at Netcare as a result of
the probate court action initiated by a Netcare social worker, not by appellant. As
explained above, in our discussion of the first assignment of error, although appellant
may not have personally filed the probate court action resulting in appellee's
institutionalization, the evidence suggests that appellant was involved in initiating the
process that led to the filing of that action. Therefore, the trial court did not abuse its
discretion in considering this as one factor in determining whether an award of attorney
fees would be equitable.
{¶ 34} Second, appellant argues the trial court misstated his legal expenses when
granting appellee's request for attorney fees. Appellant was represented by two different
attorneys during the course of the divorce proceedings. The trial court stated in the
divorce decree that appellant had paid his first attorney, Luther Mills, a $15,000.00 flat
fee, and had paid his subsequent attorney an additional $22,237.50, resulting in total
attorney fees of $37,237.50. The court noted that, prior to the start of the trial, appellee
Nos. 15AP-1071, 16AP-264 & 16AP-388 13
had accrued attorney fees and expense of $64,801.88. Contrary to the trial court's
findings, appellee's trial exhibit 41 appears to show approximately $35,000.00 in total
payments from appellant to Mills, including a single payment of $15,000.00. Appellant
testified that Mills had billed him approximately $44,000.00, and that he had paid Mills
approximately $40,000.00. Appellant also testified that his understanding was that the
litigation phase of the case would be covered by a flat-fee payment of $15,000.00 to Mills.
Appellant further testified, however, that his current counsel was pursuing an action
against Mills's estate to recover excess fees appellant paid. It was unclear from appellant's
testimony how much he sought to recover from Mills's estate in alleged overpayments.
Thus, it appears the trial court may have been off with respect to the amount appellant
paid to his prior counsel and the discrepancy between the parties' respective legal fees.
{¶ 35} Although the trial court's determination of the amount of discrepancy
between the parties' attorney fees may have been off, that was not the only factor the trial
court relied on in awarding attorney fees to appellee. Pursuant to R.C. 3105.73(A), the
court may consider the parties' assets and income, the parties' conduct, and any other
relevant factors the court deems appropriate. See Hamad v. Hamad, 10th Dist. No.
06AP-516, 2007-Ohio-2239, ¶ 76 (holding that trial court does not abuse its discretion if it
considers the parties' abilities to pay attorney fees in making an award under R.C.
3105.73(A)). "Because a court addresses an award of attorney fees through equitable
considerations, a trial court properly can consider the entire spectrum of a party's actions,
so long as those actions impinge upon the course of the litigation." Padgett v. Padgett,
10th Dist. No. 08AP-269, 2008-Ohio-6815, ¶ 17. In ordering appellant to pay a portion of
appellee's attorney fees, the trial court noted that appellee had incurred significant debt
and borrowed from her parents to cover her legal costs, while appellant maintained a
substantial balance in his personal bank accounts. The court further noted that appellant
engaged in multiple violations of court orders. Under these circumstances, because the
trial court relied on multiple factors in determining that an award of attorney fees in favor
of appellee would be equitable, we cannot conclude that the trial court abused its
discretion despite its apparently erroneous finding regarding the relative discrepancy
between the parties' attorney fees.
{¶ 36} Accordingly, we overrule appellant's seventh assignment of error.
Nos. 15AP-1071, 16AP-264 & 16AP-388 14
{¶ 37} Next, we turn to appellant's eighth through eleventh assignments of error,
which relate to the contempt judgment and award of additional attorney fees.
{¶ 38} In his eighth assignment of error, appellant asserts the trial court erred by
delaying its ruling on his motion for a stay of execution of the divorce decree while his
appeal from the denial of the motion for new trial was pending, and then by orally
denying the motion for stay at the contempt hearing. Appellant claims that the trial
court's delay prevented him from pursuing an order staying execution of the divorce
decree from this court. Generally, denial of a motion to stay is reviewed for abuse of
discretion. See Stubbs v. Dept. of Rehab. & Corr., 10th Dist. No. 11AP-484, 2012-Ohio-
1374, ¶ 6. Appellant does not appear to argue that the trial court erred by denying his
motion to stay; rather, his arguments focus on the fact that the trial court did not rule on
his motion to stay until the contempt hearing.
{¶ 39} As noted above, the original divorce decree was entered on May 21, 2015,
and appellant filed his motion for new trial on June 15, 2015. The trial court issued the
nunc pro tunc amended divorce decree on September 1, 2015, and the judgment entry
denying appellant's motion for new trial on October 28, 2015. Appellant then filed his
notice of appeal of the denial of his motion for new trial to this court on November 24,
2015. Appellant filed a motion to stay on December 7, 2015, which the trial court denied
on February 18, 2016, immediately prior to a hearing on the motion for contempt.
{¶ 40} Appellant appears to argue that the trial court's delay in ruling on his
motion for stay prevented him from seeking a stay of the divorce decree from this court.
App.R. 7(A) provides, in relevant part, that:
Application for a stay of the judgment or order of a trial court
pending appeal * * * must ordinarily be made in the first
instance in the trial court. A motion for such relief * * * may
be made to the court of appeals or to a judge thereof, but,
except in cases of injunction pending appeal, the motion shall
show that application to the trial court for the relief sought is
not practicable, or that the trial court has, by journal entry,
denied an application or failed to afford the relief which the
applicant requested.
(Emphasis added.) Thus, while the ordinary procedure involves applying for a stay of a
judgment in the trial court, the plain language of App.R. 7(A) suggests that appellant
could have applied to this court for a stay prior to the trial court's February ruling, on the
Nos. 15AP-1071, 16AP-264 & 16AP-388 15
basis that the trial court had failed to afford the requested relief. Moreover, we note that
after the trial court denied appellant's motion for stay, appellant filed a motion to stay in
this court, which we denied. Further, we note that appellant has appealed from the trial
court's contempt rulings, which are part of this consolidated appeal. Under these
circumstances, we cannot conclude that the trial court abused its discretion by denying
the motion to stay, or that appellant was prejudiced by the timing of the trial court's
ruling.
{¶ 41} Accordingly, we overrule appellant's eighth assignment of error.
{¶ 42} Appellant argues in his ninth assignment of error that the trial court erred
by refusing to consider certain exhibits that were admitted at trial in the contempt
hearing. Appellant specifically sought to direct the court's attention to exhibits that were
introduced at trial regarding appellee's attorney fees and financial accounts. Appellee
objected to this evidence, asserting that the issue of appellee's attorney fees or her ability
to pay them was not at issue in the contempt hearing. The trial court sustained appellee's
objection.
{¶ 43} Generally, the admission or exclusion of evidence lies within the broad
discretion of the trial court. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62.
The issue before the court at the contempt hearing was appellant's failure to comply with
various provisions of the divorce decree. Appellant has failed to demonstrate how the
exhibits he sought to refer to at the contempt hearing were relevant to this underlying
issue. We cannot conclude that the trial court abused its discretion by sustaining
appellee's objection and declining to consider this evidence, despite the fact that it was
previously admitted into evidence at trial.
{¶ 44} Accordingly, we overrule appellant's ninth assignment of error.
{¶ 45} In his tenth assignment of error, appellant asserts the trial court erred by
finding him guilty of contempt for failure to transfer funds from his retirement accounts
to appellee. Appellant asserts that it was necessary to have a qualified domestic relations
order prepared to transfer his retirement benefits and that the entity required to prepare
that document had not provided any information to him. Therefore, appellant argues, he
should not have been held in contempt for failure to comply with that portion of the
divorce decree.
Nos. 15AP-1071, 16AP-264 & 16AP-388 16
{¶ 46} "Contempt results when a party before a court disregards or disobeys an
order or command of judicial authority." Byron v. Byron, 10th Dist. No. 03AP-819,
2004-Ohio-2143, ¶ 11. "A finding of contempt requires three findings: an order of the
court, knowledge of the order by the alleged contemnor, and a failure to comply with the
prior court order." In re P.P., 10th Dist. No. 13AP-140, 2013-Ohio-4988, ¶ 19. The burden
of proof for civil contempt is clear and convincing evidence. Byron at ¶ 12. Generally,
impossibility of performance is a valid defense against a contempt charge, but it is not a
valid defense where the contemnor created the impossibility by his own actions. P.P. at
¶ 21. A defendant must prove impossibility of performance by a preponderance of the
evidence. Id. We review a finding of contempt for abuse of discretion. Byron at ¶ 15.
{¶ 47} Appellant testified at the contempt hearing that he had not been given any
information about an individual retirement account in appellee's name to which the
retirement benefits could be transferred. He further testified he had not received any
information from the company designated in the divorce decree to prepare the qualified
domestic relations order. Appellant testified he believed he could incur a tax penalty if the
qualified domestic relations order was not properly prepared. On cross-examination,
however, appellant admitted that the balance sheet attached as an exhibit to the divorce
decree indicated that appellee had an individual retirement account in her name.
Appellant further admitted that neither he nor his attorney had contacted the company
designated to prepare the qualified domestic relations order about the transfer of his
retirement benefits to appellee, stating "No. I mean, I don't even know who they are."
(Feb. 18, 2016 Tr. at 67-68.)
{¶ 48} The divorce decree clearly set forth the requirement that appellant transfer
one-half of his Chase Roth individual retirement account, as well as $374,404 from his
Chase retirement plan, to appellee. The order also designated the entity to prepare the
qualified domestic relations order and set forth the basic terms to be included in that
order. Appellant did not deny having knowledge of the requirement that these retirement
benefits were to be transferred to appellee. Moreover, we note appellant was represented
by counsel whom he could have asked to pursue the necessary documentation to comply
with the divorce decree. To the extent appellant's argument could be construed to claim
impossibility of performance due to failure of the third-party entity to prepare the
Nos. 15AP-1071, 16AP-264 & 16AP-388 17
necessary documents, appellant failed to show that any such impossibility was not due to
his own failure to contact or have his counsel contact that entity regarding the transfer.
The evidence presented at the contempt hearing established the existence of this
requirement under the court's order and that appellant was aware of the requirement and
had failed to comply. The trial court did not abuse its discretion by holding appellant in
contempt for failure to comply with the retirement benefit transfer portions of the divorce
decree.
{¶ 49} Accordingly, we overrule appellant's tenth assignment of error.
{¶ 50} In his eleventh assignment of error, appellant argues the trial court erred by
ordering him to pay an additional $5,000 in attorney fees related to the contempt motion.
Pursuant to R.C. 3105.73(B), a trial court may award attorney fees in a post-decree motion
or proceeding arising out of a divorce action 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." An award of attorney fees related to a post-decree
motion or proceeding will not be overturned absent an abuse of discretion. Roubanes v.
Roubanes, 10th Dist. No. 14AP-183, 2014-Ohio-5163, ¶ 6.
{¶ 51} Appellant effectively reiterates his prior arguments in support of his
eleventh assignment of error, asserting that it was inappropriate for the trial court to
award appellee an additional $5,000 in attorney fees when she had already been awarded
$15,000 in attorney fees under the divorce decree. Appellant claims the trial court should
have considered this as another relevant factor in ruling on appellee's request for attorney
fees. In the judgment awarding attorney fees, the trial court found that appellee had
incurred post-decree attorney expenses of nearly $10,000, but noted that some of those
fees were attributable to matters other than the contempt motion. The court concluded
that appellee's attorney fees were reasonable, having considered the factors set forth in
Prof.Cond.R. 1.5, including the experience of appellee's attorney and whether the hourly
rate charged was comparable with that for similar legal services. The court also found
that appellant's income far exceeded appellee's income, even after factoring in spousal
support and child support obligations. Further, the court found that appellant had
demonstrated consistent disregard for the court's orders and concluded that his conduct
Nos. 15AP-1071, 16AP-264 & 16AP-388 18
would likely cause appellee to accrue additional attorney fees. Based on the analysis set
forth in the trial court's judgment awarding appellee attorney fees related to the contempt
proceedings, we cannot conclude that the trial court's decision was unreasonable,
arbitrary or unconscionable.
{¶ 52} Accordingly, we overrule appellant's eleventh assignment of error.
IV. Conclusion
{¶ 53} For the foregoing reasons, we overrule appellant's first, second, fourth, fifth,
sixth, seventh, eighth, ninth, tenth, and eleventh assignments of error, render moot
appellant's third assignment of error, and affirm the judgments of the Franklin County
Court of Common Pleas, Division of Domestic Relations.
Judgments affirmed.
SADLER and BRUNNER, JJ., concur.