Murphy v. Murphy ( 2012 )

[Cite as Murphy v. Murphy, 2012-Ohio-793.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CHAD MURPHY C.A. No. 25942
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BARBARA MURPHY COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. 2008-06-1940
DECISION AND JOURNAL ENTRY
Dated: February 29, 2012
WHITMORE, Presiding Judge.
{¶1} Plaintiff-Appellant, Chad Murphy (“Husband”), appeals from the judgment of the
Summit County Court of Common Pleas, Domestic Relations Division. This Court affirms.
I
{¶2} Husband and Defendant-Appellee, Barbara Murphy (“Wife”), married in
September 1997. On February 13, 2002, they had their first and only child, C.M. Husband filed
for divorce on June 27, 2008, and Wife filed a counterclaim for divorce. Both parties filed
motions for temporary orders, and a hearing before a magistrate took place on August 11, 2008.
The magistrate then issued an order on August 27, 2008. The order named both Husband and
Wife residential parents and legal custodians of C.M. and ordered Husband to pay $450.00 per
month to Wife in temporary spousal support and $414.33 per month in temporary child support.
{¶3} In the spring of 2009, both Wife and Husband filed motions to modify the
temporary orders. A hearing on the motions took place before the magistrate in June 2009. On
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June 18, 2009, the magistrate issued an order modifying Husband’s temporary support
obligations in the following amounts: (1) increasing his spousal support obligation to $466.66
per month; and (2) increasing his child support calculation to $524.17 per month.
{¶4} A hearing on Husband’s complaint and Wife’s counterclaim for divorce took
place on November 23, 2009. The court issued a judgment entry on December 18, 2009, and
Husband appealed. This Court dismissed the appeal, however, as the entry from which Husband
appealed was not final and appealable. Murphy v. Murphy, 9th Dist. No. 25202, 2011-Ohio-176.
Specifically, the order did not allocate the parties’ parental rights and responsibilities or order
shared parenting. Id. at ¶ 9. Upon remand, the parties filed a proposed shared parenting plan.
The trial court adopted the plan and incorporated it into a judgment entry it issued May 4, 2011.
The judgment entry also ordered Husband to pay $476.83 per month in child support, $800.00
per month in spousal support for a period of four years, and $3,500 for Wife’s reasonable
attorney fees.
{¶5} Husband now appeals from the trial court’s judgment and raises four assignments
of error for our review. For ease of analysis, we consolidate several of the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT
WIFE IS DISABLED BASED SOLELY ON HER OWN TESTIMONY THAT
SHE CAN WORK ABSENT EXPERT EVIDENCE.
Assignment of Error Number Two
THE TRIAL COURT ERRED AS A MATTER OF LAW IN ORDERING
HUSBAND TO PAY $800.00 PER MONTH IN SPOUSAL SUPPORT FOR
FOUR YEARS.
3
Assignment of Error Number Three
THE TRIAL COURT ERRED AS A MATTER OF LAW IN NOT ORDERING
A DEVIATION IN CHILD SUPPORT.
{¶6} In his first three assignments of error, Husband challenges the size of the spousal
and child support obligations the trial court imposed upon him, given the evidence presented at
the divorce hearing. At oral argument, however, Husband’s counsel indicated that Husband
wished to abandon assignments of error one, two, and three, and limit his argument to
assignment of error four. This Court asked for clarification, inquiring whether counsel wished to
dismiss assignments of error one, two, and three on her client’s behalf and counsel agreed that
she was requesting to dismiss the foregoing assignments of error. Because Husband has
voluntarily abandoned the foregoing assignments of error, we need not consider them in our
determination of this appeal.
Assignment of Error Number Four
THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING
$3500.00 IN ATTORNEY’S FEES.
{¶7} In his fourth assignment of error, Husband argues that the trial court erred by
ordering him to pay a portion of Wife’s attorney fees. We disagree.
In any post-decree motion or proceeding that arises out of an action for divorce, *
* * the court may award all or part of reasonable attorney’s fees and litigation
expenses to either party if the court finds the award equitable. In determining
whether an award is equitable, the court may consider the parties’ income, the
conduct of the parties, and any other relevant factors the court deems appropriate,
but it may not consider the parties’ assets.
R.C. 3105.73(B). “[Section] 3105.73 gives the court broad discretion in determining attorney
fees. Its award will not be disturbed on appeal absent a showing of a clear abuse of discretion by
the court.” (Internal citations and quotations omitted.) Miller v. Miller, 9th Dist. No.
07CA0061, 2008-Ohio-4297, ¶ 71. An abuse of discretion means that the trial court was
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unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St. 3d
217, 219 (1983).
{¶8} The trial court awarded Wife $3,500 in attorney fees, which represented
approximately one-third of the total fees she requested. Husband cites to R.C. 3105.73 in his
brief and does not deny that the statute allows trial courts to make equitable awards of attorney
fees in divorce proceedings. His entire argument consists of the following two sentences:
In this case, both the spousal support and child support [awards] were incorrectly
calculated based on the previously stated reasons. The award of attorney’s fees
was inequitable for the same reasons.
Yet, there has not been any showing that the trial court incorrectly calculated the spousal and
child support awards here. Husband specifically withdrew his challenges to the spousal and
child support awards. He does not offer any other argument as to why the award of attorney fees
was inequitable. See App.R. 16(A)(7).
{¶9} This Court will not overturn the trial court’s discretionary award of attorney fees
to Wife in the absence of any argument or authority to the contrary. See Cardone v. Cardone,
9th Dist. No. 18349, 1998 WL 224934, *8 (May 6, 1998) (“If an argument exists that can
support [an] assignment of error, it is not this [C]ourt’s duty to root it out.”). See also Cirino v.
Cirino, 9th Dist. No. 11CA009959, 2011-Ohio-6332, ¶ 15 (affirming award of attorney fees in
divorce proceeding where appellant failed to contest the reasonableness of the amount of fees
awarded). Husband’s fourth assignment of error is overruled.
III
{¶10} Husband’s fourth assignment of error is overruled. We need not reach the merits
of his first, second, and third assignments of error as Husband has abandoned those assignments
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of error on appeal. The judgment of the Summit County Court of Common Pleas, Domestic
Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
MOORE, J.
CARR, J.
CONCUR
APPEARANCES:
HOLLY L. BEDNARSKI, Attorney at Law, for Appellant.
DAVID M. LOWRY, Attorney at Law, for Appellee.