Wojanowski v. Wojanowski , 2017 Ohio 11 ( 2017 )

[Cite as Wojanowski v. Wojanowski, 2017-Ohio-11.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103695
DEBORAH WOJANOWSKI
PLAINTIFF-APPELLANT
vs.
PETER WOJANOWSKI
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-11-339379
BEFORE: Kilbane, P.J., Stewart, J., and Blackmon, J.
RELEASED AND JOURNALIZED: January 5, 2017
ATTORNEY FOR APPELLANT
Justin M. Smith
J.M. Smith Co., L.P.A.
520 Tower East
20600 Chagrin Boulevard
Shaker Heights, Ohio 44122
ATTORNEYS FOR APPELLEE
James L. Simon
Andrew J. Simon
Law Office of Andrew J. Simon
6000 Freedom Square Drive
Building II, Suite 165
Independence, Ohio 44131
MARY EILEEN KILBANE, P.J.:
{¶1} Plaintiff-appellant, Deborah Wojanowski (“wife”), appeals from the
judgment of the Cuyahoga County Common Pleas Court, Domestic Relations Division,
denying her motion for attorney fees in connection with various postdecree contempt
motions against defendant-appellee, Peter Wojanowski (“husband”). For the reasons set
forth below, we affirm.
{¶2} The parties were married in 1987. On November 22, 2011, wife filed for
divorce.1 In March 2013, the parties were granted a divorce. The trial court divided the
marital property, awarded wife spousal support of $4,500 a month until remarriage or
cohabitation, and awarded her attorney fees of $25,000. The trial court also ordered as
follows:
Within seven (7) days * * * the parties shall agree upon a listing agent and a
listing price. In the event that they cannot or do not agree upon a listing
agent, [husband] shall select the listing agent. In the event that the parties
cannot agree upon a listing price the listing agent shall determine the listing
price. In the event that the [marital residence] is not sold within ninety
(90) days of being listed [husband] may reduce the listing price. The
parties shall accept any offer that is within fifteen percent (15%) of the
listing price. Each party shall sign all documents necessary to list the
[marital residence] for sale and shall take any and all steps necessary to
effectuate the sale. Neither party shall take any action to hinder the sale of
the [marital residence].
[Wife] shall receive one-half of the * * * retirement assets[.]
1
The record indicates that the wife first filed for divorce in 2010. Several
months later, after the trial court issued an order directing that the marital home
in Brecksville, Ohio be listed for sale at no less than $272,000 and that the parties
“accept any offer within 10% of the listing price,” wife dismissed her complaint.
***
[Husband shall also transfer to wife]:
1. $46,675.11 from the Ohio Catholic Credit Union[.]
2. $33,828.40 from the PNC Money Market account[.]
3. One-half (½) of the funds on deposit in the PNC
checking
account[.]
4. One-half (½) of Third Federal CD Account[s.]
5. One-half (½) Merrill Lynch CMA Sub account[.]
6. One-half (½) of Merrill Lynch CMA Sub account[.]
{¶3} Husband appealed the trial court’s 2013 judgment to this court. See
Wojanowski v. Wojanowski, 8th Dist. Cuyahoga No. 99751, 2014-Ohio-697(“Wojanowski I”). This court affirmed in part, reversed in part, and remanded in order
for the trial court to: (1) explicitly divide the proceeds of the sale of the marital home; (2)
correct calculation errors made in dividing the Ohio Catholic Credit Union Account and
PNC money market accounts; and (3) determine the value of various personal property.2
Id.{¶4} Following Wojanowski I, both parties filed a series of motions to show cause
with requests for attorney fees in which they accused the other of failing to comply with
court orders. On May 17, 2013, wife filed a motion to show cause alleging that husband
withdrew funds from the Ohio Catholic Credit Union, PNC Money Market, PNC
checking account, and Merrill Lynch sub accounts, and failed to preserve her portion of
the funds. On July 19, 2013, husband filed a motion to show cause in which he alleged
2
All of these matters were rectified following a hearing on remand in April 2014.
that wife had not paid the mortgage for several months and “has taken steps to hinder the
sale of the [marital residence].” On September 3, 2013, wife filed a motion to show
cause alleging, inter alia, that husband refused to agree to various repairs at the marital
home, thereby preventing her from listing the property for sale.
{¶5} On March 28, 2014, the parties advised the court that they had reached an
agreement regarding additional ongoing disputes, including tax issues from 2010 to 2012,
and that wife had received $40,184 from the Ohio Catholic Credit Union account, and
$29,542 from the PNC account. Thereafter, on April 16, 2014, the parties filed a joint
notice of dismissal of the pending motions to show cause, in which they dismissed their
respective motions without prejudice and indicated that each “party shall pay his/her own
attorney fees.” They reserved the right, however, to reassert these issues dating back to
the original pleadings if the issues remained unresolved.
{¶6} The following month, on May 28, 2014, husband filed a motion to show
cause in which he asserted that there was a potential buyer for the home but wife failed to
cooperate with the sale, refused requests to show the home, and failed to pay the
mortgage. On June 2, 2014, wife filed a motion to show cause alleging that husband
refused to fund repairs needed in order to complete “recommended” repairs to maximize
the selling price of the home. She further alleged that husband owed her $20,893 from
the Merrill Lynch sub accounts, $25,000 from the 2013 award of attorney fees, and
various retirement account funds.
{¶7} On June 16, 2014, husband filed a motion to show cause, alleging that his
realtor obtained an offer to purchase the home for $300,000, or more than the listing
price, but wife refused to accept that offer. On October 7, 2014, wife filed a motion for
sanctions after husband left his postdecree deposition. On December 16, 2014, the
parties entered into an agreed judgment entry regarding “pending matters,” notifying the
court that they agreed to sell the marital residence “as is” without making additional
repairs. On December 23, 2014, the trial court issued an order in which it concluded
that the parties’ agreed entry was fair, just, and equitable, and noting that each party had
“waived their rights.”
{¶8} On February 12, 2015, wife filed another motion to show cause and request
for attorney fees, again alleging that husband refused to fund repairs needed in order to
complete “recommended” repairs to maximize the selling price of the marital residence.
These “repairs” included replacing most of the carpeting because of pet damage, roof
repair, door repair, and painting. On February 17, 2015, wife moved to vacate the
December 2014 agreed entry in which she agreed to sell the marital residence “as is.”
{¶9} The matter proceeded to trial before a magistrate over four days from
February 2015 to April 2015. On July 8, 2015, the magistrate issued a 38-page decision.
In relevant part, the magistrate found husband in contempt of court for failing to pay his
portion of the costs for repairs necessary to sell the marital residence and for failing to
transfer one-half of the Merrill Lynch sub accounts to wife. The magistrate also noted
that wife had hired and fired six attorneys through the course of the litigation. The
magistrate found wife in contempt of court for hindering the sale of the property, refusing
to cooperate with the listing agents, and refusing to accept a purchase offer.
{¶10} As to attorney fees, the magistrate noted that husband incurred attorney fees
of $24,139 and wife incurred attorney fees of $25,998 for postdecree representation.
The magistrate denied husband’s motion for attorney fees in light of his violation of court
orders and the large disparity in the parties’ incomes — husband’s yearly income is
$130,000-$140,000, whereas wife’s sole income is her $4,500 monthly spousal support
award. The magistrate also denied wife’s motion for attorney fees, noting that she had
previously been awarded $25,000 in the divorce action. Additionally, the magistrate
concluded that it would not be equitable to award wife attorney fees because she waived
her right to attorney fees in the April 16, 2014 agreed entry.
{¶11} Both parties filed objections to the magistrate’s decision. After reviewing
the decision and the transcript of the proceedings, the trial court sustained husband’s
objections and determined that he was not in contempt of court in connection with the
sale of the marital residence. The court overruled wife’s objections. The trial court
likewise denied both parties’ motions for attorney fees.
{¶12} Wife now appeals, assigning five errors challenging the denial of her motion
for attorney fees.
Assignment of Error One
The trial court erred by failing to find that the parties’ disparity [in income]
warranted the award of attorney’s fees to Appellant and that Appellee’s
sanctions merited treble damages according to statute.
Assignment of Error Two
The trial court erred by inappropriately applying the law relating to the
award of attorney’s fees and erred in its review of the requisite factors for
award.
Assignment of Error Three
The trial court erred in denying Attorney Rabb’s fees and finding Attorney
Rabb’s fees were res judicata and from a previous proceeding.
Assignment of Error Four
The trial court improperly found that the Agreed Journal Entry of April 16,
2014 precluded an award of attorney fees.
Assignment of Error Five
The trial court erred by not allowing Attorney Smith to testify as to his
attorney’s fees and in finding no evidence of Appellant’s attorney’s fees
was presented.
Postdecree Attorney Fee Awards
{¶13} In her first and second assignments of error, wife asserts that the trial court
erred in failing to award her attorney fees because husband’s income is far greater than
hers and he dissipated assets, thereby entitling her to a distributive award under R.C.
3105.171(E)(4).
{¶14} Postdecree attorney fees are governed by R.C. 3105.73, which states:
(B) 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’ incomes, the conduct of the parties, and any other
relevant factors the court deems appropriate, but it may not consider the
parties’ assets.
{¶15} This statute gives a trial court broad discretion to award attorney fees and
litigation expenses if it finds the award equitable. Cutter v. Cutter, 8th Dist. Cuyahoga
No. 96375, 2012-Ohio-358, ¶ 26. In deciding whether to award attorney fees, 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. Id. On
appeal, the trial court’s decision is reviewed under an abuse of discretion standard. Id.;
In re Contempt of Modic, 8th Dist. Cuyahoga No. 96598, 2011-Ohio-5396, ¶ 7, citing
State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69, 573 N.E.2d 62 (1991). The
reviewing court places great reliance upon the discretion of the judge, both in the finding
of contempt and the penalty imposed. Radford v. Radford, 8th Dist. Cuyahoga Nos.
96267 and 96445, 2011-Ohio-6263, ¶ 36; In re Contempt of Feng, 8th Dist. Cuyahoga
No. 95749, 2011-Ohio-4810, ¶ 54.
{¶16} Distributive awards are governed by R.C. 3105.171, which provides:
(E)(4) If a spouse has engaged in financial misconduct, including, but not
limited to, the dissipation, destruction, concealment, nondisclosure, or
fraudulent disposition of assets, the court may compensate the offended
spouse with a distributive award or with a greater award of marital property.
{¶17} A trial court has broad discretion to make a distributive award to a spouse in
order to compensate for the financial misconduct of the other spouse. Trolli v. Trolli,
8th Dist. Cuyahoga No. 101980, 2015-Ohio-4487, ¶ 50-51.
{¶18} The record clearly indicates that the trial court was aware of the large
disparity in the parties’ incomes — husband earns $130,000-140,000 per year, whereas
wife’s sole income is $4,500 monthly spousal support. The court noted, however, that
wife was awarded $25,000 for attorney fees during the 2013 divorce proceedings. In
analyzing whether a postdecree award was also justified, the magistrate found that, after
“considering the factors in R.C. 3105.73(B), * * * it is not equitable to award attorney’s
fees[.]” The court also analyzed the conduct of both parties at length and ultimately
found the wife, and not the husband, in contempt of the court’s orders.
{¶19} As to the issue of dissipation of assets in the PNC and Third Federal bank
accounts, the magistrate found:
The parties had already been litigating the enforcement of the transfer of the
financial accounts when the April 4, 2014 order [on remand] was issued.
In connection with that litigation the parties independently made an
agreement, which the Court ordered into effect on March 28, 2014, that
[husband] was to pay [wife] $40,184.53 “which represents [wife’s] full
share of the Ohio Catholic Credit Union account” and $29,542.29 “which
represents [wife’s] full share of the PNC accounts.” The parties further
stipulated that [husband’s attorney would pay wife $101,600 that had been
deposited into his IOLTA account]. * * *
[Wife] admitted that she received $40,184.53 and $29,542.29 by way of * *
* two checks. She also conceded that she received her 50% share of the
Third Federal accounts within a month of the decree. [Husband] testified it
was about $110,000. Her complaint now is that she did not receive the
interest that was due[.]
The Court finds that [wife] has not made a prima facie showing of
contempt[.]
{¶20} Similarly, as to the tax issues, the magistrate outlined the tax issues from
2010-2012, and that they entered into an agreement on March 28, 2014, setting forth the
manner in which those issues would be handled. Essentially, husband had a dispute
regarding the 2010 tax liability with the IRS and ultimately received a joint return refund
of $23,445. There was conflicting evidence in the record as to whether wife received
her share of this refund, but ultimately, wife admitted on cross-examination that she did
receive her share of this refund. The record also indicates that husband received and
kept joint return refunds of $4,208 for 2011, and $4,415 for 2012, and wife received and
kept a joint tax return refund of $3,080 in 2014. After thoroughly analyzing the
evidence and computing the relative liabilities, the magistrate concluded that husband
owed wife $2,539.13.
{¶21} In accordance with all of the foregoing, we find no abuse of discretion.
Both parties engaged in recriminations and neither party was as forthcoming with one
another nor with the court as they should have been. Ultimately, husband was not found
in contempt of court, but wife was found in contempt. Despite the disparity in incomes,
the trial court was well within its discretion to determine that wife was not entitled to
attorney fees.
{¶22} The first and second assignments of error are without merit.
Attorney Rabb’s Fee
{¶23} In her third assignment of error, wife argues that the trial court erred in
concluding that res judicata barred her from recovering Attorney Rabb’s fees incurred
prior to January 2013. The wife insists that the fees are from current postdecree motions
and were incurred from May 2013 to January 2014.
{¶24} The record does not support wife’s contentions. The magistrate permitted
Attorney Rabb to testify at length about his postdecree legal fees and expenses, and an
itemized fee statement was introduced into evidence. The magistrate found that Rabb’s
“total fees for post-decree representation * * * were $25,998.54, [including] time for an
associate and a paralegal, up until [wife] discharged him in early January 2013 [sic].”3
The magistrate further noted that “Rabb distinguished the portion of his total bill that
related to his post-decree representation in the matters relating to the alleged contempt
from other matters by placing a check mark on the invoices.” However, the court
concluded that an award of attorney fees for wife’s postdecree representation was not
equitable. The court likewise denied husband’s motion for postdecree attorney fees.
Having reviewed the record in its entirety, we conclude that the third assignment of error
lacks support in the record. Accordingly, it is without merit and is overruled.
April 16, 2014 Joint Notice of Dismissal
{¶25} In her fourth assignment of error, wife asserts that the trial court erroneously
held that the April 16, 2014 Joint Notice of Dismissal in which the parties agreed to pay
3
On page 4 of the decision, the magistrate correctly noted that Rabb was granted leave to
withdraw on January 22, 2014.
his or her own attorney fees bars her from recovering attorney fees incurred as of that
date. Wife complains that she did not sign this notice, and that the notice pertained only
to attorney fees for those particular motions.
{¶26} Where parties, who are represented by counsel, enter into agreements that
are read into the record, their agreements are enforceable. Thomas v. Thomas, 5 Ohio
App.3d 94, 101, 449 N.E.2d 478 (5th Dist.1982); Richmond v. Evans, 8th Dist. Cuyahoga
No. 101269, 2015-Ohio-870, ¶ 19.
{¶27} In this matter, the Joint Notice of Dismissal provides that wife, “by and
through counsel,” voluntarily dismissed and withdrew her May 17, 2013 and July 19,
2013 motions to show cause. The notice further indicates that the parties “stipulate that
the majority of the issues presented in said Motions have been resolved by agreement,”
and that each party would pay his or her own attorney fees. That provision was initialed
by both parties. The record additionally reveals that on December 16, 2014, the parties
again advised the court that they “resolved their differences by agreement,” and “waived
their rights under the Civil Rules.” Therefore, the record demonstrates that the wife
made a voluntary and deliberate choice to waive attorney fees incurred as of April 16,
2014, and the trial court was well within its discretion in giving full force and effect to
that agreement.
{¶28} The fourth assignment of error is without merit.
Attorney Smith’s Testimony
{¶29} In her fifth assignment of error, wife complains that the trial court erred in
refusing to permit Attorney Smith to testify about his attorney fees in this matter.
{¶30} The decision to admit or exclude evidence lies in the sound discretion of
the trial court. Gupta v. Gupta, 8th Dist. Cuyahoga No. 99005, 2013-Ohio-2203, ¶ 81.
Absent an issue of law, this court therefore reviews the trial court’s decision regarding
evidentiary matters under an abuse of discretion standard of review. Id. Moreover, in
Ohio, pro se litigants are bound by the same rules and procedures as those litigants who
retain counsel. Temple v. Temple, 8th Dist. Cuyahoga Nos. 83758 and 83797,
2005-Ohio-92, ¶ 78. They are not to be accorded greater rights and must accept the
results of their own mistakes and errors. Id.{¶31} In this matter, the record indicates that by the time of the hearing on all of
the outstanding postdecree motions, wife was represented by Attorney Asseff, and
Attorney Smith entered a limited appearance for the sole purpose of representing wife in
finding a buyer for the marital residence and completing a sales contract. The magistrate
subsequently learned that wife had terminated Attorney Asseff during the hearing. The
magistrate then excused Asseff and wife concluded her case pro se. After both parties
rested and the exhibits were admitted, wife sought to have Attorney Smith testify on the
issue of attorney fees. The magistrate refused to permit wife to introduce evidence after
the parties had both rested, noting that Attorney Smith had entered only a limited
appearance, and his name was not on the witness list. In light of the fact that Attorney
Smith represented wife only in connection with the sale of the home, we find no abuse of
discretion in the court’s refusal to permit him to testify to the larger issue of attorney fees.
Moreover, acting pro se, wife is held to the same standards as a licensed attorney.
{¶32} The fifth assignment of error is overruled.
{¶33} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court, domestic relations division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and
PATRICIA A. BLACKMON, J., CONCUR