Monnier v. Monnier ( 2011 )

[Cite as Monnier v. Monnier, 2011-Ohio-259.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTINA G. MONNIER JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 10 CA 118
TIMOTHY F. MONNIER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 06 DIV 0727
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 21, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS L. COLE GARY A. HOTZ
76 North Mulberry Street 24461 Detroit Road #209
Mansfield, Ohio 44902 Westlake, Ohio 44143
Richland County, Case No. 10 CA 118 2
Wise, J.
{¶1} Defendant-appellant Timothy F. Monnier (“husband”) appeals the
September 9, 2010, Judgment Entry entered by the Richland County Court of Common
Pleas, which overruled his objections and approved and adopted the Magistrate’s
September 9, 2010, Decision, and incorporated the Magistrate’s Findings of Fact as
order of the court.
{¶2} Plaintiff-appellee is Christina G. Monnier (“wife”).
STATEMENT OF THE CASE AND FACTS
{¶3} Husband and wife were married on September 26, 1981. No children
were born as issue of said union. On June 13, 2006, wife filed a Complaint for Divorce
in the Richland County Court of Common Pleas.
{¶4} The Judgment Entry Decree of Divorce was granted on May 23, 2007.
{¶5} Since that time, the parties have been back before the court on a number
of different issues.
{¶6} On May 18, 2010, the parties came before the court on a post-decree
hearing to decide issues relative to Husband’s Executive Retirement Plan and Salaried
Retirement Program. Requests for attorney fees were filed by both parties.
Additionally, both parties stipulated that the attorney fees incurred by the other were
reasonable.
{¶7} On June 16, 2010, the Magistrate entered his Decision which, inter alia,
awarded attorney fees in the amount of $5,000.00 to Appellee.
Richland County, Case No. 10 CA 118 3
{¶8} On June 29, 2010, Husband filed Objections to the Magistrate’s Decision.
On July 19, 2010, Wife filed her Response to Husband’s Objections. On August 10,
2010, Husband filed his Reply to Appellant’s Response.
{¶9} By Judgment Entry filed September 9, 2010, the trial court approved and
adopted the Magistrate’s Decision.
{¶10} It is from this Judgment Entry Husband appeals, raising the following
assignment of error:
ASSIGNMENT OF ERROR
{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY AFFIRMING THE
DECISION OF THE MAGISTRATE AWARDING ATTORNEY FEES TO THE
APPELLEE.”
{¶12} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶13} “(E) Determination and judgment on appeal. The appeal will be
determined as provided by App. R. 11.1. It shall be sufficient compliance with App. R.
12(A) for the statement of the reason for the court's decision as to each error to be in
brief and conclusionary form. The decision may be by judgment entry in which case it
will not be published in any form.”
{¶14} This appeal shall be considered in accordance with the aforementioned
rule.
I.
{¶15} In his sole assignment of error, husband maintains the trial court abused
its discretion in awarding attorney fees to wife. We disagree.
Richland County, Case No. 10 CA 118 4
{¶16} Revised Code §3105.73(B) affords a domestic relations court with the
power to award attorney fees and litigation expenses in post-decree matters where it
deems equitable. Specifically, R.C. §3105.73(B) states:
{¶17} “(B) In any post-decree motion or proceeding that arises out of an action
for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that
motion or proceeding, 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.”
{¶18} In the case sub judice, the Magistrate stated:
{¶19} “Defendant has incurred attorney fees of $11,887.50, while Plaintiff has
incurred attorney fees in this case of $16,410. The expenditure of these fees was
reasonable and appropriate. Based upon his substantially higher income, it is
reasonable and appropriate to require Defendant to pay a sum of $5,000.00 toward
Plaintiff’s attorney fees.”
{¶20} Appellant argues that the trial court made this award of attorney fees
without any evidence before it as to the respective incomes of the parties.
{¶21} Our review of a trial court's decision relative to attorney fees is governed
by an abuse of discretion standard. Howell v. Howell, 167 Ohio App. 3d 431, 855 N.E.2d
533, 2006-Ohio-3038. We cannot substitute our judgment for that of the trial court
unless, when considering the totality of the circumstances, the trial court abused its
discretion. Holcomb v. Holcomb (1989), 44 Ohio St. 3d 128, 541 N.E.2d 597. In order to
Richland County, Case No. 10 CA 118 5
find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore (1983) 5 Ohio St. 3d 217, 450 N.E.2d 1140.
{¶22} Upon review, we find that in the instant case, the magistrate had before
him evidence as to Appellant’s monthly pension benefit which was initially $8,226.65
and then later reduced to $7,379.62 after he elected his current wife to receive the
surviving spouse benefit in contravention of the divorce decree.
{¶23} We further find that the trial court was familiar with the parties and their
financial situations based on earlier proceedings in this case and the entire record
before it. The court has the power to take judicial notice of its own records and judicial
notice of its own actions in earlier proceedings of the same case. Diversified Mortgage
Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App. 3d 157, 159, 454
N.E.2d 1330.
{¶24} Appellant further argues that the trial court abused its discretion in citing
Appellant’s conduct in support of the attorney fee award. In its Judgment Entry, the trial
court held:
{¶25} “The Court considers the award of attorney fees of Five Thousand
($5,000) Dollars to be equitable. The responsibility for the preparation of the original
Qualified Domestic Relations Order was the Defendants. The disagreement primarily
before the Court was driven by the Defendant’s actions in naming his new wife as
beneficiary, thus reducing the amount to which the Plaintiff was by Judgment Entry
entitled. The legal costs involving the Qualified Domestic Relations Order have been
substantial on both sides. Defendant’s bill for his legal services was $11,887.59, more
Richland County, Case No. 10 CA 118 6
than twice the award. But for the delay in obtaining the Qualified Domestic Relations
Order and the unilateral action of the Defendant that reduced the Plaintiff’s entitlement,
Plaintiff would not have incurred additional legal expense.”
{¶26} As set forth above, R.C. §3105.73(B) allows the trial court to consider both
the income and the conduct of the parties when granting or denying a request for
attorney fees.
{¶27} Under these circumstances, we find that the trial court acted within its
discretion under R.C. §3105.73(B) in awarding $5,000.00 toward the attorney fees
incurred by Appellee.
{¶28} Husband’s sole assignment of error is overruled.
{¶29} For the foregoing reasons, the Judgment of the Court of Common Pleas,
Domestic Relations Division, Richland County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
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___________________________________
___________________________________
JUDGES
JWW/d 0113
Richland County, Case No. 10 CA 118 7
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CHRISTINA G. MONNIER :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TIMOTHY F. MONNIER :
:
Defendant-Appellant : Case No. 10 CA 118
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Domestic Relations Division, Richland County,
Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES