Neumann v. Neumann , 2012 Ohio 591 ( 2012 )

[Cite as Neumann v. Neumann, 2012-Ohio-591.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96915
PAMELA S. NEUMANN
PLAINTIFF-APPELLEE
vs.
PAUL NEUMANN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-328194
BEFORE: Cooney, J., Blackmon, A.J., and Sweeney, J.
RELEASED AND JOURNALIZED: February 16, 2012
FOR APPELLANT
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Paul Neumann, pro se
24243 Lebern Drive
North Olmsted, OH 44070
ATTORNEYS FOR APPELLEE
Heather L. Corso
Jennifer L. Malensek
The Bradley Building
1200 West Sixth Street
Suite 502
Cleveland, OH 44113
GUARDIAN AD LITEM
Jacob A.H. Kronenberg
Kronenberg & Belovich Law, LLC
635 West Lakeside Avenue
Suite 605
Cleveland, OH 44113
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Paul Neumann (“Paul”), pro se, appeals the court’s
judgment entry of divorce. Finding no merit to the appeal, we affirm.
{¶2} Paul and plaintiff-appellee, Pamela S. Neumann (“Pamela”), were married
in 2004. The two had one minor child born in 2005. Pamela separated from Paul and
filed for divorce in 2009. The child remained primarily with Pamela after the
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separation. Shortly after the separation, Pamela was awarded a one-year protection
order as a result of her menacing by stalking charge against Paul.
{¶3} In May 2011, the court issued a final determination, in which the court
named Pamela the residential parent and legal custodian. The court set forth a shared
parenting agreement, granted Pamela child support, and awarded her attorney fees.
{¶4} Paul now appeals from this entry, raising three assignments of error.
Attorney Fees
{¶5} In his first assignment of error, Paul argues that the trial court abused its
discretion in awarding attorney fees to Pamela.
{¶6} Our review of the award of attorney fees is limited to determining (1)
whether the factual considerations upon which the award was based are supported by the
manifest weight of the evidence, or (2) whether the domestic relations court abused its
discretion. Gourash v. Gourash, 8th Dist. Nos. 71882 and 73971, 1999 WL 684889(Sept. 2, 1999), citing Oatey v. Oatey, 83 Ohio App.3d 251, 614 N.E.2d 1054 (1992).
{¶7} R.C. 3105.73(A), which governs attorney fee awards in domestic relations
cases, provides:
In an action for divorce * * * 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
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income, any award of temporary spousal support, the conduct of the parties,
and any other relevant factors the court deems appropriate.
{¶8} The trial court found that an award of attorney fees for Pamela was justified
in the instant case. Pamela’s fees totaled $17,077, and the court awarded $7,500 in lieu
of spousal support. In support of its award, the court cited Paul’s “overall lack of
cooperation and compliance with discovery and trial orders.” The court also noted
Paul’s failure to comply with Pamela’s discovery requests and his untimely affidavits that
contained substantive errors.
{¶9} In addition, the court considered whether all of the legal services were
necessary and the amount of time expended on those services. Counsel’s reduced hourly
rates were reasonable and commensurate with the customary fees in this locality.
Therefore, we find that the award of attorney fees was supported by competent, credible
evidence and was not an abuse of discretion.
{¶10} Accordingly, the first assignment of error is overruled.
Custody
{¶11} In his second assignment of error, Paul argues that the trial court abused
its discretion when it awarded him less than equal custody.
{¶12} Paul argues that he is entitled to an equal time shared parenting plan.
However, he did not file a shared parenting plan with the court, nor does he support his
claim for equal time with any statutory authority. R.C. 3109.04 provides that when
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neither parent files a plan for shared parenting, the court has jurisdiction to allocate
parental rights in the best interest of the child. R.C. 3109.04 states:
(A) In any divorce, legal separation, or annulment proceeding and in any
proceeding pertaining to the allocation of parental rights and responsibilities
for the care of a child, upon hearing the testimony of either or both parents
and considering any mediation report filed pursuant to section 3109.052 of
the Revised Code and in accordance with sections 3127.01 to 3127.53 of
the Revised Code, the court shall allocate the parental rights and
responsibilities for the care of the minor children of the marriage. Subject to
division (D)(2) of this section, the court may allocate the parental rights and
responsibilities for the care of the children in either of the following ways:
(1) If neither parent files a pleading or motion in accordance with division
(G) of this section, if at least one parent files a pleading or motion under
that division but no parent who filed a pleading or motion under that
division also files a plan for shared parenting, or if at least one parent files
both a pleading or motion and a shared parenting plan under that division
but no plan for shared parenting is in the best interest of the children, the
court, in a manner consistent with the best interest of the children, shall
allocate the parental rights and responsibilities for the care of the children
primarily to one of the parents, designate that parent as the residential
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parent and the legal custodian of the child, and divide between the parents
the other rights and responsibilities for the care of the children, including,
but not limited to, the responsibility to provide support for the children and
the right of the parent who is not the residential parent to have continuing
contact with the children.
{¶13} R.C. 3109.04(F) provides relevant factors for the court to consider.
Having reviewed the judgment entry, this court finds that the trial court considered each
element of R.C. 3109.04(F)(1) and (2) when determining the best interest of the child.
Having addressed each element, the court found that it was in the child’s best interest to
make Pamela the residential parent and legal custodian, in addition to setting forth a
detailed shared parenting schedule. Therefore, we find that the trial court’s shared
parenting plan was not an abuse of discretion.
{¶14} Accordingly, the second assignment of error is overruled.
Temporary Spousal Support
{¶15} In his third assignment of error, Paul argues that the trial court abused its
discretion when it awarded temporary spousal support to Pamela without a proven need
and without a full evidentiary hearing.
{¶16} A trial court has considerable latitude when determining the amount of
spousal support to award in a divorce proceeding. Bolinger v. Bolinger, 49 Ohio St.3d
120, 122, 551 N.E.2d 157 (1990). A trial court’s decision regarding spousal obligations
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will not be reversed on appeal absent an abuse of discretion. Pauly v. Pauly, 80 Ohio
St.3d 386, 390, 686 N.E.2d 1108 (1997); Cherry v. Cherry, 66 Ohio St.2d 348, 421
N.E.2d 1293 (1981). So long as the decision of the trial court is supported by some
competent, credible evidence going to all the essential elements of the case, we will not
disturb it. Masitto v. Masitto, 22 Ohio St.3d 63, 66, 488 N.E.2d 857 (1986). “Since it
is axiomatic that a trial court must have discretion to do what is equitable upon the facts
and circumstances of each case, it necessarily follows that a trial court’s decision in
domestic relations matters should not be disturbed on appeal unless the decision involves
more than an error of judgment.” Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d
1028 (1989).
{¶17} R.C. 3105.18(B) authorizes the trial court to award reasonable temporary
spousal support to either party during the pendency of any divorce or legal separation
proceeding. When determining whether spousal support is appropriate and reasonable,
the court must consider the factors set forth in R.C. 3105.18(C). The trial court is not
required to comment on each statutory factor; the record need only show that the court
considered the statutory factors when making its award. Carman v. Carman, 109 Ohio
App.3d 698, 703, 672 N.E.2d 1093 (1996). Civ.R. 75(N)(1) authorizes the trial court to
grant spousal support pendente lite to either party without oral hearing upon the filing of a
motion and supporting affidavit. The other party may then file counter affidavits within
14 days of the filing of the motion. Civ.R. 75(N)(2).
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{¶18} On September 29, 2009, Pamela moved for spousal support pendente lite
and attached a supporting affidavit. Paul filed an answer and an affidavit in reply to her
motion without objection to her request. Her motion was granted on January 21, 2010.
The trial court based its order of temporary support on Pamela’s income of $0 and Paul’s
income of $75,200. Based on these figures, the trial court determined that a temporary
spousal support award of $1,734 per month was appropriate.
{¶19} On February 23, 2010, Paul filed an application for a Civ.R. 75(N)
hearing. A hearing was scheduled and reset several times until the final date set for trial.
The court allowed Paul to fully cross-examine Pamela on this issue at trial.
{¶20} Paul argues that the trial court erred in awarding temporary spousal
support to Pamela. However, Paul never produced evidence to rebut the temporary
support order. Moreover, the trial court’s judgment entry of divorce does not continue
spousal support. Thus, we find no abuse of discretion in the temporary support order or
the manner in which the court determined the appropriate amount.
{¶21} Accordingly, the third assignment of error is overruled.
{¶22} Judgment 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 domestic
relations court to carry this judgment into execution.
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A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
___________________________________________________
COLLEEN CONWAY COONEY, JUDGE
PATRICIA ANN BLACKMON, A.J., and
JAMES J. SWEENEY, J., CONCUR