Durisala v. Durisala , 2014 Ohio 5229 ( 2014 )

[Cite as Durisala v. Durisala, 2014-Ohio-5229.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
RAO DURISALA, : APPEAL NO. C-130830
TRIAL NO. DR0901795
Plaintiff-Appellee, :
vs. : O P I N I O N.
KALA RANI DURISALA, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: November 26, 2014
Katzman, Logan, Halper, & Bennett and Kenneth Flacks, for Plaintiff-Appellee,
King, Koligian & Associates, and Stephen R. King, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Defendant-appellant Kala Rani Durisala (“Rani”), appeals the trial
court’s judgment granting her and plaintiff-appellee Rao Durisala a divorce. On
appeal, she argues that the trial court erred in imputing only minimum-wage income
to Rao for purposes of calculating his child-support obligation. She also argues that
the trial court erred when it failed to require Rao to pay attorney fees and costs in
conjunction with its finding of contempt under R.C. 3109.05(C) for his failure to pay
child support. She further argues that the trial court erred by failing to award her
reasonable attorney fees under R.C. 3105.73(B). Finally, she argues that the trial
court erred when it ordered accountings and limitations regarding custodial accounts
she had established for their minor child’s education.
{¶2} After reviewing the record and the law, we conclude the trial court
failed to comply with the mandatory provision under R.C. 3109.05(C), requiring the
court to award Rani her reasonable attorney fees and costs following its finding of
contempt. We also conclude that the trial court lacked jurisdiction to enter orders
requiring Rani to provide Rao with annual statements of their minor daughter’s
custodial accounts and to hold the funds in her daughter’s custodial accounts until
her daughter’s graduation from high school. As a result, we remand the matter to the
trial court for a determination of Rani’s reasonable attorney fees and costs in relation
to the contempt motion, and for the trial court to remove the orders relating to their
minor daughter’s custodial accounts. We affirm the trial court’s judgment in all
other respects.
Trial Court Proceedings
{¶3} Rao and Rani were married in India on October 2001, roughly ten
days after meeting one another. Following the wedding, Rao’s father sponsored
2
OHIO FIRST DISTRICT COURT OF APPEALS
Rani’s residence in the United States and declared financial responsibility for her. In
2002, Rao and Rani had a daughter.
{¶4} In August 2009, Rao filed a complaint for divorce against Rani.
Rani filed an answer. Over the next four years, the parties filed various motions.
Following multiple lengthy and prolonged hearings, the magistrate filed a decision
with findings of fact and conclusions of law. Rani filed timely objections to the
magistrate’s decision. On September 27, 2013, the trial court entered its decision on
the objections. The trial court journalized the decree of divorce on November 19,
2013. Rani has appealed, raising four assignments of error.
Rao’s Income for Child Support
{¶5} In her first assignment of error, Rani argues that the trial court
erred in calculating Rao’s income at minimum wage for purposes of child support.
She argues that the trial court should have imputed more income to Rao, because the
record demonstrates that he has the ability to earn more money.
{¶6} For purposes of calculating child-support obligations, the trial
court must determine the annual income for each parent. R.C. 3119.01(C)(5)(b)
provides that “income” for a parent who is unemployed or underemployed consists of
the sum of the gross income of the parent and any “potential income” of the parent.
If the trial court finds that a parent is unemployed or underemployed, it must
consider the nonexclusive list of factors set forth in R.C. 3119.01(C)(11) in
determining the amount of potential income to impute to the parent.
{¶7} The determinations of whether a parent is voluntarily unemployed
and the amount of “potential income” to be imputed to him as a child-support
obligor, if any, are factual questions to be determined by the trial court based on the
circumstances of each particular case. See Cwik v. Cwik, 1st Dist. Hamilton No. C-
3
OHIO FIRST DISTRICT COURT OF APPEALS
090843, 2011-Ohio-463, ¶ 94; Rock v. Cabral, 67 Ohio St. 3d 108, 112, 616 N.E.2d
218 (1993). The trial court’s determination as to these issues will not be disturbed
on appeal absent an abuse of discretion. Id.
{¶8} The record supports the trial court’s decision to impute full-time
minimum-wage income to Rao. He has a high school education, and has been a full-
time student at the University of Cincinnati since August 2009. He testified that he
receives student aid and loans from his parents to pay for his education and living
expenses. There was no evidence as to the amount of the loans Rao has received
from his parents, or that he would continue to receive loans on a regular basis.
{¶9} The trial court noted that during the marriage, Rao’s income
varied. From 2001-2004, he earned no income. In 2004, he earned $15,000 in
income. In 2005, he earned no income. In 2006, he earned $10,000 in income. In
2007, he earned $48,000. In 2008, he earned $22,100. In 2009, Rao earned
$17,157. In 2010, he earned $24,754 in unemployment benefits. In 2011 and 2012,
he earned virtually no income. He testified that he hoped to receive a bachelor’s
degree in 2013.
{¶10} While Rao earned $48,000 in 2007, the record supports the trial
court’s decision to impute full-time minimum-wage annual income of $16,300 to
Rao given his current status as a student, his educational background, and his
historical earning ability during the parties’ marriage. Thus, we cannot say the trial
court abused its discretion by imputing full-time minimum-wage income to Rao.
We, therefore, overrule Rani’s first assignment of error.
4
OHIO FIRST DISTRICT COURT OF APPEALS
Failure to Award Attorney Fees under R.C. 3109.05(C)
{¶11} In her second assignment of error, Rani argues that the trial court
erred in failing to award her attorney fees and costs as mandated by R.C. 3109.05(C)
once it had found Rao in contempt for failing to pay child support.
{¶12} R.C. 3109.05(C) provides:
If any person required to pay child support under an order made
under division (A) of this section on or after April 15, 1985, or
modified on or after December 1, 1986, is found in contempt of court
for failure to make support payments under the order, the court that
makes the finding, in addition to any other penalty imposed, shall
assess all court costs arising out of the contempt proceeding against
the person and require the person to pay any reasonable attorney’s
fees of any adverse party, as determined by the court, that arose in
relation to the act of contempt, and on or after July 1, 1992, shall
assess interest on any unpaid amount of child support pursuant to
section 3123.17 of the Revised Code.
{¶13} Although the trial court found Rao in contempt, it adopted the
magistrate’s decision which had denied Rani’s request for attorney fees and costs.
Because the trial court sustained Rani’s objection and determined that the magistrate
should have found Rao in contempt, the trial court was required by R.C. 3109.05(C) to
assess all court costs arising out of the contempt proceeding against Rao and to require
him to “pay any reasonable attorney’s fees as determined by the court.” Thus, upon
finding Rao in contempt, the trial court should have determined what Rani’s reasonable
attorney fees were and awarded those fees to Rani accordingly. See Sinnott v. Sinnott,
10th Dist. Franklin No. 02AP-1277, 2003-Ohio-4571, ¶ 6-8; Olesky v. Olesky, 8th Dist.
5
OHIO FIRST DISTRICT COURT OF APPEALS
Cuyahoga No. 82646, 2003-Ohio-5657, ¶ 41-43; Roush v. Brown, 12th Dist. Butler No.
CA2008-11-275, 2009-Ohio-2446, ¶ 22-24 and 31. We, therefore, sustain Rani’s second
assignment of error.
Attorney Fees
{¶14} In her third assignment of error, Rani argues the trial court erred
in denying her request for attorney fees and litigation expenses during the divorce
proceedings.
{¶15} R.C. 3105.73(A) provides
[i]n an action for divorce * * * 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 income, any award of temporary spousal support, the
conduct of the parties, and any other relevant factors the court
deems appropriate.
A trial court’s decision regarding an award of attorney fees in a divorce proceeding is
a matter within its sound discretion. Lemarr v. Lemarr, 1st Dist. Hamilton No. C-
100706, 2011-Ohio-3682, ¶ 13.
{¶16} Rani argues that the trial court erred in denying her motion for
attorney fees without considering the entire spectrum of the parties’ actions during
the divorce proceedings. She argues that the magistrate and the trial court focused
primarily upon her financial decision-making near the end of the marriage and
following their separation, and did not similarly account for Rao’s conduct during the
divorce proceedings. She argues that Rao unnecessarily prolonged the litigation and
caused her to incur unnecessary legal fees by repeatedly changing counsel during the
6
OHIO FIRST DISTRICT COURT OF APPEALS
proceedings, filing inconsistent motions regarding the need for psychological
evaluations, repeatedly moving to modify his parenting time, and repeatedly filing
motions to hold her in contempt for failing to comply with the court’s parenting
order. Thus, she asserts, the trial court should have awarded her attorney fees based
upon the undue delay he had caused in the divorce proceedings.
{¶17} The record reflects that the divorce was a highly litigious matter
and both parties engaged in extensive disputes over the life of the case. The trial
court found that the magistrate’s determination that Rani was not entitled to
attorney fees was appropriate given that both parties had contributed to the delay in
the proceedings. Moreover, the trial court’s decision to award Rao $5,000 in
attorney fees was based solely upon its conclusion that Rani had engaged in financial
misconduct during the marriage. Having reviewed the record, we cannot conclude
that the trial court abused its discretion in denying Rani’s motion for attorney fees.
We, therefore, overrule her third assignment of error.
Custodial Accounts
{¶18} In her fourth assignment of error, Rani argues that “the trial court
erred in ordering accountings and limitations regarding custodial accounts of the
parties’ minor child.”
{¶19} The trial court ordered Rani to provide annual statements to Rao
on December 31st of each year regarding the balances of several bank accounts in
their daughter’s name. It also ordered Rani, as the custodian of the accounts, to
preserve the funds in those accounts as of February 13, 2014, so that their minor
daughter can access the funds for her educational expenses when she graduates from
high school. The record reflects that these banks accounts were funded with marital
money and were designated as Ohio’s Uniform Transfers to Minors Act accounts.
7
OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Rani argues that the trial court lacked jurisdiction to enter the
orders relating to the accounts because they were her daughter’s separate property.
We agree.
{¶21} A custodial account that is held for the benefit of a child is solely
the property of the minor child and is neither marital property nor separate property
of the child’s parents. See R.C. 5814.03; Brown v. Brown, 12th Dist. Madison No.
CA2008-08-021, 2009-Ohio-2204, ¶ 50. Furthermore, the Ohio Uniform Transfers
to Minors Act provides that any changes to or regulation of custodial accounts must
be made by a probate court, rather than a domestic relations court. See Brown at ¶
50, citing Ramus v. Ramus, 8th Dist. Cuyahoga No. 34965, 1976 Ohio App. LEXIS
7431 (Aug. 19, 1976).
{¶22} Thus, once the trial court determined that the bank accounts were
neither separate nor marital property, but were custodial accounts that belonged to
their minor daughter, it lacked the jurisdiction to enter any further orders regarding
the accounts. See id. As a result, we conclude that the trial court erred in ordering
Rani to provide Rao with annual statements of their minor daughter’s custodial
accounts and to preserve the accounts so that her daughter could access those funds
for her educational expenses upon her graduation from high school. Therefore, we
sustain Rani’s fourth assignment of error.
Conclusion
{¶23} Having found merit in Rani’s second and fourth assignments of
error, we reverse that part of the trial court’s judgment that failed to award attorney
fees and costs upon its finding that Rao was in contempt for failing to pay child
support. We also reverse that part of the trial court’s judgment ordering Rani to
provide Rao with annual statements of their minor daughter’s custodial accounts and
8
OHIO FIRST DISTRICT COURT OF APPEALS
ordering her to preserve the funds in the custodial accounts for their daughter’s
college education. We remand this cause to the trial court for the court to determine
and award Rani’s reasonable attorney fees and costs in relation to the contempt
motion and to remove the requirements that Rani must provide Rao with annual
statements for the accounts and preserve the funds in their daughter’s custodial
accounts for her college education. We affirm the trial court’s judgment in all other
respects.
Judgment affirmed in part, reversed in part, and cause remanded.
CUNNINGHAM, P.J, and DEWINE, J., concur.
Please note:
The court has recorded its own entry this date.
9