Sharif v. Sharif , 2022 Ohio 2856 ( 2022 )

[Cite as Sharif v. Sharif, 2022-Ohio-2856.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
BRIDGETTE C. SHARIF, : APPEAL NO. C-210472
TRIAL NO. DR-1300044
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
ZULFIKAR A. SHARIF, :
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: August 17, 2022
Taft, Stettinius & Hollister and Aimee L. Keller, for Plaintiff-Appellee,
Barbara J. Howard Co., LPA, and Barbara Howard, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Zulfikar A. Sharif (“father”) appeals the judgment
of the Hamilton County Court of Common Pleas, Domestic Relations Division, raising
three assignments of error for the court’s review. For the reasons that follow, we affirm
the judgment of the domestic relations court in part, reverse it in part, and remand the
matter for further proceedings consistent with the law and this opinion.
Factual and Procedural Background
{¶2} Plaintiff-appellee Bridgette C. Sharif (“mother”) filed a complaint for
divorce from father in 2013. In 2014, the court journalized a decree of divorce and a
decree of shared parenting, which named both parents as residential parent and legal
custodian of their two children.
{¶3} Parenting time and child support were established through a joint plan
for shared parenting, though both have been modified several times since. Per a 2015
agreed entry, father’s child support was set at $4,845 per month payable to mother.
Before this litigation, father had alternating weekends with the children, and Monday
evenings until Wednesday morning each week.
{¶4} On November 20, 2020, father filed a “motion to modify child support
and to terminate reimbursement for childcare expenses.” On April 2, 2021, father filed
a motion to modify parenting time. Essentially, he sought to add additional parenting
time on Mondays in the summer after his weekend parenting time.1
{¶5} On April 9, 2021, mother filed a motion to modify parenting time.
Mother moved the court to “order that the children remain with Mother Monday
1Father’smotion also asked for modifications to the holiday-time arrangement, though father only
appeals the denial of his motion to modify “the routine parenting time schedule.”
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overnights during the summer and on school holidays.”2 Mother also requested
attorney fees.
{¶6} On May 25, 2021, a hearing was held before a magistrate. On July 2,
2021, the magistrate entered a decision on all the pending motions. The magistrate
recommended denying mother’s motion to modify parenting time; granting father’s
motion to modify parenting time in part such that the children would stay with father
all day on Mondays in the summer; denying father’s motion to terminate
reimbursement for childcare expenses; and granting father’s motion to modify child
support. The magistrate did not award attorney fees.
{¶7} Mother timely objected to the magistrate’s decision, raising five
objections. First, mother argued that it was error for the magistrate to grant the motion
to modify child support because the parties had already come to an agreement on that
issue and had informed the magistrate of their agreement at the hearing. Mother
attached two unsigned agreed entries to her objections, along with emails regarding the
agreement that had been exchanged by the parties’ attorneys. Mother further argued
that her motion to modify parenting time should have been granted; father’s motion
should have been denied; the holiday schedule was not in the children’s best interest;
and father should have been ordered to pay attorney fees.
{¶8} On September 3, 2021, the court sustained all five objections. In
sustaining the objections, the court stated that it “adopts the Agreed Entry detailing the
parties’ child support agreement attached to Plaintiff’s Objection and effective April 1,
2021” and ordered the parties to “submit the finalized and signed support agreement.”
2 Mother’s motion also discussed holiday time.
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The court also modified the parenting-time schedule in favor of mother and ordered
father to pay $20,000 towards mother’s attorney fees.
{¶9} Father timely appealed from that order, raising three assignments of
error for our review concerning parenting time, attorney fees, and child support.
Parenting Time
{¶10} In his first assignment of error, Father contends that the trial court
erred by modifying the parenting-time schedule in favor of mother. The parenting-time
issue relevant to this appeal is rather narrow and involves only Mondays in the summer
and when the children do not have school. In short, both mother and father wanted
parenting time on Mondays during the summer.
{¶11} The court added Mondays during the summer to mother’s schedule and
ordered that father’s weekday parenting time be modified so that it now begins on
Tuesday morning, rather than Monday evening. Previously, the children went to mother
on Monday morning after father’s weekends with them, before returning to father that
evening for his weekday parenting time which continued until Wednesday morning.
{¶12} Father’s motion asked the court to modify the schedule so that the
children stayed with him all day Monday following his weekends, leading into his
weekday parenting time. He argues that his proposed change would have reduced
transitions and allowed each parent to spend quality time with the children. Mother
counters that the schedule modification ordered by the court actually accomplished that
goal.
{¶13} We review modifications to shared-parenting plans for an abuse of
discretion. Dennis v. Dennis, 1st Dist. Hamilton No. C-210370, 2022-Ohio-1216, ¶ 14,
citing Marimon v. Marimon, 1st Dist. Hamilton No. C-210137, 2021-Ohio-3437, ¶ 23,
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citing Hall v. Hall, 4th Dist. Adams No. 16CA1030, 2017-Ohio-8968, ¶ 19. An abuse of
discretion “implies that the trial court’s decision was unreasonable or arbitrary.” Kane
v. Hardin, 1st Dist. Hamilton No. C-180525, 2019-Ohio-4362, ¶ 6, citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶14} A modification to parenting time is a modification to a shared-parenting
plan. See Bruns v. Green, 163 Ohio St.3d 43, 2020-Ohio-4787, 168 N.E.3d 396, ¶ 19
(explaining that shared-parenting plans “[i]nclude agreements concerning parenting
time, holiday visitation, school and daycare placement, and payment of childcare
expenses”). And shared-parenting plans are modified pursuant to R.C.
3109.04(E)(2)(b). See Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876
N.E.2d 546 (holding that “R.C. 3109.04(E)(2)(b) permits a court to modify the terms of
the plan for shared parenting”).
{¶15} R.C. 3109.04(E)(2)(b) provides that the terms of the plan for shared
parenting may be modified so long as the modification is in the best interest of the
children. While a court must consider the children’s best interest under R.C.
3109.04(E)(2)(b), it is “not required to specifically consider the factors enumerated in
R.C. 3109.04(F)(1).” Marimon v. Marimon, 1st Dist. Hamilton No. C-210137, 2021-
Ohio-3437, ¶ 22 (“[N]othing in R.C. 3109.04(E)(2)(b) explicitly requires the trial court
to examine the factors in R.C. 3109.04(F)(1), and R.C. 3109.04(F)(1) by its terms applies
to ‘an original decree allocating parental rights and responsibilities for the care of
children or a modification of a decree allocating those rights and responsibilities’—not
modifications of terms of the shared-parenting plan.”).
{¶16} The trial court found that mother “showed that it is in the best interest
of the children to be with [her] overnight on weekends they are not in school to provide
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continuity and reduce transitions.” The court noted that mother does not work on
Mondays, but father does, albeit remotely, and concluded that the children could do
more activities with mother. The court concluded that “[i]t is in the best interest of the
children to minimize parenting time exchanges” and “to be with a parent who does not
work on Mondays during the summer for maximum quality time rather than with a
parent who is working, even remotely.”
{¶17} Father testified that his new job, which began in September 2020, gave
him significant flexibility, such that he now works remotely with flexible hours,
“wherever [he has a] secured internet connection and a computer.” Father went on to
testify that with his new job, “[t]he hours are flexible. It’s more a matter of completing
the workload for any one particular day.” So, if father wanted to take time off on a
Monday, he “would finish half of the claims that needed to be finished on Sunday night.
And then, you know, finish that Monday morning early in the morning, and then do
what I wanted for the rest of the day.”
{¶18} He testified that, for the sake of “continuity,” the schedule would be
easier on the children because they could stay in one place during the day, rather than
going to their mother’s house, before returning to his house at 4:00 p.m. Father
testified that this would be a return to the same continuity that the children have during
the school year, because during that time, the children leave his house Monday morning,
go to school, and return to his house after school.
{¶19} Father testified that he was not trying to take any time away from
mother, stating:
I think having them stay at the parent’s house on Monday where they
were the weekend before is clearly in their best interest because it allows
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less transition for the children. It allows them to sleep in at both houses,
if that is able to happen. It allows them to stay up later at night on the
night before a day off. * * * [S]o I think from those standpoints, it would
be less transition and allowing the children more freedom to do
something on Sunday night, I think, is in their best interest.
{¶20} Mother is a pharmacist who works on Tuesdays, Wednesdays, and
Fridays. She testified that she has had that schedule for approximately seven years,
which allows her to focus on the children all day Monday without any other priorities.
Mother testified that she has “a hundred percent of [her] time devoted to the children
on Mondays. Zero commitment.” She testified that she was concerned that if father’s
motion was granted then “the kids would be stuck * * * at home * * * because even though
he has flexibility, he is still working.”
{¶21} Mother testified that the children do not normally sleep in because they
have early morning swim practice and “thrive on maintaining a routine.” She stated that
on those Mondays, she picks the children up in the morning from father and either takes
them straight to swim practice, or they do activities together. Mother testified that “[t]he
only problem is that it is always cut short because the end time is 4:00 [p.m.]” which
requires them to “leave friends or leave activities early because of that time.”
{¶22} Based on this testimony, the court’s decision to modify the schedule in
favor of mother was not an abuse of discretion. The testimony at the hearing
demonstrated that while father does have flexibility with his work schedule, his work
would need to be done at some point—typically on Sunday or early Monday morning
before the children woke up. On the other hand, mother does not work at all on
Mondays, and can dedicate the entire day to the children. The court’s conclusion that
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OHIO FIRST DISTRICT COURT OF APPEALS
father’s remote work would still take time away from the children was not unreasonable,
as is it difficult to imagine that father could consistently complete such a significant
amount of work outside of normal business hours and while the children were sleeping.
Overall, the court’s conclusion that quality time would be maximized by spending all day
Monday with mother was not an abuse of discretion.
{¶23} The court’s finding on minimizing parenting-time exchanges is less
clear, but is not unreasonable. While the court does not explain how parenting-time
exchanges are minimized, the modified schedule does reduce the number of exchanges
taking place on Mondays over a short period of time.
{¶24} The first assignment of error is overruled.
Attorney Fees
{¶25} In his second assignment of error, father argues that the trial court erred
in ordering him to pay mother attorney fees because mother did not present evidence of
the reasonableness of the fess. Father contends that mother “presented no evidence
regarding attorney fees beyond the income of the parties and Mother’s identification of
her attorney fee statement.”
{¶26} Mother counters that the court properly relied on the income of the
parties and took judicial notice of counsel’s qualifications. Mother contends that the
court could determine reasonableness based on “its years of experience with all cases
and all attorneys.”
{¶27} This court reviews a trial court’s award of attorney fees for an abuse of
discretion. Rummelhoff v. Rummelhoff, 1st Dist. Hamilton Nos. C-210112 and
C-210176, 2022-Ohio-1224, ¶ 46, citing Burroughs v. Burroughs, 1st Dist. Hamilton
Nos. C-990001 and C-990031, 2000 Ohio App. LEXIS 868 (Mar. 10, 2000).
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{¶28} R.C. 3105.73(B) provides that:
In any post-decree motion or proceeding that arises out of an action for
divorce * * * the court may award all of part of reasonable attorney’s fees
and litigation expenses * * * if the court finds the award equitable * * *
consider[ing] the parties’ income, the conduct of the parties, and any
other relevant factors the court deems appropriate [not including the
parties’ assets].
{¶29} Local Rule 17.1 of the Hamilton County Rules of Practice of the Court of
Common Pleas for the Domestic Relations Division (“Loc.R. 17.1”) also requires specific
testimony prior to the awarding of attorney fees on issues such as the complexity of the
case, attorney experience, and the parties’ income.3
{¶30} This court has previously held that prior to awarding fees pursuant to
R.C. 3105.73(B), the trial court must hold a hearing to determine the reasonableness of
those fees. Rummelhoff at ¶ 47, citing Hubbard v. Hubbard, 3d Dist. Defiance No. 4-
08-37, 2009-Ohio-2194, ¶ 12; see Bagnola v. Bagnola, 5th Dist. Stark No.
2004CA00151, 2004-Ohio-7286, ¶ 36 (holding trial court abused its discretion when it
awarded attorney fees without holding a hearing to determine reasonableness). “Simply
submitting itemized bills, without any evidence that the adverse party has been billed
3Loc.R. 17.1 provides that, in addition to an itemized bill, the attorney seeking fees shall present:
Testimony as to whether the case was complicated by any or all of the following:
New or unique issues of law[;] difficulty in ascertaining or valuing the parties
assets[;] problems with completing discovery[;] any other factor necessitating
extra time being spent on the case. Testimony regarding the attorney’s years in
practice and experience in domestic relations cases. Evidence of the parties’
respective income and expenses, if not otherwise disclosed during the hearing.
The rule goes on to provide that “[f]ailure to comply with the provisions of this rule shall result in
the denial of a request for attorney fees, unless jurisdiction to determine the issue of fees is
expressly reserved in any order resulting from the hearing.”
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for, or paid, the fees, is insufficient and constitutes an abuse of discretion.” Id., citing
Hubbard at ¶ 12.
{¶31} Counsel did not testify, nor did she submit an affidavit establishing the
reasonableness of the fees. The only evidence on the attorney-fee issue was an itemized
billing statement, totaling $26,618.75, submitted at the end of the motions hearing
before the magistrate and testimony from the mother that she “spent” those fees. The
following is the entire exchange regarding attorney fees that occurred at the hearing:
COUNSEL FOR MOTHER: And last question, please look at Exhibit 18.
Are these the attorney fees you’ve spent on this matter?
MOTHER: Yes.
COUNSEL FOR MOTHER: I think we’re at noon.
THE COURT: Yes. Ms. Howard, did you have any questions?
***
COUNSEL FOR FATHER: You know, your Honor, I’m mindful of the
time, and I think I can handle all of it in closing.
***
THE COURT: Okay. All right. Do you want to talk about exhibits?
***
COUNSEL FOR MOTHER: * * * I’m also moving in [Exhibits] 13, 17, 18.
COUNSEL FOR FATHER: * * * 18, I guess for what it’s worth I guess is
in.
COUNSEL FOR MOTHER: My client just testified to it
COUNSEL FOR FATHER: Yeah. I mean, for what it’s worth. That’s fine.
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{¶32} Given the lack of evidence demonstrating the reasonableness of the
attorney fees, we hold that the court’s attorney-fee award was an abuse of discretion.
The second assignment of error is sustained.
Child Support
{¶33} In his third assignment of error, father contends that the trial court
erred by “adopting and ordering [him] to sign an unsigned draft Agreed Entry on child
support.”
{¶34} We review a domestic relations court’s adoption of settlement
agreements for an abuse of discretion. Federle v. Federle, 1st Dist. Hamilton No.
C-180171, 2019-Ohio-2565, ¶ 8; Rulli v. Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337(1997).
{¶35} The parties do not dispute that at the beginning of the May 25, 2021
hearing before the magistrate, both parties indicated they had reached an agreement on
child support. The following exchange took place:
THE COURT: * * * I have a couple of motions scheduled today. One was
child support, but it sounds like that has – you’ve reached an agreement
as far as that goes. Is that correct?
[COUNSEL FOR MOTHER]: Correct,
[COUNSEL FOR FATHER]: Yes, your Honor.
{¶36} Nonetheless, without explanation, the magistrate’s decision included a
decision on child support and reduced father’s obligation to $2,028.49 due to his
reduced income.
{¶37} Mother filed objections to the magistrate decision, arguing that the
parties had agreed on child support in mediation and it was error for the magistrate to
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rule on the child-support motion. In support, she attached emails between counsel and
unsigned agreed entries that, among other things, reduced child support to $2,805 until
March 2023, and then to $2,550 going forward.
{¶38} In an email attached to mother’s amended objections, father’s counsel
wrote that father “will wait for the Judge to rule on your Objections as to child support,
parenting time and attorney fees.” Counsel noted that father was only agreeable to
signing an entry that pertained to issues other than child support, parenting time and
attorney fees.
{¶39} Complicating the issue further, mother filed objections to the
magistrate’s decision, and amended objections to the magistrate’s decision. Each filing
included two different versions of the agreement, with various terms including
child-support terms, modified with redlined text.
{¶40} In his memorandum opposing mother’s objections, Father contended
that while the parties had hoped to settle the issue in mediation, the documents
attached to mother’s objections “were drafts and no Agreed Entry had been signed by
either party.” Nevertheless, the court sustained mother’s objection and “adopt[ed] the
agreed entry.”
{¶41} On appeal, father again argues that the documents attached to mother’s
objections to the magistrate’s decision were working drafts of a tentative agreement.
{¶42} Mother counters that the child-support issue was not litigated before
the magistrate because the parties agreed that the issue had been settled. She contends
that the terms of the agreement are not legitimately in dispute and that father is simply
“tr[ying] to capitalize on the magistrate’s error despite there being no genuine issue as
to the terms of the agreement.”
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{¶43} While settlement agreements and agreed entries are favored in the law,
“courts should be particularly reluctant to enforce ambiguous or incomplete contracts
that aim to memorialize a settlement agreement between adversarial litigants.” Rulli, 79
Ohio St.3d at 376, 683 N.E.2d 337. For instance, in Rulli, the Ohio Supreme Court held
that “[w]here the meaning of terms of a settlement agreement is disputed, or where
there is a dispute that contests the existence of a settlement agreement, a trial court must
conduct an evidentiary hearing prior to entering judgment.” Id. at paragraph one of the
syllabus. In that case, the agreement was read into the record, but a signed entry was
not submitted as ordered by the trial court because the parties could not agree on the
meaning of the terms. Id. at 376. The court concluded that “[g]iven the lack of finality
and the dispute that evolved subsequent to the initial settlement hearing” there should
have been an evidentiary hearing “to resolve the parties’ dispute about the existence of
an agreement or the meaning of its terms * * * before reducing the matter to judgment.”
Id.; compare Federle, 1st Dist. Hamilton No. C-180171, 2019-Ohio-2565, at ¶ 22
(holding that because “each of the essential terms of the in-court agreement [were]
substantially included” in the agreement adopted by the court, and the parties agreed to
the terms in open court, the trial court did not abuse its discretion in adopting a
settlement agreement); Kohler v. Kohler, 2d Dist. Montgomery No. 2009 CA 3,
2009-Ohio-3434 (holding that an agreed entry was properly adopted where “[t]he
essential terms” were clear and the agreement was read into the record).
{¶44} Given the ambiguity surrounding the agreed entry, we hold that the trial
court abused its discretion in adopting and ordering the parties to sign it. The third
assignment of error is sustained.
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Conclusion
{¶45} For the foregoing reasons, we overrule father’s first assignment of error,
but sustain his second and third assignments of error. We remand the cause so the trial
court can hold a hearing on the reasonableness of the attorney fees and the agreed entry
on child support.
Judgment affirmed in part, reversed in part, and cause remanded.
ZAYAS, P. J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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