Buckingham v. Buckingham , 113 N.E.3d 1061 ( 2018 )

[Cite as Buckingham v. Buckingham, 2018-Ohio-2039.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
JAY BUCKINGHAM :
:
Plaintiff-Appellant : Appellate Case No. 2017-CA-31
:
v. : Trial Court Case No. 2013-DR-153
:
NANCY BUCKINGHAM : (Domestic Relations Appeal)
:
Defendant-Appellee :
:
...........
OPINION
Rendered on the 25th day of May, 2018.
...........
KENT J. DEPOORTER, Atty. Reg. No. 0058487, 7501 Paragon Road, Dayton, Ohio
45459
Attorney for Plaintiff-Appellant
F. ANN CROSSMAN, Atty. Reg. No. 0043525, and MICHELLE M. MACIOROWSKI, Atty.
Reg. No. 0067692, 7051 Clyo Road, Dayton, Ohio 45459
Attorneys for Defendant-Appellee
.............
WELBAUM, P.J.
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{¶ 1} In this case, Plaintiff-Appellant, Jay Buckingham (“Jay”), appeals from a trial
court decision finding him in contempt and ordering him to pay attorney and expert fees
to Defendant-Appellee, Nancy Buckingham (“Nancy”). As grounds for his appeal, Jay
contends that the trial court’s contempt finding was an abuse of discretion and was
against the manifest weight of the evidence. Jay further contends that the trial court’s
decision was an abuse of discretion and was against the manifest weight of the evidence
in other ways, including in the denial of the use of Jay’s health savings account (“HSA”)
to pay the property settlement, in the award of expert witness fees, and in the award of
attorney fees. In addition, Jay contends that the trial court’s failure to find Nancy in
contempt was an abuse of discretion and was against the manifest weight of the evidence.
{¶ 2} For the reasons that follow, we conclude that the trial court did not abuse its
discretion in finding Jay in contempt, because Jay failed to comply with the requirements
for paying the property settlement, nor was the court’s decision against the manifest
weight of the evidence. The trial court also did not abuse its discretion in rejecting the
use of Jay’s HSA to pay the property settlement, in failing to hold Nancy in contempt, or
in awarding attorney fees and litigation expenses to Nancy. The court did err in awarding
$1,250 for one expert, because the record did not include adequate documentation of the
expert’s fees. Accordingly, the judgment of the trial court is reversed with respect to the
trial court’s award of expert fees for David Suich in the amount of $1,250. In all other
respects, the trial court’s judgment is affirmed.
I. Facts and Course of Proceedings
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{¶ 3} In June 2011, Jay filed a divorce action against Nancy, and she filed a
counterclaim for divorce. That action was dismissed without prejudice in April 2013, and
Jay then filed a second complaint for divorce in June 2013. The parties had been
married since May 1994, and no children were born as a result of their marriage.
{¶ 4} In June 2013, the parties filed an agreed order, stating that Jay would receive
free and clear certain properties, and that Nancy had received $198,750 in compensation
for her interest in the properties. They also agreed that Nancy would be paid temporary
spousal support of $5,000 per month, and that Jay would receive credit for spousal
support he had paid since a temporary support order was entered in August 2011.
{¶ 5} On July 22, 2013, the parties appeared in court and entered an agreement
regarding the divorce into the record. After the hearing, the trial court filed an order
directing Nancy’s attorney to prepare and submit the divorce decree; Jay’s attorney was
directed to prepare any qualified domestic relations orders (“QDROs”) and other orders
to transfer accounts. On October 8, 2013, Nancy’s counsel filed a notice of presentation
of final judgment and decree of divorce, and noted that she had been asked by Jay’s
attorney to make changes in the decree that were inaccurate based on the agreement
that had been read into the record. The court then ordered Jay to submit his own
proposed divorce decree, which Jay subsequently filed on October 25, 2013. On
November 25, 2013, the trial court adopted the divorce decree that Nancy had proposed.
{¶ 6} Jay filed a notice of appeal from the divorce judgment on December 23, 2013.
Nancy then filed a motion for attorney fees on January 16, 2014, based on the fact that
the parties had agreed to the decree, but Jay had refused to sign it. On March 25, 2014,
Jay moved to dismiss the request for attorney fees, contending that it was premature.
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Subsequently, Nancy moved to withdraw her attorney fee request, subject to refiling on
presentation of Jay’s appellate brief, which was due in early April 2014. The trial court
granted Nancy’s motion to withdraw the fee request.
{¶ 7} On December 30, 2014, we filed an opinion rejecting Jay’s two assignments
of error and affirming the trial court’s judgment. See Buckingham v. Buckingham, 2d
Dist. Greene No. 2013-CA-77, 2014-Ohio-5798.
{¶ 8} On January 28, 2015, Nancy filed a motion for contempt and a request for
attorney fees with the trial court. The contempt motion was based on several matters:
(1) Jay’s alleged improper transfer of funds into her retirement account without her
consent or knowledge; (2) Jay’s alleged violation of the divorce decree when he
attempted to include assets that had been awarded to her within his property settlement
payments; (3) Jay’s refusal to sign a promissory note that had been presented to him and
his substitution of his own modified note; and (4) Jay’s failure to comply with provisions
in the decree pertaining to designation of Nancy as a beneficiary on his life insurance
policy, his failure to provide proof of life insurance when asked, and his failure to respond
to Nancy’s request for proof of refinancing of certain property. In addition to asking that
Jay be held in contempt, Nancy asked for an award of attorney fees. On the same day,
Nancy also filed a motion asking the trial court to award her attorney fees in connection
with Jay’s pursuit of the appeal.
{¶ 9} On February 11, 2015, Jay filed a motion asking the trial court to hold Nancy
in contempt for failing to accept $50,000 from his IRA and for failing to set up a HSA so
he could transfer $25,000 into that account. Nancy then filed an amended motion for
contempt and request for attorney fees on March 23, 2015.
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{¶ 10} Hearings were held on the contempt motions on July 10, 2015, March 15,
2016, June 9, 2016, June 10, 2016, and August 8, 2016. During the proceedings,
various other motions were filed, including motions to compel, motions in limine, and
additional contempt motions. On October 29, 2015, Jay filed another motion for
contempt, asking the court to hold Nancy in contempt for failing to accept additional HSA
funds and funds from Jay’s 401(k) account. In addition, Jay filed a motion for contempt
on January 8, 2016, asking the court to hold Nancy in contempt because she had asked
the Internal Revenue Service (“IRS”) for an abatement of excise taxes on qualified funds
that had been transferred to her IRA.
{¶ 11} Nancy also filed an additional motion for contempt on March 7, 2016,
alleging that Jay had failed to pay the property settlement pursuant to the divorce decree
filed on November 25, 2013.
{¶ 12} On March 24, 2017, the trial court filed a decision and entry finding Jay in
willful contempt for attempting to credit himself with payment of the property settlement
by using assets that had been awarded to Nancy in the divorce decree. The court
ordered Jay to adjust his accounting by eliminating the improper items and to pay Nancy
$23,072.51 plus any interest due within 30 days in order to purge the contempt.
{¶ 13} The court also concluded that Nancy was not in contempt for contacting the
IRS, as she was attempting to protect herself against a 6% excise tax associated with
Jay’s actions in overfunding her IRA account. In addition, the court found that Jay had
violated the divorce decree or had acted incorrectly in several respects, including failing
to designate Nancy as a beneficiary on life insurance policies, overfunding Nancy’s
retirement account without her knowledge, and engaging in self-help regarding a
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promissory note rather than approaching the court. The court declined to find Jay in
contempt concerning these matters, but indicated that as a result of Jay’s actions, Nancy
had incurred expert and attorney fees.
{¶ 14} Further, the court overruled Jay’s motion for contempt regarding Nancy’s
refusal to accept HSA payments, due to Nancy’s legitimate concern about whether such
funds could be used to pay the property settlement. The court additionally concluded
that use of HSA funds was not contemplated at the time of the decree and improperly
restricted Nancy’s use of the funds. And finally, the court concluded that Jay failed to
present proper paperwork to accomplish a transfer of funds. The court, therefore,
overruled Jay’s motion for contempt in its entirety.
{¶ 15} The court noted that it could impose attorney fees under R.C. 3105.73(B)
for post-decree motions, as equitable. Finding that Nancy was the economically
disadvantaged party, and that Jay had caused problems by taking unilateral actions and
by engaging in self-help, the court ordered Jay to pay $11,000 for an expert Nancy hired
to work with the IRS for a refund of a penalty payment of excise tax and to testify; $10,000
for an attorney Nancy hired to advise her on the promissory note and to testify; and $1,250
for an attorney who testified about ERISA matters. The court also ordered Jay to pay
Nancy’s counsel $40,000 of more than $99,000 in attorney fees incurred for filing
contempt motions and in defending against Jay’s contempt motions. Finally, the court
ordered Jay to pay Nancy $15,000 for fees incurred in connection with Jay’s appeal.
{¶ 16} Jay timely appealed from the trial court’s decision.
II. Finding of Contempt
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{¶ 17} Jay’s First Assignment of Error states that:
The Trial Court Abused Its Discretion and Its Findings Were Against
the Manifest Weight of the Evidence in Finding That the Plaintiff Is In
Contempt of Court for Failing to Pay the First Two Years of Payments in the
Manner Specified in the Decree.
{¶ 18} Under this assignment of error, Jay contends that the trial court abused its
discretion by finding him in contempt for failing to pay the amounts due in the first two
years of payments in the manner specified in the decree. Jay agrees that he owed the
amount stated by the court ($488,179), but contends that the amounts he paid and offered
to pay exceeded that amount. In this regard, Jay argues that he properly included
various accounts in Nancy’s name that were awarded to him in the divorce, plus a HSA
account of $25,000, which would have exceeded the amount due. Jay further argues
that until the trial court filed its decision on March 24, 2017, he was proceeding under our
decision of December 30, 2014, which stated that the decree did not prohibit the use of
any particular type of funds for payment of the property settlement.
{¶ 19} As a preliminary point, we note that the trial court held Jay in contempt for
including funds that had been awarded to Nancy within Jay’s calculation of what
payments were due for the property settlement. See Doc. #220, p. 4. Specifically, the
court stated that “Defendant’s assets awarded in the Final Decree that are included in
Plaintiff’s payments total $17,997.73 of the Plaintiff’s calculations in his March 7, 2014
letter and do not include the 3% simple interest. The Court finds the Plaintiff is in willful
contempt on this branch of Defendant’s March 16, 2016 motion * * *.” Id.{¶ 20} In reaching its decision, the court commented that marital assets including
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Nancy’s “checking and savings account, in the amount of $2,000; and her cash in the
amount of $5,000, her Pershing account in the amount of $170.54, and [her]
Transamerica Life Insurance policy, with a cash value of $10,827,” had been “clearly
awarded solely” to Nancy in the final decree. Id. at pp. 2-3. This is contrary to Jay’s
assertion that the property in question, like Nancy’s checking and savings accounts, were
awarded to him in the divorce decree.
{¶ 21} The court further stated that Jay’s calculation of the amount due (Plaintiff’s
Ex. 68) was less credible than Nancy’s accounting of payments. In this regard, the court
commented that Jay’s amortization schedule (Ex. 68) clearly deducted the amounts
Nancy was awarded in the final decree from the $976,358 loan. However, Nancy’s Ex.
BB used exact figures and did not include the assets awarded to Nancy in the final decree.
The court, therefore, found that Nancy’s Ex. BB was the more credible accounting. See
Doc. #220 at pp. 3-4.
{¶ 22} As a result, the court excluded the assets awarded to Nancy from any
portion of the payments that Jay owed to Nancy. In addition, the court noted that if these
assets were eliminated, along with a $25,000 HSA account, Jay had paid Nancy
$465,106.49 on the loan principal as of March 25, 2014. However, under the terms of
the decree, Jay should have paid Nancy $488,179 as of March 25, 2014. Furthermore,
the court also found that the $465,109.49 in actual payments did not include the 3%
simple interest that was also due. Id. at p. 4.
{¶ 23} “Contempt is defined in general terms as disobedience of a court order.”
State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). “Civil
contempt sanctions are designed for remedial or coercive purposes and are often
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employed to compel obedience to a court order. * * * Thus, civil contempts are
characterized as violations against the party for whose benefit the order was made * * *.”
(Citations omitted.) Id. at 554-555.
{¶ 24} “A prima facie case of contempt is made by establishing a prior court order
and a violation of its terms,” and contempt findings “must be supported by clear and
convincing evidence.” (Citations omitted.) Martin v. Martin, 179 Ohio App.3d 805,
2008-Ohio-6336, 903 N.E.2d 1243, ¶ 24 (2d Dist.). After the moving party proves a
violation, the nonmovant bears the burden of establishing a defense for noncompliance.
We then review the contempt order for an abuse of discretion. (Citations omitted.)
Schutz v. Schutz, 2017-Ohio-695, 85 N.E.3d 481, ¶ 52 (2d Dist.).
{¶ 25} The divorce decree, which was filed on November 25, 2013, provided that
Jay would retain various parcels of real property, including Maple Groves, LLC (which
consisted of Maple Grove Estates I, II, III, IV, and V), Grand Lakes (which included five
properties), and Cobblegate. The decree noted that Nancy had been paid $200,000 for
her equity in Grand Lakes.
{¶ 26} With respect to retirement accounts, the decree further noted that the
parties had various retirement accounts which would be divided. Jay was given his
traditional IRA, Pershing No. XXX8551, and his Simple IRA, Pershing No. XXX9880;
Nancy received her IRA, Pershing No. XXX8536. The decree also stated that “[t]he
parties agree that the value of these retirement accounts has been taken into account in
the Property Settlement Paragraph, set forth herein.” Doc. #31, p. 10.
{¶ 27} Concerning financial accounts, the decree stated that:
The parties represent that they have various financial accounts with
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Schwab, Pershing, JP Morgan, Transamerica, Nationwide Life, and Fifth
Third Bank. The Plaintiff shall retain his Pershing Advisors account, his
Charles Schwab account, and his J.P. Morgan account. The Defendant
shall retain her Pershing Advisors account. Additionally, each party shall
retain their individual checking and savings accounts presently in their
individual names. The division of the various investment accounts has
been taken into consideration in the Property Settlement paragraph set forth
herein.
The parties further agree that all joint accounts have been closed.
Doc. #31, p. 10. Jay also retained his business interests, including entities like
Buckingham & Company, LLC, Buckingham Capital Management, Buckingham Financial
Group, Buckingham Tax Services, Inc. dba Weston & Company, National Tax CR Fund,
and several others.
{¶ 28} Under the “Property Settlement Payments” clause, the decree provided
that:
The parties agree that the Defendant shall receive the sum of
$1,200,000.00 as property settlement in this case. This sum shall be paid
at the statutory interest rate of 3% per annum, simple interest. The parties
agree that $223,642.50 has been paid previously to the Defendant in this
case. The remaining balance of $976,358.00 shall be paid in 4 equal
payments plus the 3% interest at the same time each year. The first year’s
payment shall be made within 90 days of the filing of the Final Judgment
and Decree of Divorce in the amount of $244,089.50 plus 3% simple interest
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from the time of the filing of the Final Judgment and Decree of Divorce until
the first payment has been made. The remaining balance shall then be
paid in the same three (3) equal installments of $244,089.60 plus simple
interest over the next 3 years on the same date as the first payment was
made by the Plaintiff. The parties agree that Plaintiff shall be entitled to
pay ahead of schedule if he chooses.
The property settlement payment due and owing to the Defendant
shall be secured by Promissory Note which shall be signed by the Plaintiff
to the Defendant. The Plaintiff shall sign the promissory note to secure the
Defendant’s property settlement payment upon presentation of same by the
Defendant.
Both parties shall sign whatever additional documents are necessary
to complete the transfer of the property settlement funds to the Defendant
by the Plaintiff. Counsel for the Plaintiff shall prepare the necessary orders
in the event that qualified funds from retirement accounts are used. The
parties agree that the funds are a division of property incident to a divorce
and a non-taxable event pursuant to I.R.S. Code Section 408(d)(6) and
I.R.S. Code Section 71(b)(2)(a).
The parties specifically agree that this property settlement payment
set forth herein is non-dischargeable in bankruptcy and shall be considered
a domestic support obligation.
Doc. #31 at pp. 12-13.
{¶ 29} When the decree was filed, the balance left remaining on the property
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settlement was $976,358.50. On December 9, 2013, Jay’s attorney, Kent Depoorter,
sent three proposed QDROs to Nancy’s attorney, Ann Crossman. The QDROs related
to three accounts: Jay’s Pershing IRA No. XXX8551; Jay’s Pershing Simple IRA No.
9880; and Jay’s Fifth Third HSA No. XXXXXX0498.1 The proposed orders pertaining to
these accounts stated that “this Order shall be a Qualified Domestic Relations Order
(hereinafter referred to as a ‘QDRO’ as defined in section 206(d)(3) of the Employee
Retirement Income Security Act of 1974 (‘ERISA’) and section 414(p) of the Internal
Revenue Code of 1986 * * *.” Defendant’s Ex. Q, Bates Stamp 00266, 00272, and
00277.
{¶ 30} Crossman responded on December 10, 2013, stating that “Individual
Retirement Accounts are not governed by ERISA laws and, therefore, Qualified Domestic
Relations Orders do not apply. Please forward to me the correct documents dividing the
Individual Retirement Accounts.” Plaintiff’s Ex. 2, p. 1.
{¶ 31} Rather than responding or forwarding any documents, Depoorter sent
Pershing a letter on December 13, 2013 asking Pershing to transfer 100% of Jay’s
accounts (XXX8551 and XXX9880) to Nancy’s Pershing Account No. XXX8536. See
Plaintiff’s Ex. 3. Jay also signed “asset movement authorization” forms on December
17, 2013. Plaintiff’s Ex. 25. Based on these documents, Pershing transferred
$167,058.54 from Jay’s Simple IRA (XXX9880) into Nancy’s IRA account on December
18, 2013, and $142,062.04 from Jay’s IRA (XXX8551) into Nancy’s Pershing IRA account
on December 23, 2013. On Nancy’s Pershing statement, these transfers were reflected
as QDRO transfers. See Defendant’s Ex. B, Bates Stamp 00014-00015. As was noted,
1 The decree did not identify or discuss any HSA accounts.
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Jay's notice of appeal was also filed on December 23, 2013. Based on the timing of the
payments and the content of the divorce decree, the next payment of the property
settlement would be due on December 18, 2014, and the remaining payments would be
due on December 18th of each year thereafter, until the payments were completed.
{¶ 32} On December 24, 2013, Crossman contacted Depoorter about the
retirement orders to be prepared, but did not receive a response. See Plaintiff’s Ex. 4.
Nancy first learned about the transfer of funds when she received her Pershing statement
in January 2014. She contacted Pershing to request a reversal of the transfer because
it had been done without her authorization and Pershing was the custodian of her account.
However, Pershing refused. Pershing also refused to provide her with documentation
because the transfer had been made from Jay’s account; Nancy was finally able to obtain
documents in February 2015, after issuing a subpoena to Pershing.
{¶ 33} After December 9, 2013, Jay’s counsel did not prepare and send any further
orders for transfers of funds to Nancy. On January 9, 2014, Crossman sent a promissory
note to Depoorter. Depoorter replied on January 14, 2014, and in the letter, provided his
accounting of items that Jay intended to include as payments to Nancy in satisfaction of
the $976,358 settlement. Plaintiff’s Ex. 4. At the contempt hearing, Nancy testified that
Jay had improperly claimed credit against the property settlement for a life insurance
policy that she had owned since its inception, as well as other accounts that belonged to
her. On January 23, 2014, Crossman informed Depoorter of the fact that Jay was not
entitled to use Nancy’s money to pay the property settlement. See Defendant’s Ex. T,
Bates Stamp 00290.
{¶ 34} However, Depoorter continued to insist that such items should be included.
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For example, in a letter of March 20, 2014, Depoorter stated that the following amounts,
among others, were “payments” that had been made to Nancy: a Transamerica life
insurance policy (that was titled in Nancy’s name) in the amount of $10,827.19; “Nancy’s
checking and savings accounts” in the amount of $2,000; “Nancy’s cash” in the amount
of $5,000; and “Nancy’s Pershing account as of 6/30/2011” in the amount of $170.54.
Defendant’s Ex. U, Bates Stamp 00296-00297. Depoorter made the same claims again
in a March 27, 2014 letter to Crossman. Defendant’s Ex. V, Bates stamp 00314-00315.
{¶ 35} According to Depoorter’s assertions in these letters, Jay had paid Nancy a
total of $512,191.89 by March 27, 2014. This amount included the above accounts and
cash that Nancy owned, a $25,000 HSA account that was not transferred to Nancy and
was in dispute; the money transferred from Jay’s IRAs in December 2013, and a $160,000
check that was paid on February 24, 2014.
{¶ 36} At the hearing on June 9, 2016, Jay presented Plaintiff’s Ex. 68, which was
an amortization schedule prepared by his CPA. This schedule listed the payment
balance as of November 25, 2013 (the date of the decree) at $935,360, after deducting
Nancy’s life insurance, Nancy’s cash, and Nancy’s Pershing account. Thus, even in
June 2016, Jay was still contending that he should be credited with assets that belonged
to Nancy. Furthermore, Jay never provided any reason or testimony at the contempt
hearings to show why these amounts should be appropriately credited against money he
was required to pay. As a result, Jay failed to meet his burden to show that that he had
a defense to contempt. See Schutz, 2017-Ohio-695, 85 N.E.3d 481, at ¶ 52.
{¶ 37} Furthermore, Jay incorrectly asserts in his brief that until the trial court
issued its contempt rulings on March 24, 2017, he was properly proceeding under our
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decision of December 30, 2014. When Jay attempted to pay using the HSA in December
2013 and in early 2014, our decision had not yet been made. In addition, by the time of
the June 9, 2016 hearing, when Jay was still arguing that he was entitled to be credited
with Nancy’s cash and savings accounts, we had long ago held that the trial court did not
abuse “its discretion in concluding that the agreed entry submitted by Mrs. Buckingham
accurately reflected the parties’ agreement and that the parties intended to keep the
accounts in their own names.” Buckingham, 2d Dist. Greene No. 2013-CA-77, 2014-
Ohio-5798, at ¶ 22. We further commented that “[m]oreover, insofar as the parties’
retention of their own accounts, according to the final judgment, was factored into the
property settlement, any adjustment to the distribution of these accounts would
necessitate a corresponding adjustment of the property settlement.” Id. Thus, there
was no credible basis for asserting that in paying the property settlement, Jay should be
credited with the amounts listed in Ex. 68 as Nancy’s cash, Nancy’s Pershing account,
and Nancy’s life insurance.
{¶ 38} Moreover, the divorce decree required Jay’s attorney to draft any orders
that were needed. There was no dispute that after Depoorter sent proposed QDROs to
Nancy’s attorney in December 2013, Depoorter never thereafter submitted any additional
documents. Thus, Jay’s contention that he “paid” Nancy $25,000 in additional HSA
funds, or even that he should be credited with attempting to pay her this amount, is without
merit. The trial court also commented, in refusing to find Nancy in contempt for failing to
set up a HSA account, that the decree did not require her to set up financial accounts into
which Jay could transfer funds. In this regard, the trial court commented that Jay “may
have avoided the lengthy hearing by cashing out the [HSA], if possible, and using the
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cash to pay the property settlement. He again, unilaterally decided not to do so.” Doc.
#220 at p. 16.
{¶ 39} Accordingly, we find no abuse of discretion in the trial court’s finding that
Jay was in contempt for failing to pay the first two years of payments as specified in the
decree. An offer to pay is not payment, and there is no dispute that Jay did not transfer
funds to Nancy as specified in the divorce decree. As shown in Defendant’s Ex. BB, by
December 18, 2014, Jay had transferred only $465,812.87 to Nancy, when the terms of
the decree required that he have transferred $488,197, plus 3% simple interest, by that
date. For the same reasons, the court’s order was not against the manifest weight of the
evidence.
{¶ 40} In a manifest weight challenge, “ ‘[t]he court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. The discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs heavily against the
[judgment].’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
Accord Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17
(applying Thompkins to civil cases).
{¶ 41} Trial courts resolve witness credibility and the weight to be accorded to the
testimony. (Citation omitted.) Jenkins v. Jenkins, 2012-Ohio-4182, 975 N.E.2d 1060, ¶
18 (2d Dist.). “Because the factfinder, be it the jury or, as in this case, the trial judge,
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has the opportunity to see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment is against the manifest
weight of the evidence requires that substantial deference be extended to the factfinder's
determinations of credibility. The decision whether, and to what extent, to credit the
testimony of particular witnesses is within the peculiar competence of the factfinder, who
has seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288,
1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 42} We have carefully reviewed the record and conclude that this is not the
exceptional case in which the evidence weighs heavily against the trial court’s judgment.
To the contrary, we agree with the trial court that Jay’s assertion of amounts he was
entitled to offset was not credible.
{¶ 43} Accordingly, Jay’s First Assignment of Error is overruled.
III. Treatment of HSA
{¶ 44} Jay’s Second Assignment of Error states that:
The Trial Court Abused Its Discretion and Its Findings Were Against
the Manifest Weight of the Evidence in Finding That Appellant Cannot Use
His HSA (Health Savings Account) to Pay the Property Settlement and
Places Restrictions on the Use of Said Funds.
{¶ 45} Under this assignment of error, Jay contends that the trial court abused its
discretion by finding that Jay could not use HSA funds to pay the property settlement.
Jay’s reasoning is based on the fact that the trial court stated during the transcript that
there was no restriction on the funds that could be used to pay the property settlement,
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but ruled to the contrary in its judgment entry by finding that Jay could not use HSA funds
to pay. In addition, Jay cites various statements of experts who testified that transfers of
HSA funds under divorce decrees have no tax consequences on transfer.
{¶ 46} The contempt motions were heard by the trial court, and the court made
numerous comments throughout the hearings, some of which were not consistent with
each other. However, it is well-settled that courts speak only through their journal
entries. Economy Fire & Cas. Co. v. Craft Gen. Contrs., Inc., 7 Ohio App.3d 335, 336,
455 N.E.2d 1037 (10th Dist.1982), citing Andrews v. Bd. of Liquor Control, 164 Ohio St.
275, 131 N.E.2d 390 (1955), paragraph three of the syllabus. Thus, judges can change
their minds “before making a journal entry without giving the parties grounds for an
appeal, because the court has not spoken until its journal entry is filed.” (Citation
omitted.) Id. Accord Smith v. Smith, 2d Dist. Clark No. 2087, 1986 WL 1698, *3 (Feb.
10, 1986).
{¶ 47} Until the judgment is finalized, courts have “ ‘inherent power to reconsider
any matter.’ ” State v. Nelson, 10th Dist. Franklin No. 14AP-229, 2014-Ohio-5757, ¶ 23,
quoting C.C.M. Enterprises, Inc. v. U.S. Fire Ins. Co., 1st Dist. No. C-870193, 1988 WL
26226 (Mar. 2, 1988). See also In re D.M., 2d Dist. Champaign No. 09CA48, 2011-Ohio-
123, ¶ 14 (judge’s oral statements have no legal force and effect when not journalized);
In re Adoption of Gibson, 23 Ohio St.3d 170, 173, 492 N.E.2d 146 (1986), fn.3 (stating
that because a court speaks only through its journal, “commentary from the bench,
leading up to pronouncement of a decision,” is not “adequate to provide a disappointed
party a solid basis on which to ground an appeal”).
{¶ 48} There is no doubt that this was a complicated case. We note that even the
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experts that Jay presented contradicted each other regarding HSAs. For example,
Alissa Culp, a third-party administrator for tax-free accounts, stated that an individual
does not have to be on a high-deductible plan to open a HSA account. Transcript of
August 8, 2016 Hearing, p. 32. In contrast, David Whaley, an ERISA and employee
benefits attorney, stated that a HSA is an account that is dependent on having a high-
deductible health care plan, and an individual is allowed to set up a special account for
health-care coverage when he or she has a high-deductible plan and no other
disqualifying coverage. Id. at pp. 48-49.
{¶ 49} Throughout the course of the hearings, an issue was the interpretation of
our prior opinion, which briefly discussed Jay’s contention on appeal that “the terms of
the property settlement upon which the parties had agreed called for him to pay Mrs.
Buckingham $1.2 million from qualified or non-qualified sources, but that the final entry
“limited [him] to the use of cash or qualified funds from retirement accounts” for the
payment of this obligation.” Buckingham, 2d Dist. Greene No. 2013-CA-77, 2014-Ohio-
5798, at ¶ 17.
{¶ 50} Our entire consideration of this point was limited to one paragraph, in which
we said that we found no language in the decree imposing the limitation that Jay
advocated. We noted that the only reference to funds “in the section related to the
property settlement states that Mr. Buckingham's attorney ‘shall prepare the necessary
orders in the event that qualified funds from retirement accounts are used.’ ” (Emphasis
sic.) Id. at ¶ 18. We concluded that “[t]his language does not require or prohibit the
use of any particular type of funds for the payment of the property settlement and even
implicitly approves the usage of qualified funds.” Id.
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{¶ 51} Notably, we did not define “qualified funds,” nor did we have occasion to
consider whether the use of any particular method of payment was consistent with the
intent of the property settlement, because no payments had been made at the time of the
appeal. As a result, that issue was not before us, and our comments, in that respect,
were dicta.
{¶ 52} In its decision, the trial court concluded that HSAs are not retirement funds,
and that nothing in the decree gave Jay authority to pay Nancy “her share of the property
settlement in any form which would result in any further limitation or costs incurred by her
when she uses the funds except the tax consequences of her use of the qualified funds.”
Doc. #220 at p. 15. The court, therefore, held that Nancy was not under any obligation
to accept HSA funds and that Jay was required to exclude his HSA account from the
payment of the property settlement. Id.
{¶ 53} “Ohio law clearly establishes that a judgment may be interpreted if it is
ambiguous. If there is good faith confusion over the interpretation to be given to a
particular clause of a divorce decree, the trial court in enforcing that decree has the power
to hear the matter, clarify the confusion, and resolve the dispute.” (Citations omitted.)
Quisenberry v. Quisenberry, 91 Ohio App. 3d 341, 348, 632 N.E.2d 916 (2d Dist.1993).
Accord Landry v. Landry, 2017-Ohio-564, 85 N.E.3d 313, ¶ 7 (2d Dist.). The trial court
is to consider the equities involved in determining the prior intent of the decree.
(Citations omitted.) Rubin v. Rubin, 11th Dist. Trumbull No. 2005-T-0016, 2006-Ohio-
2383, ¶ 27; Makar v. Makar, 7th Dist. Mahoning No. 02 CA 37, 2003-Ohio-1071, ¶ 12.
See also Hale v. Hale, 2d Dist. Montgomery No. 21402, 2007-Ohio-867, ¶ 15 (“the court
must, in interpreting an ambiguous property division, consider both the equities involved
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and the law in determining the intent”).
{¶ 54} “An interpretative decision by the trial court cannot be disturbed upon
appeal absent a showing of an abuse of discretion.” In re Marriage of Seders, 42 Ohio
App.3d 155, 156, 536 N.E.2d 1190 (9th Dist.1987), citing Blakemore v. Blakemore, 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1983). As we have often said, an abuse of discretion “ ‘has
been defined as an attitude that is unreasonable, arbitrary, or unconscionable.’ ”
Mossing-Landers v. Landers, 2016-Ohio-7625, 73 N.E.3d 1060, ¶ 21 (2d Dist.), quoting
AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio
St.3d 157, 161, 553 N.E.2d 597 (1990). We have also repeatedly stressed, in following
AAAA Enterprises, that “ ‘most instances of abuse of discretion will result in decisions that
are simply unreasonable,’ ” and that decisions are unreasonable if they are unsupported
by a sound reasoning process. Id. See also, e.g., Myers v. Brewer, 2017-Ohio-4324,
91 N.E.3d 1249, ¶ 12 (2d Dist.).
{¶ 55} We agree with the trial court’s conclusion that nothing in the decree permits
Jay to limit Nancy’s use of the property settlement in the manner that a HSA would
involve. “HSAs are creations of the Internal Revenue Code and were authorized by
Congress in the Medicare Prescription Drug, Improvement, and Modernization Act of
2003. See Pub. L. 108-173, § 1201, 117 Stat. 2066, 2469-79 (2003). * * * Essentially,
HSAs encourage individuals who have high deductibles in their health insurance plans to
save for their healthcare costs by providing tax-preferred treatment for such savings.
See 26 USC § 223 (a). Disbursements from a HSA for anything other than qualified
medical expenses generally are taxable as gross income and at an additional rate of 20%.
See 26 USC § 223 (f) (4) (A).” (Footnotes omitted.) Mooney v. Webster, 300 Ga. 283,
-22-
286-87, and 291, 794 S.E.2d 31 (2016) (agreeing with the federal district court that HSAs
are different from IRAs because “a HSA is not a substitute for wages * * *”).
{¶ 56} The federal district court decision that the Supreme Court of Georgia
referenced was In re Mooney, 503 B.R. 916 (Bankr. M.D. Ga.2014). In that case, the
federal district court had noted that while “[b]oth HSAs and IRAs are tax-favored savings
accounts with penalties for nonqualified withdrawals,” a HSA differs from an IRA in
significant ways, including the fact that, unlike an IRA, a HSA is not “a substitute for wages
after an individual retires,” but functions “as a means to save for and to pay medical
expenses without regard to the income needs of the account owner * * *.” Id. at 922,
citing Rousey v. Jacoway, 544 U.S. 320, 329-330, 125 S.Ct. 1561, 161 L.Ed.2d 563(2005). The Eleventh Circuit Court of Appeals subsequently certified questions to the
Supreme Court of Georgia, and that is how the Supreme Court of Georgia came to
consider the case. See In re Mooney, 812 F.3d 1276 (11th Cir.2016). See also In re
Gardner, No. 12-12485 HRT, 2013 WL 3804594, *4 (Bankr. D.Colo., July 19, 2013)
(rejecting debtor’s claim for exemption of HSA funds, stating that it “cannot stretch the
definition of ‘pension or retirement plan or deferred compensation plan’ to embrace the
funds held in an HSA”).
{¶ 57} The trial court, thus, correctly concluded that Jay’s HSA was not a
retirement account. Although 26 U.S.C. 223(f)(4)(C) removes the 20% penalty for
persons who are eligible for Medicare, that does not change the conclusion that the funds
in the HSA were not qualified funds in a retirement account. The HSA funds, therefore,
were not within the contemplation of how funds could be transferred. Specifically, the
decree does not evidence an intent to restrict Nancy’s use of the property settlement in
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this manner.
{¶ 58} Even if this were otherwise, we disagree, in part, with the trial court’s
conclusion that Nancy’s use of her property settlement could be limited by the
requirement that she pay the tax consequences of having received qualified funds. In
this regard, the court stated that it “additionally finds that nothing in the divorce decree
gives the Plaintiff the authority to pay the Defendant her share of the property settlement
in any form which would result in any further limitations or costs incurred by her when she
uses the funds except the tax consequence of her use of the qualified funds.” Doc. #
220 at p. 15. To the extent that the court’s statement can be read to include payments
made through Jay’s retirement or qualified funds that were accumulated after the divorce,
it is inconsistent with the intent surrounding the division of the marital property.
{¶ 59} “Marital property is statutorily considered to be owned equally by both
spouses,” and an equal split “is presumed most equitable.” Young v. Young, 2d Dist.
Clark No. 08-CA-59, 2009-Ohio-3504, ¶ 3, citing R.C. 3105.171(C)(1) and (2).
Additionally, “retirement benefits earned during marriage generally are divisible as marital
property.” (Citations omitted.) Id. at ¶ 31.
{¶ 60} As was noted above, the parties’ retirement funds were considered in
conjunction with all the assets in reaching the property settlement. See Doc. #31 at p.
10. However, the only pension or retirement funds Jay had at the time of the divorce
were the ones listed in the decree – his Pershing traditional and Simple IRAs. See
Transcript of June 10, 2016 Hearing, Testimony of Jay Buckingham, p. 302 (indicating he
had disclosed all his assets and liabilities at the time of the divorce and that he did not
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then have a 401(k) account).2 However, Jay later asked to transfer numerous after-
acquired retirement or other qualified funds, including the following: (1) $25,000 from
Jay’s HSA (the HSA previously discussed that was the subject of a proposed QDRO on
December 9, 2013); (2) $50,000 from Jay’s Simple IRA (January 15, 2015); (3) $15,000
from Jay’s Simple IRA (May 4, 2015); (5) $10,000 from Jay’s HSA on May 5, 2015, which
was increased by another $5,000 on July 31, 2015; and (6) $75,000 from Jay’s IRA on
July 31, 2015. See Defendant’s Ex. RR, Bates Stamp 000601; Plaintiff’s Ex. 60.
{¶ 61} In a letter dated July 31, 2015, Jay’s attorney indicated that Jay would not
calculate interest on these funds from that date forward because he had tried to transfer
the funds to Nancy. Id. at Defendant’s Ex. RR, Bates Stamp 000601. In addition, Jay
filed a motion for contempt against Nancy on October 29, 2015, based on her refusal to
accept the above after-acquired funds. Id. at Plaintiff’s Ex. 60 (September 2, 2015
Depoorter letter to Crossman, enclosing motion for contempt). See also Doc. #113
(contempt motion filed on October 29, 2015).
{¶ 62} Jay’s Pershing IRA and Simple IRA accounts were clearly the funds
contemplated when the parties agreed that “Counsel for the Plaintiff shall prepare the
necessary orders in the event that qualified funds from retirement accounts are used.”
Doc. #31 at p. 13.
{¶ 63} Concerning taxability, the decree states only as follows:
Both parties shall sign whatever additional documents are necessary
2 Jay indicated that he could not recall if the 401(k) account was created in 2013 or 2014,
but the administrator of the fund testified that it was effective January 1, 2014. Transcript
of August 8, 2016 Hearing, p. 7. See also Transcript of June 10, 2016 Hearing, pp. 303-
304 and Ex. SS, Bates Stamp 000628 (indicating that the 401(k) account for Jay was
created on February 18, 2014).
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to complete the transfer of funds to the Defendant by the Plaintiff. Counsel
for the Plaintiff shall prepare the necessary orders in the event that qualified
funds from retirement accounts are used. The parties agree that the funds
are a division of property incident to a divorce and a non-taxable event
pursuant to I.R.S. Code Section 408(d)(6) and I.R.S. Code Section
71(b)(2)(a).
Doc. # 31, p. 13.
{¶ 64} The decree thus indicated that the transfer of funds would be nontaxable,
but did not address the taxability of funds after they were transferred. We conclude that,
with the exception of the retirement funds in existence on the date of the order, any other
funds transferred to Nancy, including funds in Jay’s HSAs, could not be done in a way
that would be taxable to her. As was noted, this was not an issue raised or considered
in the prior appeal.
{¶ 65} R.C. 3105.171(A)(3)(a) defines “marital property” as:
(i) All real and personal property that currently is owned by either or
both of the spouses, including, but not limited to, the retirement benefits of
the spouses, and that was acquired by either or both of the spouses during
the marriage;
(ii) All interest that either or both of the spouses currently has in any
real or personal property, including, but not limited to, the retirement
benefits of the spouses, and that was acquired by either or both of the
spouses during the marriage;
(iii) Except as otherwise provided in this section, all income and
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appreciation on separate property, due to the labor, monetary, or in-kind
contribution of either or both of the spouses that occurred during the
marriage * * *.
(Emphasis added.)
{¶ 66} “In any divorce action, the starting point for a trial court's analysis is an equal
division of marital property.” (Citation omitted.) Daniel v. Daniel, 139 Ohio St.3d 275,
2014-Ohio-1161, 11 N.E.3d 1119, ¶ 7. It is axiomatic that an equal division of marital
property “is presumed to be equitable.” Fisher v. Fisher, 2d Dist. Darke No. 2014-CA-6,
2015-Ohio-786, ¶ 6; Young, 2d Dist. Clark No. 08-CA-59, 2009-Ohio-3504, at ¶ 3. If
Nancy were required to pay taxes on the property settlement funds distributed to her,
other than the retirement funds mentioned in the decree, that would cause her to receive
less than an equitable or equal amount of marital assets. See Caudill v. Everett, 3d Dist.
Union No. 14-92-40, 1993 WL 169158, *2 (May 10, 1993) (refusing to interpret decree to
contravene obvious intent of parties, who agreed that marital debts would be equitably
divided). See also Hale, 2d Dist. Montgomery No. 21402, 2007-Ohio-867, at ¶ 15 (in
interpreting ambiguity in property division, courts consider equities and law to decide
intent); Hocker v. Hocker, 188 Ohio App.3d 755, 2010-Ohio-2835, 936 N.E.2d 1003, ¶ 24
and 65 (2d Dist.) (in construing ambiguous divorce agreement read into record, the intent
of the parties and the equities involved are considered).
{¶ 67} In Hocker, we concluded that the trial court erred in refusing to allow a
party’s attorney to testify about the parties’ motives during their negotiations to clarify an
ambiguity in the agreed decree; however, we found that the error was harmless because
the court did consider the proffer of the attorney’s testimony. Id. at ¶ 42. Notably, in the
-27-
case before us, neither side attempted to present evidence from their attorneys as to
negotiations.
{¶ 68} Nancy’s tax expert, J.R. Hochwalt, testified that Nancy is in a 33% federal
tax bracket and a 4.9% state tax bracket. Assuming that all of the $976,358 property
settlement (excluding interest) were paid in funds that required Nancy to pay tax when
she accessed the funds, and also assuming that Nancy’s tax rate remained the same,
she would potentially pay around $370,039, or more than one-third of the property
settlement when she accessed the funds.3 This would be significantly less than an equal
or equitable division of the marital property. It is also not speculative that Nancy would
have to withdraw retirement funds, since she was 65 years old at the time of the 2016
hearings, and had no income other than her spousal support (which would end in the
summer of 2017) and $800 per month in social security benefits.4 Even assuming that
Nancy might be in a lower tax bracket in later withdrawing the funds, she would still
receive less than her equal share of the marital property.
{¶ 69} While the decree did contemplate that qualified funds in retirement accounts
could be transferred, the only logical way to interpret that is that the parties contemplated
3 This is consistent with the trial court’s observations a number of times during the
hearings that the difference in who was responsible for paying tax was about $400,000.
The court did not make a specific finding on this point, as the court concluded that it was
bound by our prior decision. Doc. #220 at p. 15. However, as has been noted, we had
no reason to consider this issue, as no payments had been made prior to the time Jay
appealed from the original judgment of divorce.
4 In addition, Nancy had already been subjected to IRS excise penalties concerning the
overfunding of her Pershing IRA in December 2013. Although Nancy self-reported the
issue to the IRS, which then assessed penalties, she did so on the advice of her tax
expert, who concluded that her Pershing IRA had been improperly overfunded. He was
eventually able to get the penalty amounts refunded, but Nancy did have to pay these
amounts in the interim, in addition to expending funds on a tax consultant.
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potential taxable consequences for transfer of those retirement funds in existence at the
time of the decree. As was noted, the HSA was not a retirement fund and did not fit
within this definition. It was also not mentioned in the decree. Thus, the trial court
correctly concluded that Jay could not use HSA accounts to pay for the property
settlement. The Second Assignment of Error, therefore, is overruled.
IV. Attorney Fees Relating to Promissory Note
{¶ 70} Jay’s Third Assignment of Error states that:
The Trial Court Abused Its Discretion and Its Findings Were Against
the Manifest Weight of the Evidence in Awarding Attorney Fees for
Defendant’s Expert, Michael McNamee.
{¶ 71} Under this assignment of error, Jay contends that the trial court erred in
awarding $10,000 to Nancy in connection with the testimony of attorney Michael
McNamee. Jay contends that McNamee’s testimony about promissory notes was
irrelevant to any issues in the case, because McNamee testified about a note that was
not used.
{¶ 72} Under the provision entitled “Property Settlement Payments,” the divorce
decree stated as follows:
The property settlement payment due and owing to the Defendant
shall be secured by Promissory Note which shall be signed by the Plaintiff
to the Defendant. The Plaintiff shall sign the promissory note to secure the
Defendant’s property settlement payment upon presentation of same by the
Defendant.
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Doc. # 31 at p. 12.
{¶ 73} The decree did not specify particular wording for the promissory note. On
January 23, 2014, Nancy's attorney, Ann Crossman, sent a promissory note to Jay's
attorney, Kent Depoorter, and asked him to have Jay sign the note and return it. See
Defendant's Ex. T. No response was received.
{¶ 74} Instead of discussing the matter or replying to Crossman’s letter, Depoorter
sent a modified promissory note to Crossman on March 27, 2014, that Jay had signed.
See Defendant's Ex. V; Plaintiff’s Ex. 19. Crossman then sent another promissory note
to Depoorter on March 31, 2014, indicating that the promissory note Jay had signed was
unacceptable. See Plaintiff’s Ex. 20.
{¶ 75} Subsequently, on January 28, 2015, Nancy filed a motion for contempt and
attorney fees in the trial court, based on several grounds, one of which was that her
attorney had presented a promissory note to Jay’s counsel and to Jay on several
occasions, but Jay had failed to sign the note that was submitted. Instead, Jay’s counsel
had submitted a modified version of the note that did not contain all the language that the
note submitted by Nancy’s counsel contained. Nancy asked that the court order Jay to
sign the promissory note that she had provided.
{¶ 76} On October 29, 2015, Jay filed a motion for contempt against Nancy, based,
among other things, on her alleged failure to prepare a promissory note that was
consistent with the terms in the divorce decree. Jay also asked for attorney fees and
costs.
{¶ 77} As the trial court noted in its decision, the difference between the two
promissory notes was that Nancy’s note contained an acceleration clause and Jay’s
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promissory note did not. While the trial court overruled Nancy’s motion for contempt on
this issue, the court also commented that Jay should have consulted with the court instead
of engaging in self-help. However, the court found that Jay’s actions were not willful
because there was an arguable defense to not signing Nancy’s promissory note. The
court also overruled Branch III of Jay’s October 29, 2015 contempt motion, which alleged
that Nancy failed to prepare a proper promissory note that was consistent with the terms
in the divorce decree.
{¶ 78} In later deciding whether to award fees, the court stated that:
Plaintiff [Jay] prepared his own promissory note based on his unilateral
decision the Defendant’s promissory note contained an acceleration clause
that was not mentioned in the Final Decree[,] resulting in delays in resolution
of the property settlement. The court finds resolution of the promissory
note could have been settled by a simple conference call between the
parties and the court. Instead Plaintiff resorted to the self-help practice of
having his attorney prepare the note without involving the Court.
Doc. # 220 at p. 11.
{¶ 79} The court further noted that Nancy had been required to respond to Jay’s
contempt motions as well as ancillary motions to exclude her expert witnesses, that Jay’s
actions caused Nancy to hire an attorney (Michael McNamee) to advise her on the
promissory note, and that the attorney had also testified at trial for a total fee of $10,000.
Id. The court subsequently awarded Nancy this amount for McNamee’s fees. Id. at p.
12. Additionally, in overruling the motions in limine that Jay had filed to preclude
McNamee’s testimony, the trial court noted that the testimony of McNamee and Nancy’s
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other experts were needed to “break down the complicated financial issues to better
understand [Nancy’s] contempt defense” and to decide the relevance of the testimony
that was presented. Id. at p. 5.
{¶ 80} R.C. 3105.73 (B) states that:
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.
{¶ 81} Awards of litigation expenses under R.C. 3105.73 are based on the trial
court's sound discretion, and will be reversed only if the court abused its discretion. See,
e.g., Brooks v. Brooks, 6th Dist. Fulton No. F-11-020, 2013-Ohio-405, ¶ 24. In addition,
the parties’ conduct “is a relevant factor in determining whether an award of attorney fees
is equitable.” Karales v. Karales, 10th Dist. Franklin No. 05AP-856, 2006-Ohio-2963,
¶ 25.
{¶ 82} Awards under R.C. 3105.73 are not contingent on a finding of contempt, nor
are they limited just to attorney fees. Instead, litigation expenses are included, which
encompass expert fees. Brooks at ¶ 24 (affirming award for litigation expense for expert
on QDROs). See also O'Malley v. O'Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio-
5238, ¶ 87 (“Guardian ad litem fees, expert fees, and attorney fees are ‘litigation
-32-
expenses’ under R.C. 3105.73”); Moore v. Moore, 175 Ohio App.3d 1, 2008-Ohio-255,
884 N.E.2d 1113, ¶ 92 (6th Dist.) (size and potential value of marital estate warranted
employment of several experts); Wilson v. Wilson, 9th Dist. Wayne No. 05CA0078, 2008-
Ohio-3195, ¶ 12-14; Panico v. Panico, 10th Dist. Franklin No. 06AP-376, 2006-Ohio-
6650, ¶ 17 (expert witness fees may be allocated to opposing party under R.C. 3105.73).
{¶ 83} We have reviewed the entirety of the proceedings, and we disagree with
Jay’s contention that McNamee’s testimony was irrelevant. Notably, Jay filed a motion
for contempt against Nancy, alleging that she failed to prepare a proper promissory note.
Nancy was entitled to defend herself against the contempt allegations.
{¶ 84} In addition to being a lawyer, McNamee had a master’s degree in business
administration with an emphasis in accounting. Transcript of March 15, 2016 Hearing,
pp. 121-122. His area of practice included business work, any type of transactional work,
and complex commercial litigation. Id. at pp. 122-123. McNamee testified that he had
prepared hundreds of promissory notes and had litigated issues concerning promissory
notes. Id. at pp. 123. He reviewed both the note that Jay signed and the one that Nancy
submitted, as well as the final divorce decree. Id. at pp. 123-124. With specific respect
to the contempt motion that Jay filed, McNamee testified that the promissory note that
Nancy proposed was appropriate, that acceleration clauses were “usual and customary,”
and that the note Jay had prepared and signed was one of the few he had seen that did
not contain an acceleration clause. Id. at 128-130. He further stated that acceleration
clauses are found in 99.99% of promissory notes. Id. at p. 142.
{¶ 85} Jay has not challenged the reasonableness of the amount awarded for
McNamee’s work, nor has he challenged the court’s findings on the fact that Nancy was
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the economically disadvantaged party; instead, he has simply contended that McNamee’s
testimony was irrelevant. As noted, we disagree. We also note that McNamee testified
about the issue of whether the promissory note’s restriction of payment to lawful U.S.
money restricted or modified the divorce decree. This was an issue the parties raised.
Furthermore, from the trial court’s decision, it is clear that the court disapproved of Jay’s
actions even though the court limited its contempt findings to one issue. The record is
well-supported in this regard.
{¶ 86} Accordingly, we conclude that the trial court did not abuse its discretion in
awarding fees for McNamee’s testimony. The Third Assignment of Error, therefore, is
overruled.
V. Expert Attorney Fees for David Suich
{¶ 87} Jay’s Fourth Assignment of Error states as follows:
The Trial Court Abused Its Discretion and Its Findings Were Against
the Manifest Weight of the Evidence in Awarding Attorney Fees for
Defendant's Expert, David Suich.
{¶ 88} Under this assignment of error, Jay contends that the trial court abused its
discretion in awarding fees to David Suich. Jay apparently contends that Suich’s
testimony was unnecessary, as he allegedly testified to issues settled by our prior opinion.
In addition, Jay argues that no one testified that Suich’s fees were necessary and
reasonable.
{¶ 89} As a preliminary matter, we disagree with this characterization of Suich’s
testimony. We have reviewed the entire record, and, as the trial court noted, Suich’s
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testimony aided in understanding the issues. Suich was an attorney who practices tax
and business law and also does probate work. He indicated that his practice addresses
issues related to ERISA, and that he was retained to address tax issues related to
401(k)s, IRAs, and ERISA. His testimony pertained to these matters, as did the
testimony of several experts that Jay called as witnesses.
{¶ 90} The trial court awarded Nancy $1,250 in fees for Suich’s testimony. As
noted, in overruling Jay’s motion in limine, the court stated that the testimony of Suich,
McNamee, and another expert (Hochwalt) retained by Nancy “was needed to break down
the complicated financial issues so that the Court could better understand the Defendant’s
contempt defense. The testimony was also needed to determine the relevance of
evidence presented.” Doc. #220 at p. 5.
{¶ 91} As we said, the trial court has "sound discretion" over awards of litigation
expenses under R.C. 3105.73. Brooks, 6th Dist. Fulton No. F-11-020, 2013-Ohio-405,
at ¶ 24. The statute itself does not contain any particular standards for deciding the
appropriateness of “litigation fees” other than stating that “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.”
{¶ 92} In its decision, the court stated that Suich had billed $1,250 in fees. This
figure appears to have been derived from Defendant’s Ex. QQQ, which shows $1,250 in
billings for Suich for December 2015. This exhibit was not identified at trial, but was
transmitted to our court, along with all other exhibits of the parties. We obviously cannot
consider it as evidence.
{¶ 93} Suich did not claim a specific amount of fees, but Nancy indicated that she
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had paid McNamee’s office, including Suich, more than $10,000, and had not yet received
a final bill. See Transcript of March 15, 2016 Hearing, pp. 190-191. Suich had initially
testified at a hearing on December 15, 2015, and returned again on June 10, 2016, to
testify as a rebuttal witness. Clearly, after Nancy testified on March 15, 2016, additional
fees were incurred for Suich’s testimony.
{¶ 94} Given that Suich testified at two different hearings and that the billing
statements of Nancy’s attorney for 2015 and 2016 contain numerous entries for telephone
conferences and consultations with Suich, it is likely that his fees significantly exceeded
$1,250. See Defendant’s Exs. OOO, PPP, and EEEE.
{¶ 95} Nonetheless, since Ex. QQQ was not identified, the trial court could not
simply pick a number, nor can we. Accordingly, Jay’s assignment of error has merit, and
the judgment will be modified to eliminate the $1,250 award for Suich’s fees. Based on
the preceding discussion, the Fourth Assignment of Error is sustained.
VI. Ruling on Contempt Motion Filed Against Nancy
{¶ 96} Jay’s Fifth Assignment of Error states that:
The Trial Court Abused Its Discretion and Its Findings Were Against
the Manifest Weight of the Evidence in Failing to Find the Defendant in
Contempt of Court for Failing to Accept Monies Paid and Offered To Be
Paid to Defendant by Plaintiff.
{¶ 97} Under this assignment of error, Jay contends that the trial court erred in
failing to find that Nancy was in contempt because she did not accept the following funds
from Jay: (1) the $25,000 in HSA money; (2) $50,000 in IRA money; (3) $15,000 in HSA
-36-
money; (4) IRA funds of $15,000; and (5) $75,000 in 401(k) money. In response, Nancy
argues that the issue of what funds could be accepted has been a main point of contention
throughout the proceedings, and that Jay is not permitted to create new qualified funds
that were not in existence at the time of the decree. As was noted in our discussion of
the Third Assignment of Error, we agree with this point.
{¶ 98} Contempt orders are reviewed for abuse of discretion. Schutz, 2017-Ohio-
695, 85 N.E.3d 481, at ¶ 52. Based on our prior discussion, the trial court did not act
unreasonably, arbitrarily, or unconscionably in refusing to find Nancy in contempt for
failing to accept the above accounts, which were not mentioned in the decree, and/or
were generated after the divorce decree was filed. As was noted, we did not, and could
not, have considered this point in our prior opinion, because no payments had yet been
made.
{¶ 99} Accordingly, the Fifth Assignment of Error is overruled.
VII. Attorney Fees Awarded to Defendant
{¶ 100} Jay’s Sixth Assignment of Error states as follows:
The Trial Court Abused Its Discretion and Its Findings Were Against
the Manifest Weight of the Evidence in Awarding Attorney Fees to
Defendant's Attorney in the Amount of $55,000.
{¶ 101} This assignment of error involves two separate fee awards. The trial court
awarded Nancy $15,000 for attorney fees she incurred in defending Jay’s prior appeal to
our court. The second award was for $40,000 in connection with the contempt
proceedings. With respect to the first award, Jay contends, essentially, that he had
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grounds to appeal, and that the parties were on an equal footing financially at the time of
the decree.
{¶ 102} This award is governed by R.C. 3105.73(A), which states that:
In an action for divorce, dissolution, legal separation, or annulment
of marriage 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 income, any award
of temporary spousal support, the conduct of the parties, and any other
relevant factors the court deems appropriate
{¶ 103} In awarding appellate fees to Nancy, the trial court noted that the parties
had read an agreement into the record, that Nancy presented a decree that was
consistent with what was read into the record, and that Jay presented a decree that
differed from what was read into the record and then appealed. The court also noted the
testimony of attorney Matthew Sorg, who testified as to the reasonableness of the
attorney fees for the appeal, and that the appellate fees were necessary for Nancy to
protect her rights. Doc. #220 at pp. 8-9. In addition, the trial court did not award Nancy
all the fees she incurred in connection with the appeal.
{¶ 104} Trial court decisions to award attorney fees are reviewed under an abuse
of discretion standard. (Citations omitted.) Janis v. Janis, 2d Dist. Montgomery No.
23898, 2011-Ohio-3731, ¶ 78. “We may not substitute our judgment for that of the trial
court unless, when considering the totality of the circumstances, we conclude that the trial
court abused its discretion.” Id., citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541
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N.E.2d 597 (1989).
{¶ 105} Under the totality of the circumstances, we find no abuse of discretion. As
an initial matter, while Jay presented testimony from an attorney, Patricia Duff, who
indicated that his appeal was not frivolous, the statute under which the appeal fees were
being sought does not require that appeals be frivolous before fees can be awarded.
Instead, R.C. 3105.73(A) allows reasonable attorney fees to be awarded based on
equitable considerations. Duff did not testify that Nancy’s attorney fees for the appeal
were unreasonable.
{¶ 106} Furthermore, the evidence indicated that Jay’s 2013 income tax return
reflected an adjusted gross income of $948,559, while Nancy’s 2013 adjusted gross
income was only $116,254. See Transcript of June 10, 2016 Hearing, pp. 255, 269-271,
and Defendant’s Ex. AAA, Bates Stamp 000695; Defendant’s Ex. H, Bates Stamp 00083.
Thus, while the parties apparently obtained equal or equitable martial assets in the
divorce, they were far from being on an equal footing in terms of income. Moreover, as
was noted, the court’s March 24, 2017 decision on the contempt issues and other matters
clearly indicates that while the court only held Jay in contempt on one matter, it was highly
critical of Jay’s conduct. Accordingly, we cannot find that the court abused its discretion
in awarding Nancy fees for the appeal.
{¶ 107} The second issue pertains to $40,000 in attorney fees that were awarded
to Nancy. As was noted, these fees were awarded under R.C. 3105.73(B), which
specifically does not allow consideration of the parties’ marital assets in post-decree
awards. Instead, the court is limited, in deciding if an award is equitable, to considering
“the parties’ income, the conduct of the parties, and any other relevant factors the court
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deems appropriate.”
{¶ 108} The amount of Nancy’s attorney fees and expenses that was outstanding
by August 1, 2016, was $99,620.15. See Defendant’s Ex. EEEE, Bates Stamp 001023-
001024.5 In its decision on attorney fees, the trial court concluded that Nancy’s attorney
fees were reasonable and necessary to enforce the decree. The court relied on the
testimony of Nancy’s expert, Matthew Sorg, who stated that while a considerable amount
of hours were billed due to the complexity of the issues, the hours appeared to be
necessary to reach the desired outcome. Doc. #220 at p. 9. The court found that Sorg
had presented credible testimony that the services of Nancy’s attorney were necessary.
Id. at p. 13.
{¶ 109} In weighing the equities, the trial court was critical of Jay’s actions,
including his behavior in designating his trust rather than Nancy as a beneficiary on his
life insurance (even though the divorce decree clearly required him to designate Nancy),
and Jay’s choice to engage in a number of unilateral and self-help actions that caused
Nancy to have to pursue legal services that otherwise would not have been required and
delayed resolution of the property settlement. Id. at p. 10. The court specifically found
that Jay’s “attempts to unilaterally change the terms of the final decree are inequitable
and unjust” and that Nancy incurred the fees in order to protect her property rights. Id.
In addition, the court focused on the disparity in the parties’ incomes. Id.
{¶ 110} Furthermore, the court noted that Jay had “delayed in complying with
reasonable discovery request[s], causing [Nancy] to file motions to compel. [Nancy] has
5 Nancy made payments on the fees during the pendency of the action; this was the
remaining balance as of August 1, 2016.
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also had to respond to his contempt motions and the additional ancillary motions to
exclude her expert witnesses.” Id. at p. 11. The court further stressed that Jay’s actions
“contributed to the additional attorney fees,” and that his actions were “intentionally
designed [to] confuse, and confound [Nancy] into accepting assets without a set value or
with limited or restricted use which were not authorized in the Final Decree.” Id. at p. 13.
{¶ 111} We cannot find that the trial court abused its discretion in awarding
attorney fees. The court awarded less than half of the outstanding fees. Nancy’s expert
testified that the fee amounts were reasonable and necessarily incurred to obtain the
desired results, other than a few limited items, like legal research of 2.1 hours for debt
issues on June 2, 2016, matters totaling about 4.9 hours on an unrelated civil fraud case
in April 2016, and a total of 6.8 hours on July 27 and 28, 2016, for which there was no
description of the activity. These hours were billed at $225 per hour, for a total of $3,105.
Again, the trial court found Nancy’s expert credible.
{¶ 112} The court did discount the fee request substantially for some items that it
considered unrelated, repetitive, or clerical, based on the testimony of Jay’s expert.
Again, based on the totality of the circumstances, the trial court did not abuse its discretion
in awarding $40,000 in fees to Nancy. As the court noted, the parties’ incomes were far
from equal, and Jay’s actions caused Nancy to incur fees. We agree with the trial court.
{¶ 113} Accordingly, the Sixth Assignment of Error is overruled.
VIII. Fees Awarded to J.R. Hochwalt
{¶ 114} Jay’s Seventh Assignment of Error states that:
The Trial Court Abused Its Discretion and Its Findings Were Against
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the Manifest Weight of the Evidence in Awarding Attorney Fees to
Defendant's Expert, J. R. Hochwalt in the Amount of $11,000.00.
{¶ 115} Under this assignment of error, Jay contends that the trial court erred in
awarding Nancy $11,000 for payments made to her expert, J.R. Hochwalt. According to
Jay, Nancy was at fault for incurring these expenses because she failed to accept the fact
that $309,000 in IRA funds were properly transferred to her in December 2013 under the
decree. In this regard, Jay focuses on the testimony of his own expert, Mark Feuer, who
indicated that this money was appropriately transferred. However, Jay’s expert was not
the only one who testified.
{¶ 116} As was noted, R.C. 3105.73(B) allows post-judgment litigation fees to be
awarded “if the court finds the award equitable.” Again, under the totality of the
circumstances, we agree with the trial court that the award was equitable.
{¶ 117} As the trial court observed, Jay caused the need for expert assistance by
depositing $309,000 into Nancy’s IRA account without her consent or knowledge.
Contrary to the implication in Jay’s brief, Nancy’s attorney did not tell Jay’s attorney that
the transfer was permissible before it occurred. Instead, Crossman told Depoorter on
December 10, 2013, that QDROs did not apply to transfers of IRAs, and asked him to
forward the appropriate documents for dividing the accounts. See Defendant’s Ex. 2.
There was no dispute at the hearings about the fact that QDROs cannot be used to
transfer IRAs; even Jay’s expert, Mark Feuer, agreed with Crossman on this point. See
Transcript of June 9, 2016 Hearing, pp. 20-21.
{¶ 118} Instead of communicating further with Crossman, Jay and his attorney
unilaterally decided to transfer money into Nancy’s IRA account. Crossman’s letter of
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December 24, 2013, which again asked Depoorter to forward documents, occurred after
the transfers had been completed; Crossman clearly had no knowledge that transfers had
already occurred. See Plaintiff’s Ex. 4. Nancy also had no knowledge of the transfer,
which was done at a time when Jay still had control of her IRA account.
{¶ 119} Inexplicably, Depoorter contacted Crossman on March 20, 2014, to ask
that correct documents be sent to him for dividing the IRAs, when, in fact, the money had
already been unilaterally transferred three months earlier. See Defendant’s Ex. U, Bates
Stamp 00295.
{¶ 120} The trial court noted in its decision that the final divorce decree was
insufficient to transfer the IRAs into Nancy’s account without tax consequences, because
the decree did not award Nancy any part of Jay’s IRA. The court further commented that
the decree placed a duty on Jay to provide proper paperwork, which he failed to do. Doc.
#220 at pp. 16-17. In its decision, the court also stated that Nancy had a legitimate
concern over the transfer and appropriately contacted J.R. Hochwalt about the issue.
The court’s observations are supported by the record.
{¶ 121} After Nancy learned in January 2014 of the transfer, she attempted to have
Pershing reverse the transfer and also asked Pershing for documents concerning the
transfer. However, Pershing refused to comply with any of her requests. In March
2014, Nancy transferred her Pershing funds to AXA Equitable Insurance Company. She
stated that she did so to get the account away from Buckingham Capital Management’s
access so that her accounts were not further affected without her authorization.
{¶ 122} Nancy consulted with J.R. Hochwalt, who filed an amended 2013 tax
return for her. Hochwalt, a forensic accountant, and his partner, determined that an
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excess contribution had been made to Nancy’s IRA for 2013, and contacted the IRS
hotline to discuss the facts. Hochwalt also reviewed the divorce documents as well as
applicable IRS code sections and regulations.
{¶ 123} Hochwalt testified that there was no court order transferring the money,
and without such an order, his option as a certified public accountant was to report the
money as an excess contribution until the money was removed from Nancy’s account
and returned to its original source. According to Hochwalt, the IRS indicates that when
an excess contribution is made to an IRA, 6% of the total amount (in this case, around
$309,000) would have to be paid every year to the IRS as an excise tax until the money
was taken out and returned to its original source. This penalty amounted to $18,547 per
year, which Nancy paid for both 2013 and 2014.
{¶ 124} In addition to the amended 2013 return, which reported the excess
contribution, Hochwalt submitted Form 843 to the IRS. This form is used to obtain a
refund and abatement of excise tax. See Defendant’s Ex. I, Bates Stamp 00100. Along
with other documents (including the divorce decree), Hochwalt sent the IRS a copy of an
AXA statement, which indicated that AXA was going to treat the $309,000 deposit to
Nancy’s Pershing IRA as an excess contribution.
{¶ 125} The excess contribution was also reported on Nancy’s 2014 tax return,
because when the return was filed in 2015, Nancy had not yet been able to move the
money from an IRA account to a non-IRA account. Hochwalt again requested that the
IRS abate and refund the 6% excise tax. In August 2015, Hochwalt contacted the IRS
about the refund because the IRS had not made a decision. Subsequently, in
September 2015, the IRS informed Nancy that it had accepted her explanation for the
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overfunding, and that refunds would be issued. See Defendant’s Ex. YY.
{¶ 126} On January 8, 2016, Jay filed a motion asking the court to hold Nancy in
contempt for filing for an abatement in her taxes and for claiming that the funds transferred
to her IRA were not qualified. In the motion, Jay claimed that he believed it would be
necessary to file a Form 3949A with the IRS because of Nancy’s false claims to the IRS.
Jay filled out a Form 3949A, which was an informational form telling the IRS that Nancy
had been deceptive on her 2015 taxes. See Defendant’s Ex. SSS, Bates Stamp 000890.
According to Hochwalt, the form stated that for Nancy’s 2015 tax return, Nancy failed to
report $309,121, and that in 2015, she had transferred qualified IRA funds into a non-
qualified account without paying federal income tax. Hochwalt indicated that the
information Jay intended to send to the IRS was inaccurate.
{¶ 127} The trial court rejected Jay’s contempt motion, concluding that the decree
did not prohibit Nancy from contacting the IRS for any reason. In addition, the court
noted the statement of Jay’s attorney in a January 22, 2016 email that Jay had filed the
Form 3949A to inform the IRS of Jay’s position on the transfer into Nancy’s account. The
court concluded that Jay’s actions had originally caused Nancy to file the Form 843, which
was necessary to protect her property rights, and that Jay’s actions had also caused a
ripple effect that could result in an audit of both parties. Doc. #220 at pp. 5 and 13-14.
The court further observed that Nancy’s actions were not responsible for the possibility of
an audit. Id. at p. 14.
{¶ 128} It is true that Jay’s expert, Feuer, concluded that Jay’s transfer of funds
was appropriate. Feuer also stated that the IRS’s former decision does not mean that
Nancy’s position was correct, and that the IRS could choose to audit either party within
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certain time frames after their tax returns were filed.
{¶ 129} As was noted, this was a complicated case, and both sides presented
expert testimony to support their own motions for contempt and to defend against the
other party’s contempt motions. Based on the trial court’s discussion, it is evident that
the court found that Jay’s actions caused most of the problems, and that Nancy had to
consult experts to assist her in dealing with the effect of Jay’s actions. Jay did not
present evidence that Hochwalt’s fees were unreasonable; he simply argues that Nancy’s
expert should not be paid because he (Jay) was entitled, in his own expert’s view, to
transfer the funds. Again, R.C. 3105.73(B) allows litigation expenses based on equitable
concerns. On this record, we cannot find that the trial court abused its discretion in
requiring Jay to reimburse Nancy for the unilateral actions that he took. We also note
that the trial court found the accounting of Hochwalt more credible than the accounting of
Jay’s CPA. Doc. #220 at pp. 3-4.
{¶ 130} Accordingly, Jay’s Seventh Assignment of Error is overruled.
IX. Conclusion
{¶ 131} Assignments of Error I, II, III, V, VI, and VII having been overruled and
Assignment of Error IV having been sustained, the judgment of the trial court is affirmed
in part and reversed in part. The judgment of the trial court is reversed with respect to
the trial court’s award of expert fees for David Suich in the amount of $1,250. In all other
respects, the trial court’s judgment is affirmed.
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.............
TUCKER, J., concurs.
HALL, J., concurring,
{¶ 132} I agree with the well-reasoned analysis and disposition of Judge
Welbaum’s opinion. I write separately to make two points: (1) the failure to explicitly and
specifically describe on the record or in the Decree of Divorce the nature and extent of
the property settlement has led to confusion, and (2) due to that confusion, Jay’s contempt
should not partly be based on his purported tender, and Nancy’s non-acceptance, of the
$25,000 health savings account, although his other described post-decree actions are
sufficiently contemptuous.
{¶ 133} In the direct appeal from the Decree of Divorce, appellant contended that
the settlement agreement allowed Jay to pay Nancy’s $1.2 million distribution in four
installments from “qualified or non-qualified sources” but, Jay argued, the decree limited
that option. We held then that the decree did not require or limit any type of funds for
payment. But the term “qualified” is a misnomer. It is apparent that the parties intended
that the property division could be paid from either “tax-deferred or non-tax-deferred”
funds, regardless of whether a court-ordered QDRO was required. The term “qualified” in
“Qualified Domestic Relations Order” means that the order has been ”qualified” by the
pension or retirement plan as acceptable under the plan and ERISA. “Qualified” does not
necessarily mean what the parties here understood, that Jay could divide their property
using tax-deferred property, and if so, that portion of the property division would be
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taxable to Nancy, not upon transfer, but upon future use. What the decree did not
specify—an ambiguity the trial court correctly clarified—is whether Jay could create tax-
deferred accounts with after-acquired funds, transfer them to Nancy, and receive credit
for the full untaxed account value. We agree with the trial court that he cannot.
{¶ 134} Because of the preceding ambiguity, and our prior indication that Jay was
not limited in the type of funds for the property settlement, I do not believe that he should
be held in contempt in regard to his failed attempt to pay the $25,000 tax-deferred health
savings account simply because it is tax-deferred. On the other hand, if it was created
after the divorce with the intent to short-change Nancy’s property division, then I would
defer to the trial court’s finding. Nonetheless, there are several other actions we have
enumerated taken by Jay that adequately support the trial court’s contempt findings.
Copies mailed to:
Kent J. Depoorter
F. Ann Crossman
Michelle M. Maciorowski
Hon. Steven L. Hurley