Wildman v. Wildman ( 2012 )

[Cite as Wildman v. Wildman, 2012-Ohio-5090.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NATALIE E. WILDMAN : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
TERRANCE A. WILDMAN, JR. : Case No. 12-CA-21
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Division,
Case No. 09DR1605
JUDGMENT: Affirmed/Reversed in Part and
Remanded
DATE OF JUDGMENT: November 1, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEPHEN E. SCHALLER ROBERT C. HETTERSCHEIDT
P.O. Box 309 580 South High Street
Newark, OH 43058 Suite 200
Columbus, OH 43215
Guardian ad Litem
SANDRA L. BRANDON
P.O. Box 160
Rockbridge, OH 43149
Licking County, Case No. 12-CA-21 2
Farmer, J.
{¶1} On May 3, 1997, appellant, Terrance Wildman, Jr., and appellee, Natalie
Wildman, were married. The parties had three children, Kennedy born April 28, 2000,
Parker born September 12, 2001, and Avery born April 18, 2004. On November 13,
2009, appellee filed a complaint for divorce.
{¶2} A hearing was held on June 23, 2011. By judgment entry decree of
divorce filed February 24, 2012, the trial court granted the parties a divorce and set forth
orders on parental rights and responsibilities, child support, spousal support, attorney
fees, and property division. The trial court also found appellant in contempt for violating
child support and discovery orders. Findings of fact and conclusions of law were filed
on April 30, 2012.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED AS A MATTER OF FACT WHEN IT
DETERMINED APPELLANT'S ANNUAL INCOME TO BE $104,766.00 ANNUALLY."
II
{¶5} "THE TRIAL COURT ERRED AS A MATTER OF FACT WHEN IT
DETERMINED THE APPELLANT'S CHILD SUPPORT OBLIGATION TO BE $456.31
PER MONTH PER CHILD FOR A TOTAL OF $1368.92 PER MONTH."
Licking County, Case No. 12-CA-21 3
III
{¶6} "THE TRIAL COURT ERRED AS A MATTER OF FACT AND ABUSED
ITS DISCRETION WHEN IT DETERMINED THE APPELLANT'S SPOUSAL SUPPORT
OBLIGATION TO BE $1800.00 PER MONTH."
IV
{¶7} "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
CALCULATED THE APPELLANT'S ACCUMULATED REMAINING SICK LEAVE TO
BE WORTH $15,831.00 AND HIS ACCUMULATED REMAINING VACATION TIME TO
BE WORTH $9,700.00"
V
{¶8} "THE TRIAL COURT ERRED WHEN IT ASSIGNED AND DISTRIBUTED
A TAX REFUND OF $5901.00 TO THE APPELLANT."
VI
{¶9} "THE TRIAL COURT ERRED WHEN IT ASSIGNED TO THE
APPELLANT IN ITS DIVISION OF PROPERTY THE $5,012.15 THAT THE
APPELLANT WITHDREW FROM HIS OHIO DEFERRED COMPENSATION
ACCOUNT."
VII
{¶10} "THE TRIAL COURT ERRED WHEN IT INCLUDED IN ITS PROPERTY
DIVISION AND ASSIGNED TO THE APPELLANT THE $3031.20 THAT HE RECEIVED
FOR A PORTION OF HIS SICK LEAVE."
Licking County, Case No. 12-CA-21 4
VIII
{¶11} "THE TRIAL COURT ERRED WHEN IT ASSIGNED A DEBT TO THE
APPELLEE'S MOTHER TO THE APPELLEE'S SIDE OF THE DISTRIBUTION."
IX
{¶12} "THE TRIAL COURT ERRED IN ITS DISTRIBUTION OF PROPERTY
SUMMARY."
X
{¶13} "THE TRIAL COURT ERRED WHEN IT FOUND THE APPELLANT IN
CONTEMPT OF COURT."
XI
{¶14} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS
ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES WITH REGARD TO
THE PARTIES' MINOR CHILDREN."
XII
{¶15} "THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES IN THE
AMOUNT OF $15,000.00 TO BE PAID BY THE APPELLANT TO THE APPELLEE."
I, II
{¶16} Appellant claims the trial court erred in determining his annual income to
be $104,766.00, and as a result, his child support obligation is incorrect. We disagree.
{¶17} R.C. 3119.01(C)(7) defines "gross income" as follows:
"Gross income" means, except as excluded in division (C)(7) of this
section, the total of all earned and unearned income from all sources
Licking County, Case No. 12-CA-21 5
during a calendar year, whether or not the income is taxable, and includes
income from salaries, wages, overtime pay, and bonuses to the extent
described in division (D) of section 3119.05 of the Revised Code;
commissions; royalties; tips; rents; dividends; severance pay; pensions;
interest; trust income; annuities; social security benefits, including
retirement, disability, and survivor benefits that are not means-tested;
workers' compensation benefits; unemployment insurance benefits;
disability insurance benefits; benefits that are not means-tested and that
are received by and in the possession of the veteran who is the
beneficiary for any service-connected disability under a program or law
administered by the United States department of veterans' affairs or
veterans' administration; spousal support actually received; and all other
sources of income.
{¶18} Because a determination of gross income is a factual finding, we will
review the trial court's decision to determine whether it is supported by competent
credible evidence. Fallang v. Fallang, 109 Ohio App.3d 543 (12th Dist. 1996).
{¶19} Appellant argues the trial court should have determined his annual income
to be $80,413.66. In determining appellant's income to be $104,766.00, the trial court
found the following in its findings of fact and conclusions of law filed April 30, 2012:
The Court finds that in the discovery process, the plaintiff made
repeated efforts to obtain historical income information from the
Licking County, Case No. 12-CA-21 6
defendant. Upon cross-examination, the defendant was still not able to
provide sufficient information regarding his bonus and overtime income for
2008, 2009, and 2010.
As a result, this Court is left with relying upon the defendant's
paystub for his pay period ending March 19, 2011, to calculate his 2010
anticipated income for the purpose of preparing the basic child support
worksheet (R.C. 3119.021) and in considering the merits of an award of
spousal support.
Utilizing the defendant's year-to-date income of $25,863.47, and
deducting those sums that he received when he cashed in his sick leave
of $3,031, and his one-time, annual, uniform allowance of $850, leaves
year-to-date earnings of $21,982.47. Extrapolating those gross earnings
for the remainder of the year, and adding back in the $850 uniform
earnings, would suggest 2010 gross income of $104,766. According, this
Court finds from the evidence that the defendant will earn annual gross
income of $104,766. In arriving at this number, the Court has also taken
into consideration that in 2010, the defendant enjoyed gross earnings of
some $78,272 and has since been promoted to Lieutenant with a
corresponding raise in his base salary.
{¶20} The evidence presented included appellant's pay stub for the pay period
ending March 19, 2011 (Plaintiff's Exhibit No. 3). T. at 30. Appellant did not provide
any information on bonus and overtime income for 2008, 2009, and 2010. T. at 31. He
Licking County, Case No. 12-CA-21 7
was not able to project overtime or shift differential income for 2011 as he was recently
promoted to lieutenant which included a pay increase. T. at 113-114, 115-116, 128-
129.
{¶21} Given the limited evidence presented, we find the trial court's
determination in extrapolating appellant's income to be $104,766.00 to be supported by
competent credible evidence. T. at 30-32, 116-117, 128-130. Appellant's child support
obligation based on $104,766.00 of income is correct.
{¶22} Assignments of Error I and II are denied.
III
{¶23} Appellant claims the trial court erred in determining the amount of his
spousal support obligation. We disagree.
{¶24} The trial court is provided with broad discretion in deciding what is
equitable upon the facts and circumstances of each case. Cherry v. Cherry, 66 Ohio
St.2d 348 (1981). We cannot substitute our judgment for that of the trial court unless,
when considering the totality of the circumstances, the trial court abused its discretion.
Holcomb. v. Holcomb, 44 Ohio St.3d 128 (1989). In order to find an abuse of that
discretion, we must determine the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217 (1983).
{¶25} In its judgment entry decree of divorce filed February 24, 2012, the trial
court went through all of the factors set forth in R.C. 3105.18(C)(1) and ordered
appellant to pay appellee spousal support in the amount of $1,800.00 per month for
Licking County, Case No. 12-CA-21 8
thirty-six months or until appellee remarries, cohabitates with an unrelated male or
either party dies. The trial court reserved jurisdiction over the spousal support award.
{¶26} Appellant argues his spousal support obligation should be $483.08 per
month, basing the amount on his "actual income" of $80,413.00. In Assignment of Error
I, this court affirmed the trial court's determination of $104,766.00 for appellant's
income.
{¶27} The marriage was of 14 years, appellee has an imputed income of
$23,920.00, and appellee is the residential parent of the three minor children.
{¶28} The trial court clearly considered all of the factors under R.C.
3105.18(C)(1) and specified the weight it attached to each factor. Upon review, we do
not find an abuse of discretion in the spousal support award.
{¶29} Assignment of Error III is denied.
IV
{¶30} Appellant claims the trial court erred in determining the amounts of his
accumulated sick leave to be $15,831.00 and his accumulated vacation time to be
$9,700.00. We disagree.
{¶31} Prior to the hearing, the parties filed stipulations (Court's Exhibit No. 1),
and stipulated that their marriage lasted over fourteen years. The parties further
stipulated that appellant's base salary was $35.75 per hour and he had accumulated
805.120 hours of sick leave and 271.345 hours of vacation time which are all consistent
with his pay stub for the pay period ending March 19, 2011 (Plaintiff's Exhibit No. 3).
Appellant testified he would have sixteen years of service on September 10, 2011. T. at
39.
Licking County, Case No. 12-CA-21 9
{¶32} Appellant argues the time he accumulated during the approximate twenty
months prior to the marriage was his separate property.
{¶33} Given appellant's remaining accumulated hours of sick and vacation time,
appellant clearly took sick and vacation time during his sixteen years of employment. In
fact, appellant received an accumulated sick leave payout of $3,031.00. T. at 33.
Deductions for sick and vacation time are taken from the beginning of the
accumulations i.e., when appellant was single. Therefore, the remaining accumulated
hours constituted marital property.
{¶34} Upon review, we find the trial court did not err in determining the amounts
of appellant's accumulated sick and vacation time.
{¶35} Assignment of Error IV is denied.
V, VI, VII, VIII, IX
{¶36} Appellant claims the trial court erred in its division of property. We agree
in part.
{¶37} We will review these assignments of error under the abuse of discretion
standard. Cherry, supra; Blakemore, supra.
{¶38} R.C. 3105.171(A)(3)(a) defines "marital property" as follows:
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;
Licking County, Case No. 12-CA-21 10
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;
Except as otherwise provided in this section, all income and
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;
A participant account, as defined in section 148.01 of the Revised
Code, of either of the spouses, to the extent of the following: the moneys
that have been deferred by a continuing member or participating
employee, as defined in that section, and that have been transmitted to
the Ohio public employees deferred compensation board during the
marriage and any income that is derived from the investment of those
moneys during the marriage; the moneys that have been deferred by an
officer or employee of a municipal corporation and that have been
transmitted to the governing board, administrator, depository, or trustee of
the deferred compensation program of the municipal corporation during
the marriage and any income that is derived from the investment of those
moneys during the marriage; or the moneys that have been deferred by an
officer or employee of a government unit, as defined in section 148.06 of
the Revised Code, and that have been transmitted to the governing board,
Licking County, Case No. 12-CA-21 11
as defined in that section, during the marriage and any income that is
derived from the investment of those moneys during the marriage.
TAX REFUND
{¶39} Appellant claims the trial court erred in assigning to him a tax refund of
$5,901.00. Appellant received the tax return and used it to pay bills. T. at 27, 29.
{¶40} Pursuant to Court's Exhibit No. 1 at ¶ 15, the parties stipulated: "[t]he
parties filed separate federal and state tax returns for the 2010 tax year. As a result, the
plaintiff received a refund of $856 and the defendant received a refund of $5,801. Both
refunds represent marital property subject to equitable distribution."
{¶41} Given the stipulation, we find the trial court did not abuse its discretion in
assigning the tax refund to appellant.
DEFERRED COMPENSATION
{¶42} Appellant claims the trial court erred in assigning to him the amount he
had withdrawn from his deferred compensation account, $5,012.15.
{¶43} The complaint for divorce was filed on November 13, 2009. Appellant
withdrew the amount from his account on November 16, 2009 as so stipulated by the
parties. T. at 37-38; Plaintiff's Exhibit No. 6.
{¶44} We find the trial court did not abuse its discretion in finding the withdrawal
to be marital property and assigning it to appellant.
Licking County, Case No. 12-CA-21 12
SICK LEAVE
{¶45} Appellant claims the trial court erred in assigning to him the amount he
received as a sick leave payout, $3,031.20, during the pendency of the divorce.
Appellant received the payout and used it to pay bills. T. at 33-34.
{¶46} Pursuant to findings of fact and conclusions of law filed April 30, 2012 at ¶
14, the trial court found the following:
The Court further finds that the defendant conceded that in the first
pay quarter of 2011, he "cashed in" a portion of his sick leave and
received $3,031.20. This Court finds this amount to be a marital asset
and would further note that his decision to remove those funds was in
direct violation of this Court's temporary restraining order of November 13,
2009.
{¶47} The November 13, 2009 order restrained appellant from "disposing of,
selling, secreting, destroying, removing, or encumbering any of the property or assets of
the parties, during the pendency of this action."
{¶48} We find the trial court did not abuse its discretion in finding the payout to
be marital property and assigning it to appellant.
DEBT TO APPELLEE'S MOTHER
{¶49} Appellant claims the trial court erred in assigning to appellee an
outstanding debt to her mother.
Licking County, Case No. 12-CA-21 13
{¶50} Pursuant to the judgment entry decree of divorce filed February 24, 2012
at ¶ 11, the trial court ordered: "[e]ach party shall pay and hold the other harmless on
any debt in their own individual name including any debt to their respective families.
The Court finds that the plaintiff's debt to Patricia Landis is marital debt."
{¶51} Plaintiff's Exhibit No. 9 outlines the amounts appellee received from her
mother, Patricia Landis. Appellant stipulated to the exhibit. T. at 58. Appellee testified
her and appellant borrowed the money and agreed to pay her mother back. T. at 64.
There was no further testimony from either party regarding this issue.
{¶52} Plaintiff's Exhibit No. 9 includes the borrowing of $1,395.00 for three van
payments and $3,500.00 for attorney fees. The van is appellee's vehicle. T. at 48.
Pursuant to the temporary orders filed May 10, 2010, appellee was ordered to pay her
vehicle lease. In addition, in Court's Exhibit No. 8, the parties stipulated that "[e]ach
party will retain his/her own motor vehicle(s) and shall assume, pay, and hold the other
harmless upon the indebtedness associated with his/her vehicle(s)." Therefore, the
$1,395.00 amount is solely appellee's responsibility. As for the attorney fees, appellant
was ordered to reimburse appellee $15,000.00 for her attorney fees as discussed in
Assignment of Error XII. Including the $3,500.00 in the Landis debt would in effect
cause appellant to pay this amount twice.
{¶53} We find the trial court did not abuse its discretion in finding the debt to
appellee's mother to be marital property and assigning it to appellee save for the
amount of $4,895.00 as discussed above.
Licking County, Case No. 12-CA-21 14
DISTRIBUTION OF PROPERTY SUMMARY
{¶54} Appellant claims the trial court erred in its distribution of property
summary.
{¶55} Given our decision under these assignments, we find the trial court's
property summary (Attachment 2 to the February 24, 2012 Judgment Entry Decree of
Divorce) to be equitable except for the change in the Landis debt. The Landis debt in
appellee's column shall be reduced by $4,895.00, from $10,196.00 to $5,301.00. The
trial court shall enter a new property summary and judgment based upon this change.
{¶56} Assignments of Error V, VI, and VII are denied. Assignments of Error VIII
and IX are granted in part.
X
{¶57} Appellant claims the trial court erred in finding him in contempt of court.
We disagree.
{¶58} An appellate court's standard of review of a trial court's contempt finding is
abuse of discretion. State ex rel. Celebrezze v. Gibbs, 60 Ohio St.3d 69 (1991);
Blakemore, supra.
{¶59} In its judgment entry decree of divorce filed February 24, 2012, the trial
court found the following:
The defendant is found to be in contempt for his failure to abide by
the orders of this Court in regards to his payment of child support and
orders compelling discovery. The defendant is sentenced to 10 days
incarceration at the Licking County Justice Center. The defendant's
Licking County, Case No. 12-CA-21 15
sentence shall be suspended and he shall be given the opportunity to
purge his contempt by paying arrearage of $5,392.52 within one year and
by complying with all future orders of this Court. Plaintiff shall be awarded
judgment in her favor against the defendant in the amount of $5,392.52 as
of June 2, 2011 along with statutory interest from that date.
{¶60} In its findings of fact and conclusions of law filed April 30, 2012, the trial
court found the following:
The Court finds that in the discovery process, the plaintiff made
repeated efforts to obtain historical income information from the
defendant. Upon cross-examination, the defendant was still not able to
provide sufficient information regarding his bonus and overtime income for
2008, 2009, and 2010.
The Court finds that as of June 2, 2011, there is a support
arrearage of $5,392.57, due and owing by the defendant. Based upon the
evidence admitted into the record, this Court finds that the defendant has
failed to abide by the temporary orders of this Court and has failed to
demonstrate a bona fide defense to his failure to do so.
{¶61} On May 10, 2010, temporary orders were issued on child and spousal
support retroactive to April 3, 2010. Appellant argues his inability to pay his arrearages
Licking County, Case No. 12-CA-21 16
was not intentional as he started out behind because the temporary orders were made
retroactive.
{¶62} According to appellant's 2010 tax return (Plaintiff's Exhibit No. 2), he
earned approximately $78,000.00 and received a refund of $5,801.00. T. at 25-27.
Appellant also received $3,031.00 from cashing in accumulated sick leave. T. at 33.
Appellant used the funds to pay bills and purchase items instead of pay on his
arrearages. T. at 26, 29, 34.
{¶63} Upon review, we find the trial court did not abuse its discretion in finding
appellant in contempt of court for failing to abide by the temporary orders of child and
spousal support.
{¶64} Appellant further argues he was unable to provide discovery on his
overtime pay as the parameters for overtime changed due to his promotion.
{¶65} Pursuant to two separate orders to compel (February 28, and April 15,
2011), the trial court ordered appellant to comply with appellee's request for production
of documents and first set of interrogatories. At the time of trial on June 6, 2011,
appellant was still unable to comply with the requests for bonus and overtime income for
2008, 2009, and 2010. T. at 31.
{¶66} Upon review, we find the trial court did not abuse its discretion in finding
appellant in contempt of court for failing to abide by the orders to compel discovery.
{¶67} In addition, we note the trial court gave appellant the opportunity to purge
himself of contempt. The trial court ordered appellant to pay the $5,392.52 within one
year which is reasonable given appellant's income.
{¶68} Assignment of Error X is denied.
Licking County, Case No. 12-CA-21 17
XI
{¶69} Appellant claims the trial court erred in allocating the parties' parental
rights and responsibilities. Specifically, appellant claims the trial court erred in
permitting him to visit with his children only twice per week for two hours each time,
ordering him to undergo drug and alcohol evaluation and follow any recommended
treatment plans, and denying overnight visits until all of the programs were completed
and it reviewed the follow-up investigation and report of the guardian ad litem. We
disagree.
{¶70} Matters concerning visitation rest in the trial court's sound discretion.
Booth v. Booth, 44 Ohio St.3d 142 (1989); Blakemore.
{¶71} In its judgment entry decree of divorce filed February 24, 2012, the trial
court ordered visitation as follows:
The defendant shall have visitation with the children twice a week
for 2-hour blocks on his days off or a time off for a duration of four weeks.
After four weeks the defendant may have visitation with the children
for two days a week on his days off. No overnight visitation at this time.
The defendant shall personally be present during his visitation times.
The defendant shall immediately undergo drug and alcohol intake
and assessment at Shepard Hill in Newark, Ohio and shall satisfactorily
complete any treatment programs recommended by the
counselor.***Upon completion of said treatment program(s) and at the
request of the defendant, the guardian shall perform a follow-up review
Licking County, Case No. 12-CA-21 18
and evaluation to determine whether or not the defendant should be
entitled to overnight and/or extended visits with is children. The guardian
shall further determine whether or not the defendant's future
companionship should be supervised or otherwise limited. Said
recommendation shall be submitted to the Court and the matter will be
scheduled for oral hearing on the motion of either party.
The defendant shall not consume alcohol or other controlled
substance during the period commencing 24 hours prior to or during his
parenting time with the children.***
The Court enters this order based upon its consideration of the
overall relevant evidence admitted into the record and upon the
consideration of this evidence in light of the "best interest" factors set forth
in ORD Section 3109.051 (D).
{¶72} In its findings of fact and conclusions of law filed April 30, 2012, the trial
court found the following:
Pursuant to Local Rule 29 and Rule 48 of the Rules of
Superintendence, the duly appointed Guardian as Litem filed her report
with the Court Administrator. This Court has reviewed and admitted the
report into evidence as provided by Rule.
Licking County, Case No. 12-CA-21 19
The Court finds that neither party chose to examine the Guardian
and she was released immediately prior to the commencement of the
hearing.
{¶73} The trial court also found:
The Court finds from the evidence adduced that the best interests
of the minor children would be best served by continuing the plaintiff as
the residential parent and legal custodian. In coming to that conclusion
and determining the best interests of the children, this Court has
considered the findings and recommendations of the duly appointed
Guardian ad Litem and those factors set forth at R.C. 3109.04(F)(1). The
Court considered the evidence regarding the history and record of the
defendant's relationship with the children, his abuse of alcohol and his
history of visitation during the pendency of the divorce.
{¶74} As noted by the trial court, neither party examined the guardian ad litem
and in fact, appellant stipulated to the report. T. at 62. Appellant agreed with the
guardian's recommendation. T. at 11-12. The report has not been provided to this
court for review.
{¶75} Appellee stated she had concerns about the well-being and safety of the
children in appellant's care due to appellant's "alcohol intake being high" on prior
occasions. T. at 60.
Licking County, Case No. 12-CA-21 20
{¶76} Given the evidence presented, we find the trial court did not abuse its
discretion in its visitation order.
{¶77} Assignment of Error XI is denied.
XII
{¶78} Appellant claims the trial court erred in awarding appellee attorney fees in
the amount of $15,000.00. We disagree.
{¶79} The awarding of attorney fees rests in the trial court's sound discretion.
Howell v. Howell, 167 Ohio App.3d 431, 2006-Ohio-3038 (2nd Dist.); Blakemore, supra.
{¶80} R.C. 3105.73 governs the award of attorney fees and litigation expenses
in domestic relations cases. Subsection (A) states the following:
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.
{¶81} In its judgment entry decree of divorce filed February 24, 2012, the trial
court ordered the following:
Licking County, Case No. 12-CA-21 21
Each party shall pay their own attorney fees, however, the
defendant shall within three years reimburse the plaintiff $15,000.00 plus
statutory interest for her attorney fees. $1,000.00 of these fees relate to
the contempt action above.
The Court has reviewed, considered ORC 3105.73 and finds this
order equitable. The Court specifically considered the income and assets
of the parties and the conduct of the defendant.
{¶82} In its findings of fact and conclusions of law filed April 30, 2012, the trial
court found the following:
Pursuant to that (sic) authority of R.C. 3105.73, the Court finds it
equitable to award plaintiff judgment in the amount of Fifteen Thousand
Dollars ($15,000.00), for her fees and expenses. Said judgment shall
bear statutory interest from June 6, 2011. In arriving at this decision, the
Court considered the conduct of the defendant; the finding of contempt
and Rule 37 Sanctions; the two Orders compelling compliance; and, the
assets and income of the parties.
{¶83} Plaintiff's Exhibit No. 8 is appellee's attorney's affidavit on attorney fees.
Mr. Schaler averred that appellee has incurred total attorney fees of $9,421.72 as of
June 3, 2011, with $1,079.50 attributed to the contempt motion. Mr. Schaler further
Licking County, Case No. 12-CA-21 22
averred that appellee would incur another $3,500.00 to $4,000.00 to finalize the matter.
Appellant stipulated to the exhibit and the rate and work performed. T. at 59.
{¶84} Given the stipulation and the parties' assets and relative incomes as well
as appellant's conduct, all discussed supra, we find the trial court did not abuse its
discretion in awarding appellee attorney fees in the amount of $15,000.00.
{¶85} Assignment of Error XII is denied.
{¶86} The judgment of the Court of Common Pleas of Licking County, Ohio,
Domestic Relations Division is hereby affirmed in part and reversed in part.
By Farmer, J.
Gwin, P.J. and
Hoffman, J. concur.
_s / Shelia G. Farmer______________
_s / W. Scott Gwin_______________
_s / William B. Hoffman___________
JUDGES
SGF/db 921
[Cite as Wildman v. Wildman, 2012-Ohio-5090.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NATALIE E. WILDMAN :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TERRANCE A. WILDMAN, JR. :
:
Defendant-Appellant : CASE NO. 12-CA-21
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio, Domestic Relations
Division is affirmed in part and reversed in part, and the matter is remanded to said
court for further proceedings consistent with this opinion. Costs to appellant.
_s / Shelia G. Farmer______________
_s / W. Scott Gwin_______________
_s / William B. Hoffman___________
JUDGES