Keaton v. Keaton

[Cite as Keaton v. Keaton, 2016-Ohio-231.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
KARIN B. KEATON :
:
Plaintiff-Appellant : C.A. CASE NO. 2014-CA-50
:
v. : T.C. NO. 12DR298
:
RICKY E. KEATON : (Civil appeal from Common Pleas
: Court, Domestic Relations)
Defendant-Appellee :
:
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OPINION
Rendered on the ___22nd___ day of ____January___, 2016.
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DAVID M. McNAMEE, Atty, Reg. No. 0068582 and MATTHEW J. BARBATO, Atty. Reg.
No. 0076058, 2625 Commons Blvd., Suite A, Beavercreek, Ohio 45431
Attorneys for Plaintiff-Appellant
DAVID L. PENDRY, Atty. Reg. No. 0002822, 133 East Market Street, Xenia, Ohio 45385
Attorney for Defendant-Appellee
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DONOVAN, P.J.
{¶ 1} Plaintiff-appellant Karin B. Keaton appeals from a decision of the Greene
County Court of Common Pleas, Domestic Relations Division, awarding attorney’s fees
to defendant-appellee Ricky E. Keaton, amending the division of the Ohio Public
Employees Retirement System (OPERS) property order in the parties’ final judgment and
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decree of divorce, and sentencing Karin to ten days in the Greene County Jail for being
found in contempt. Karin filed a timely notice of appeal with this Court on November 5,
2014.
{¶ 2} Ricky and Karin were married on April 13, 1976. The parties had one child
as a result of the marriage. On September 21, 2012, Karin filed a complaint for divorce.
Ricky filed an answer and counterclaim for divorce on November 29, 2012. On
December 17, 2012, the trial court issued an order requiring Ricky to pay a temporary
spousal support award of $500.00 per month retroactive to December 1, 2012.
{¶ 3} A Final Judgment and Decree of Divorce was filed on August 21, 2013,
thereby terminating the marriage. At the time that the parties divorced, their child was
emancipated. The divorce decree contained an equitable distribution of marital assets.
At issue in the instant appeal was a provision of the decree requiring Karin to sell two
Harley-Davidson motorcycles and a travel trailer jointly owned by the parties within thirty
days of the filing of the divorce decree. Upon selling the jointly owned property, Karin
was to remit half of the proceeds from the sale to Ricky.
{¶ 4} On October 9, 2013, Ricky filed motion to show cause why Karin should not
be held in contempt for failure to abide by the provisions in the divorce decree.
Specifically, Ricky asserted that the parties had negotiated with a third-party buyer for the
motorcycles and trailer for a price of $12,500.00. Ricky argued that despite the prior
negotiations, Karin had unilaterally decided to sell the motorcycles and trailer to another
party for $7,100.00. Moreover, Karin kept all of the proceeds from the sale and did not
divide them with Ricky as mandated by the divorce decree. Ricky also argued that Karin
intentionally failed to appear for a scheduled meeting between the parties at her attorney’s
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office on September 4, 2013.
{¶ 5} The record establishes that a hearing was held on January 30, 2014,
regarding Ricky’s motion to show cause. In a decision issued on March 20, 2014, the
trial court ordered the parties to complete the property distribution contemplated in the
divorce decree. The trial court also found Karin in contempt in light of her failure to follow
the terms of the divorce decree. The trial court ordered the parties to return for a
sentencing/compliance hearing on May 28, 2014, in order to determine what, if any,
progress had been made with respect to the property distribution and to provide Karin
with an opportunity to purge the contempt finding. On May 28, 2014, however, Karin
failed to appear for the hearing, and the trial court issued a bench warrant for her arrest.
{¶ 6} On July 1, 2014, Ricky filed a motion for attorney’s fees and for modification
of the divorce decree and property division order. On July 8, 2014, the trial court issued
a judgment entry recalling the bench warrant for Karin’s arrest and scheduled a hearing
on Ricky’s motion for attorney’s fees for October 13, 2014. At the hearing, the trial court
found Karin to be in contempt for failure to abide by the terms of the divorce decree. The
trial court ordered Karin to pay Ricky $5,720.00 in attorney’s fees, in addition to $6,250.00,
that sum representing one-half of the price of the two motorcycles and trailer, for an
aggregate total of $11,970.00. The trial court also ordered Karin to serve thirty days in
jail, but only required her to serve ten days of the sentence.
{¶ 7} It is from this judgment that Karin now appeals.
{¶ 8} Karin’s first assignment of error is as follows:
{¶ 9} “THE TRIAL COURT ERRED WHEN AWARDING ATTORNEY’S FEES TO
THE DEFENDANT.”
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{¶ 10} In her first assignment, Karin contends that the trial court erred when it
ordered her to pay Ricky $5,720.00 in attorney’s fees that were incurred as a result of her
violation of the divorce decree for which she was found in contempt. Initially, we note
that Karin does not challenge the trial court’s decision holding her in civil contempt.
Rather, she argues that the trial court erred when it ordered her to pay Ricky’s attorney’s
fees without first determining whether she had the ability to pay and still provide for her
own basic needs.
{¶ 11} R.C. 3105.73 provides as follows:
(A) In an action for divorce, * * * a court may award all or part of
reasonable attorney's fees and litigation expenses to either party if the court
finds the award equitable. In determining whether an award of fees 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.
{¶ 12} “The decision to award attorney's fees rests in the sound discretion of the
trial court and will not be overturned absent an abuse of that discretion. Layne v.
Layne (1992), 83 Ohio App. 3d 559, 568, 615 N.E.2d 332.” Gore v. Gore, 2d Dist. Greene
No. 09–CA–64, 2010–Ohio–3906, ¶ 34. In Gore, this Court noted that “ ‘[i]mportant
considerations when a trial court computes an award of attorney's fees include the time
and labor involved and the fee customarily charged in the locality.’ * * * We have also
said, however, that these are only two of many factors that a trial court should consider.
* * * The quality of work done is also a proper consideration. * * *.” Id. at ¶ 35.
{¶ 13} In support of her argument that the award of attorney’s fees was
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unreasonable because of her inability to pay, Karin cites two cases from the Eighth
Appellate District, Swanson v Swanson, 48 Ohio App. 2d 85, 355 N.E.2d 894 (8th
Dist.1976), and McCoy v. McCoy, 91 Ohio App. 3d 570, 632 N.E.2d 1358 (8th Dist.1993).
However, in both cases, the main issue concerned whether the trial court properly
awarded attorney’s fees as part of an alimony order. While the ex-spouse’s ability to pay
was a factor, the court in McCoy found that plaintiff's counsel offered itemized evidence
of the services rendered, the difficulties encountered and the reasonableness of the work
and the hourly rates charged. Id. at 584. Furthermore, the court noted that the evidence
of attorney fees was supported by expert testimony of an experienced domestic relations
practitioner. Id.
{¶ 14} At the hearing on October 13, 2014, Ricky offered the following testimony
of Pete Stephan, a veteran attorney who practiced in Greene County for approximately
thirty-six years:
Defense Counsel: And are you familiar with the fees that are
generally charged by attorneys within the community of Xenia and Greene
County?
Stephan: Yes.
Q: And have you practiced actively, in the past, in the area of
domestic relations law?
A: In the past, I have.
Q: And have other members of your law firm also been active in the
practice of domestic relations law?
A: Yes.
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Q: Mr. Stephan, I’d like to refer you specifically to Exhibit Sentencing
A, so that I can distinguish this hearing from other hearings, and I’m going
to ask if you can identify Exhibit A, to the best of your knowledge.
A: Yes. This is your billing statement in this case.
***
Q: And specifically, do you have any comments relative to the billing
statement that has been provided to you for the purposes of attorney’s fees
on the contempt matter in this case?
A: I have reviewed the billing statement marked as Exhibit
Sentencing A. I have reviewed it. I feel that it is fair and reasonable for
legal services in this area. I do note that there were 38 notations for time,
eight of which were more than an hour, which I find to be, quite frankly,
commendable because that showed that there was a real attempt to be
reasonable as far as your billing statement is concerned. That the two
most – the two areas that were the highest level of billing concern, concern
meetings with you and other individuals to divide or meet to attempt to settle
the case. And I note on your note it says that Ms. Keaton [Karin] did not
show for either one of those.
Your billing at $200.00 an hour, quite frankly, I feel is below the
normal for someone of your ability in Greene County, Ohio.
Q: Thank you. And what dates do the – does this billing statement
concern as far as the request for attorney’s fees?
A: 9-3 of 2013 until 8-7 of ’14.
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Q: And do you find this to be a fair billing statement for the services
provided in this particular case, pursuant to your review?
A: Yes.
{¶ 15} In addition to Attorney Stephan’s testimony regarding the reasonableness
of the fees charged by Ricky’s counsel, Karin provided no testimony with respect to her
alleged inability to pay. In fact, at the time of the award of attorney’s fees, Karin was
receiving approximately 47% of Ricky’s OPERS retirement distribution, which totaled
$1,100 per month. Moreover, the record established that Karin had kept approximately
$3,600.00 of Ricky’s money by unlawfully retaining all of the proceeds from the unilateral
sale of the two motorcycles and trailer in direct violation of the divorce decree and prior
court order.
{¶ 16} Ricky provided the trial court with an itemization of the time incurred by his
attorney, the expenses incurred during the contempt proceedings, and a summary of
the attorney fee expenses. Ricky also included evidence of the fee agreement between
himself and counsel. Significantly, Ricky presented the testimony of Attorney Stephan
who established that the attorney fees were both reasonable and necessary for domestic
relations litigation in Greene County, Ohio. Upon review, we cannot find anything in the
record which establishes that the award of attorney’s fees was unfounded, contrary to
law, or otherwise improper. Accordingly, we find that the trial court did not abuse its
discretion in ordering Karin to pay Ricky's attorney's fees incurred during the course of
the contempt proceedings.
{¶ 17} Karin’s first assignment of error is overruled.
{¶ 18} Karin’s second and final assignment of error is as follows:
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{¶ 19} “THE TRIAL COURT ERRED WHEN IT DETERMINED THE VALUE OF
THE 2000 HARLEY DAVIDSON, THE 2006 UTITLITY TRAILER AND THE 1993
HARLEY DAVIDSON.”
{¶ 20} In her final assignment, Karin argues that the trial court erred when it
determined the value of the two motorcycles and trailer to be $12,500.00. “A fair and
reasonable valuation,” we have said, is critical to an equitable division of marital property.
Young v. Young, 2d Dist. Clark No. 08-CA-59, 08-CA-61, 2009-Ohio-3504, ¶ 6, citing
Rammel v. Rammel, 2d Dist. Montgomery No. 14362, 1995 WL 21250, *3 (Jan. 20, 1995).
So a trial court's failure to explain how it arrived at a particular value “in sufficient detail
for us to understand the basis of its decision prevents our determination of the ultimate
issue,” that is, whether the award of the particular marital property “produced an equitable
division of the marital estate.” Id. A reviewing court is limited to determining whether a
trial court abused its discretion in making a property division. Bohme v. Bohme, 2d Dist.
Montgomery No. 26021, 2015-Ohio-339, ¶ 11.
{¶ 21} In reaching its decision regarding the value of the two motorcycles and the
trailer, the trial court stated the following:
*** The Court also will award to [Ricky] the sum of $6,250.00, representing
one-half interest in the two motorcycles and the trailer that were – that offers
were made for. *** [Karin] I should say, having indicated she has sold the
same for a lesser amount to different individuals, and those proposals were
made – there were two of them for $12,500.00, so [Ricky] is entitled to half
of that figure.
{¶ 22} Upon review, the record establishes that the trial court relied upon testimony
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regarding two written purchase proposals for the motorcycles and the trailer, each offering
$12,500.00, which both Ricky and Karin independently negotiated. Initially, we note that
evidence was adduced regarding a written contract between Karin and an individual
named William Studer for the purchase of the two motorcycles and the trailer. Moreover,
Ricky testified regarding a written contract he entered into with another individual named
Ed Baker for the purchase of the same items for the identical price. Both written
contracts were identified at the hearing and admitted into evidence.
{¶ 23} We note that Karin testified that she was offered the price of $12,500.00 for
the items by Studer through an installment payment plan, but she refused that offer.
After refusing that offer from Studer, Karin sold the two motorcycles and the trailer to
unidentified individuals for a total of $7,100.00, without first permitting Ricky’s potential
buyer, Baker, an opportunity to inspect and/or purchase the items for the previously
agreed upon price of $12,500.00. After selling the items for the significantly reduced
price of $7,100.00, Karin then kept all of the proceeds from the sale without distributing
one-half of the money to Ricky, in clear derogation of the terms of the divorce decree.
{¶ 24} In light of the foregoing, we find that the trial court's valuation of the two
motorcycles and the trailer at $12,500.00 was supported by competent and credible
evidence and that its conclusion was not an abuse of discretion. The trial court's
valuation was based upon two written proposals obtained independently from two
separate individuals by Karin and Ricky. The instant case is clearly distinguishable from
the case cited by Karin, Banning v. Banning, 2d Dist. Greene No. 95 CA 79, 1996 WL
354930 (June 28, 1996), in which we were unable to determine whether the property
distribution was equitable because the trial court failed to give any basis at all for its
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valuations. Id. at *2. The fact that Karin unilaterally chose to reject the proposal from
Studer and sell the marital property in question for significantly less than what had
previously been offered does not affect the trial court’s valuation regarding the equitable
distribution of the proceeds from the sale of said property. Considering the two written
contracts offering the same price admitted into the record, the trial court did not err when
it set the value of the two motorcycles and the trailer at $12,500.00.
{¶ 25} Karin’s second and final assignment of error is overruled.
{¶ 26} Both of Karin’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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FAIN, J. and FROELICH, J., concur.
Copies mailed to:
David M. McNamee
Matthew J. Barbato
David L. Pendry
Hon. J. Timothy Campbell
(by assignment)