[Cite as Morrison v. Walters,
2023-Ohio-2887.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
LISA A. MORRISON, : APPEAL NOS. C-220643
C-220644
Plaintiff-Appellee, : TRIAL NO. DR-2000523
:
VS. O P I N I O N.
:
FRANK S. WALTERS, :
Defendant-Appellant. :
Appeals From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 18, 2023
Zachary D. Smith, LLC, and Zachary D. Smith, for Plaintiff-Appellee,
Cornetet, Meyer, Rush & Stapleton and Karen P. Meyer, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Following the entry of a divorce decree terminating the marriage of
plaintiff-appellee Lisa Morrison and defendant-appellant Frank Walters, Ms.
Morrison filed a motion for contempt, arguing that Mr. Walters failed to comply with
the terms of the decree. The magistrate granted her motion, and subsequently the trial
court adopted the magistrate’s decision in full, prompting the instant appeal. After a
careful review of the record and arguments, we conclude that the trial court did not
abuse its discretion in any of the matters raised by Mr. Walters on appeal, and we
accordingly affirm the trial court’s judgment for the reasons explained more fully
below.
I.
{¶2} Mr. Walters and Ms. Morrison were married in July 1995, and no
children were born of their union. Their marriage was terminated by entry of a decree
of divorce in June 2021. Pursuant to the decree, the parties were required to cooperate
with one another to sell certain parcels of real property acquired during the marriage.
{¶3} Ms. Morrison believed that Mr. Walters failed to comply with the terms
of the decree, as he took unilateral action regarding the sale of four properties and
deducted certain items from the sale proceeds over her objections. Because those four
properties were listed in his name alone, he bore the personal tax liability. It appears
from the record that he hoped to recoup half of the taxes he paid personally on the sale
of the properties from Ms. Morrison’s portion of the proceeds. In response, Ms.
Morrison filed a motion for contempt in April 2022. Mr. Walters filed a number of
continuances after surviving a life-threatening assault (which Ms. Morrison portrays
as a drunken bar brawl) in June 2022. Eventually, two hearing dates were scheduled
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OHIO FIRST DISTRICT COURT OF APPEALS
for Ms. Morrison’s motion—one in October and a second (preserving the parties’
ability to present expert testimony) in November.
{¶4} After the October hearing, the magistrate vacated the second hearing
date scheduled for November 2022, deeming it unnecessary as neither party sought to
present expert testimony. The magistrate accordingly rendered a decision, concluding
that Mr. Walters acted in clear and obvious disregard of the court’s orders contained
in the decree. Based on its plain language, the divorce decree did not require the
parties to split the personal tax liability that fell upon Mr. Walters after the sale of the
four properties. The magistrate also found him in contempt for inappropriately
tacking on personal expenses to closing costs and for his failure to cooperate with Ms.
Morrison in the sale of one of the parties’ properties. In connection with these rulings,
the magistrate awarded attorney fees and costs to Ms. Morrison, consistent with her
request in her motion. Of note, Mr. Walters was unable to attend the October 2022
hearing (which Ms. Morrison blames on an Oktoberfest excursion in Germany), but
his lawyer participated in the hearing.
{¶5} Mr. Walters objected to the magistrate’s decision, but the trial court
adopted the magistrate’s decision in full. He timely appealed, asserting three
assignments of error.
II.
{¶6} In his first assignment of error, Mr. Walters contends that the trial court
abused its discretion when it refused to allow him to testify and present evidence at a
pre-approved continued-in-progress hearing. Specifically, he emphasizes that the
magistrate originally set two hearing dates and then, following the first hearing,
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OHIO FIRST DISTRICT COURT OF APPEALS
vacated the second hearing date. The trial court upheld the magistrate’s decision to
vacate the second hearing when it considered Mr. Walters’s objections.
{¶7} We review this scheduling question for an abuse of discretion. “Trial
courts are afforded considerable discretion when scheduling hearings.” Calhoun v.
Calhoun, 8th Dist. Cuyahoga No. 93369, 2010-Ohio-2347, ¶ 24, citing In re
Disqualification of Aubry,
117 Ohio St.3d 1245, 1246,
2006-Ohio-7231,
884 N.E.2d
1095. “A trial court’s decision on scheduling and continuing matters will not be
reversed absent an abuse of discretion.”
Id.
{¶8} The magistrate explained when he scheduled the hearings that the
second hearing was “set in advance for expert testimony.” (Emphasis added.) But
neither party identified an expert, provided an expert report, or otherwise indicated
an intention to present expert testimony at the second hearing. This obviated the need
for the second hearing, and Mr. Walters fails to identify what evidence, if any, he
sought to introduce at this cancelled hearing. He also does not fashion any argument
that the trial court’s decision prejudiced him or otherwise impacted the outcome of the
proceedings. Our review of the record accordingly does not reflect that the trial court
abused its discretion in vacating the second hearing.
{¶9} Walking hand-in-hand with that argument, Mr. Walters highlights his
absence at the October 2022 hearing (though his counsel attended), in a presumptive
effort to establish prejudice. However, Ms. Morrison introduced evidence of Mr.
Walters’s travels to Germany that suggest that he missed the first hearing for vacation,
and the record reflects that the court delayed the proceedings at multiple other
junctures due to his unavailability. Regardless, Mr. Walters does not proffer any
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OHIO FIRST DISTRICT COURT OF APPEALS
indication of what he would have testified about, which precludes us from finding any
abuse of discretion on the record at hand.
{¶10} Therefore, we overrule his first assignment of error.
III.
{¶11} In his second assignment of error, Mr. Walters claims that the trial court
erred in ordering him to pay Ms. Morrison’s attorney fees. He takes issue with the fact
that the court did not convene a hearing to determine the reasonableness of the fees
charged before ordering him to pay the fees.
{¶12} In any post-decree motion or proceeding that arises out of a divorce
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.” R.C. 3105.73(B). In
determining whether an attorney fee award is equitable, “the court may consider the
parties’ income, the conduct of the parties, and any other relevant factors the court
deems appropriate[.]” Id. We review a trial court’s award of attorney fees for an abuse
of discretion. Patterson v. Patterson,
197 Ohio App.3d 122,
2011-Ohio-5644,
966
N.E.2d 898, ¶ 7 (1st Dist.).
{¶13} Here, the court ordered Mr. Walters to pay the attorney fees and costs
incurred by Ms. Morrison throughout the contempt proceedings. After reviewing an
exhibit detailing the fees and costs incurred, the court concluded: “The Court has
carefully reviewed the exhibit and questioned Ms. Morrison’s Counsel on the record
regarding this accounting. The Court finds that the amount requested in attorney fees
is appropriate and reasonable.” (Emphasis added.) The magistrate emphasized:
Mr. Walters, through counsel, offered no objection to the amount of
attorney fees proffered to the Court. The Court also notes that Mr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Walter’s [sic] conduct which underlined the filing in this case, was of a
nature that Ms. Morrison was forced to bring this action to recover her
losses. Mr. Walters, during the pendency of this motion, has
unnecessarily delayed the litigation and forced both parties to incur
additional attorney fees and costs, which would not have been
necessary.
{¶14} The trial court complied with the requirements of R.C. 3105.73(B) in
considering the conduct of the parties (Mr. Walters’s conduct causing the filing of the
motion as well as his actions that delayed the proceedings) and other relevant factors
(the fact that he offered no objection to the amount of attorney fees proffered as well
as the evidence and testimony from Ms. Morrison’s attorney regarding the fees).
{¶15} Mr. Walters nevertheless points us toward Zerbe v. Zerbe, 1st Dist.
Hamilton Nos. C-040035 and C-040036, 2005-Ohio-1180, to argue that the trial court
was required to hold a hearing on the matter of the reasonableness of the fees.
However, Zerbe actually holds that “[a] hearing on a request for attorney fees may not
always be necessary.”
Zerbe at ¶ 5. The opinion goes on to clarify: “[A]t a minimum,
the record must contain some evidence of the reasonableness of the fees.”
Id. And
“[t]he movant bears the burden to present evidence of the services performed and the
reasonable value of those services.”
Id. Here, the movant satisfied her burden and
Mr. Walters failed to object to the fees before the magistrate, obviating the need for a
hearing. Indeed, Mr. Walters fails to elucidate what evidence would have been
presented at such a hearing, or how such evidence would have impacted the trial
court’s decision.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} The record contains sufficient evidence of the reasonableness of the
fees. Ms. Morrison bore her burden to present evidence of the services performed by
her attorney and the reasonable value of those services. Her attorney testified, in great
detail, on the topic of his fees at the October 2022 hearing, and he also submitted an
affidavit detailing his fees and costs. The affidavit set forth the attorney’s experience,
reputation, description of practice concentration, the length of his professional
relationship with Ms. Morrison, a breakdown of the amount by date and employee
billing, the hourly fee amount for each person who worked on the case, and the time,
skill, and labor involved in incurring the fees. The trial court was able to evaluate the
testimony and evidence in reaching its decision. Because the record contained
adequate evidence of the reasonableness of the fees, the court was not required to
convene a separate hearing on the matter, particularly in the absence of any challenge
to the amount of fees.
{¶17} Finally, as discussed above, the court otherwise complied with the
statutory requirements of an attorney fee award in a post-decree proceeding.
Accordingly, we overrule Mr. Walters’s second assignment of error.
IV.
{¶18} In his third assignment of error, Mr. Walters argues that the trial court
abused its discretion when it found him in contempt of court for failing to comply with
the terms of the parties’ divorce decree.
{¶19} “A prima facie case of civil contempt is made when the moving party
proves both the existence of a court order and the nonmoving party’s noncompliance
with the terms of that order.” Wolf v. Wolf, 1st Dist. Hamilton No. C-090587, 2010-
Ohio-2762, ¶ 4, citing Abernethy v. Abernethy, 8th Dist. Cuyahoga No. 92708, 2010-
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio-435. “ ‘A finding of civil contempt requires clear and convincing evidence that
the alleged contemnor has failed to comply with the court’s prior orders.’ ” Swanson
v. Schoonover, 8th Dist. Cuyahoga Nos. 95213, 95517 and 95570, 2011-Ohio-2264, ¶
14, quoting Moraine v. Steger Motors, Inc.,
111 Ohio App.3d 265, 268,
675 N.E.2d
1345 (1996). And a trial court’s finding of contempt must be upheld absent an abuse
of discretion. See Wolf at ¶ 4.
{¶20} There is no dispute regarding the existence of a court order, so we turn
to whether clear and convincing evidence established that Mr. Walters failed to comply
with the court’s prior order. During their marriage, the parties acquired five rental
real estate properties. The divorce decree required the parties to sell all of the
properties, and upon the sale of each, “the proceeds that remain after payment of liens,
taxes and other necessary costs of sale shall be equally divided.” The order did not
provide for withholding of a certain portion of Ms. Morrison’s half of the proceeds to
pay for Mr. Walters’s personal property taxes.
{¶21} The court accordingly determined that, pursuant to the terms of the
order, each party bore responsibility for his or her own personal financial obligations.
Mr. Walters admitted that he withheld some money from Ms. Morrison’s half of the
remaining proceeds of the property sales to cover his own personal tax liability. Clear
and convincing evidence therefore existed that he failed to comply with the terms of
the court’s prior order. We cannot say that the trial court abused its discretion in this
matter, so we overrule the third assignment of error.
…
{¶22} In light of the foregoing analysis, we overrule all three of Mr. Walters’s
assignments of error and affirm the judgment of the trial court.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed.
ZAYAS, P.J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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