[Cite as Lichtenstein v. Lichtenstein,
2023-Ohio-3355.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
RYAN LICHTENSTEIN, :
Plaintiff-Appellee, :
Nos. 111887 and 112340
v. :
MELISSA LICHTENSTEIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 21, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-16-362842
Appearances:
McCarthy Lebit Crystal & Liffman Co., LPA, Richard A.
Rabb, and Rebekah Cline, for appellee.
Law Offices of Anne S. Magyaros, LLC, and Anne S.
Magyaros, for appellant.
LISA B. FORBES, J.:
Appellant Melissa Lichtenstein (“Wife”) appeals two journal entries
dated August 1, 2022, regarding issues of child support, certain marital assets, and
attorney fees in connection with these divorce proceedings, and two additional
journal entries dated April 28, 2022, and January 11, 2023, related to temporary
support. After reviewing the facts of the case and the pertinent law, we affirm.
I. Procedural History
Wife and Ryan Lichtenstein (“Husband”) were married on June 15,
2012, and had one child, A.L., in 2013. Husband filed for divorce on July 1, 2016;
Wife filed a counterclaim for divorce. The facts of this case are fully detailed in the
first appeal to this court in Lichtenstein v. Lichtenstein, 8th Dist. Cuyahoga No.
108854, 2020-Ohio-5080 (“Lichtenstein I”). A brief summary of the procedural
history pertinent to the issues raised on appeal follows.
A. Husband’s Motion to Modify Temporary Support
In an agreed judgment entry, Husband and Wife agreed to terms of
“temporary alimony” (“temporary support”), effective July 1, 2017, in which
Husband “agree[d] to continue the payment of the PNC Bank Credit Card up to a
monthly amount of $665.00. … [Husband] shall pay all work related daycare
expenses, all health insurance coverage (health, dental, and vision) for [Wife and
child] and all car insurance expenses for [Wife].”
Husband filed a motion to modify temporary support on October 19,
2017, arguing monthly support should be reduced.
Following a hearing, on February 9, 2018, the magistrate issued an
order granting Husband’s motion, terminating the portion of the agreed journal
entry that permitted Wife to charge up to $665 each month on Husband’s PNC
credit card (the “PNC credit card”). Wife filed a motion to set aside that order,
arguing Husband had not demonstrated a change in circumstances. The trial court
denied as moot Wife’s motion to set aside.
B. Divorce Trial
A trial on Husband and Wife’s divorce and related matters, including
child support and financial issues related to the termination of parties’ marriage,
took place before a magistrate on December 15, 2017, and January 31, February 5,
and February 9, 2018.
The magistrate’s decision granting the parties a divorce, dividing the
marital property, and issuing an order of shared parenting was journalized on
October 22, 2018. Wife filed objections to this magistrate’s decision.
The trial court adopted the magistrate’s decision and overruled Wife’s
substantive objections on July 5, 2019.1
C. Wife’s Motion to Modify Temporary Support
On January 15, 2019, Wife filed a motion to modify temporary
support. In that motion she asserted that Husband’s “obligations have been reduced
by approximately $600/month since the temporary orders ….” The trial court
denied Wife’s motion as moot.
D. Lichtenstein I
In Lichtenstein I, Wife appealed (1) the orders granting Husband’s
motion to modify temporary support and denying as moot her motion to set that
1 The trial court sustained Wife’s first objection regarding the absence of a list of
trial exhibits in the magistrate’s decision, finding “that the omission of the list of exhibits
on the first page of the Magistrate’s Decision was a clerical error.”
order aside, (2) the entry overruling her objections to the magistrate’s October 22,
2018 decision, and (3) the trial court’s denial as moot of her motion to modify
temporary support. This court found that the trial court had not conducted an
independent review of the divorce proceedings, and affirmed in part, reversed in
part, and remanded the case to the trial court to conduct an independent review
related to the following issues: child support, division of marital assets, and attorney
fees. This court also ordered the trial court to address Wife’s motion to set aside the
magistrate’s order modifying temporary support as well as Wife’s motion to modify
temporary support. Finally, this court strongly suggested that the trial court issue a
separate divorce decree. Lichtenstein I at ¶ 65.
Pursuant to this court’s opinion in Lichtenstein I, the trial court
issued its April 28, 2022 journal entry in which it denied Wife’s motion to set aside
the magistrate’s February 9, 2018 order granting Husband’s motion to modify
temporary support. Further complying with the mandate in Lichtenstein I, on
August 1, 2022, the trial court issued two journal entries: one addressing the issues
raised in the remand order (the “Remand Journal Entry”) and another issuing a
separate divorce decree (the “Divorce Decree”) in which the trial court adopted the
magistrate’s decision journalized on October 22, 2018,2 “in its entirety, except as
modified herein.” Wife appealed from these orders in 8th Dist. Cuyahoga
No. 111887, which is now before this court.
2 The divorce decree refers to the magistrate’s decision of “October 22, 2029.” As
reflected on the court’s docket, the magistrate’s decision was journalized on October 22,
2018.
On December 15, 2022, the magistrate held a hearing on Wife’s
January 2019 motion to modify temporary support. The magistrate issued an order
denying wife’s motion, which Wife moved to set aside. The trial court denied Wife’s
motion on January 11, 2023. Wife appeals from this order in 8th Dist. Cuyahoga
No. 112340, which is also now before this court.
E. Current Appeal
Wife’s appeals in Appeal Nos. 111887 and 112340 were consolidated.
Wife was permitted to file two briefs, each presenting different assignments of error,
which have been renumbered here for ease of discussion. Those assignments of
error are as follows:
Appeal No. 111887 (Remand Journal Entry, Divorce Decree and Denial
of Motion to Set Aside Order Granting Husband’s Motion to Modify
Temporary Support)
[1]: The trial court abused its discretion when it granted [Husband’s]
motion to modify temporary support.
[2]: The trial court abused its discretion in failing to designate husband
as the child support obligor.
[3]: The trial court erred in determining husband’s income for support
purposes.
[4]: The trial court erred in failing to follow ORC Chapter 3119 in
determining child support.
[5]: The trial court erred in failing to address the allocation of
uncovered medical expenses in the remand orders and the trial court
erred in summarily ordering equal responsibility for the child’s
uncovered medical expenses in the final divorce decree.
[6]: The trial court erred in failing to address which parent can claim
the child for tax purposes in its remand orders, and the trial court erred
in summarily allocating the child to [Husband] for tax purposes in the
final divorce decree.
[7]: The trial court abused its discretion in awarding attorney fees.
Appeal No. 112340 (Denial of Wife’s Motion to Modify Temporary
Support)
[8]: The trial court erred in adopting the magistrate’s order which gave
deference to the trial magistrate’s decision in a prior unrelated motion
to modify decided a year before the motion at issue was filed.
[9]: The trial court erred in failing to address the points raised in the
motion to set aside and in summarily denying the motion without
explanation and in accepting a conclusion of the support magistrate
that was never made.
[10]: The trial court erred in denying the motion to modify temporary
orders by only reviewing the magistrate’s order and the motion to set
aside and finding “nothing arbitrary, unreasonable or unconscionable”
where the magistrate’s order does not contain any facts regarding (A)
the parties’ income and how or if those incomes have changed, (B) how
the parenting schedule has changed, (C) how the childcare and other
expenses had changed, and does not address whether mother has met
her burden to show a change of circumstances.
[11]: The trial court erred in denying the motion to modify temporary
orders.
II. Law and Analysis
A. Standard of Review
“[W]hen reviewing a trial court’s determination in a domestic
relations case, an appellate court generally applies an abuse of discretion standard.”
Deacon v. Deacon, 8th Dist. Cuyahoga No. 91609, 2009-Ohio-2491, ¶ 13 (applying
an abuse-of-discretion standard of review to decisions regarding temporary
support); Buskirk v. Buskirk, 8th Dist. Cuyahoga No. 111399,
2023-Ohio-70, ¶ 28
(applying an abuse-of-discretion standard of review to a trial court’s decision
regarding of child support).
A trial court abuses its discretion when its decision “is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,
450
N.E.2d 1140 (1983). The Ohio Supreme Court recently explained that an abuse of
discretion “involves more than a difference in opinion.” State v. Weaver, Slip
Opinion No.
2022-Ohio-4371, ¶ 24. That is, a trial court’s judgment that is
“profoundly and wholly violative of fact and reason” constitutes an abuse of
discretion.
Id.
Wife’s first six assignments of error address decisions regarding
temporary support and child support. Similarly, assignments of error Nos. 8, 10,
and 11 take issue with the trial court’s denial of Wife’s motion for temporary support.
As such, each of these assignments of error will be reviewed for an abuse of
discretion. The standards of review for the remaining assignments of error will be
discussed in their respective sections.
B. Husband’s Motion to Modify Temporary Support
In her first assignment of error, Wife claims the trial court abused its
discretion when it modified Husband’s obligation to pay temporary support. As
noted, in the February 9, 2018 order, the magistrate terminated the “$665 per
month” portion of temporary support and the trial court denied Wife’s motion to set
aside that order. The issue of temporary support became appealable once the final
divorce decree was issued. See Palnik v. Crane, 8th Dist. Cuyahoga No. 107400,
2019-Ohio-3364, ¶ 32 (noting that issues related to temporary support orders
become reviewable once the trial court enters a final judgment).
In his motion to modify, Husband argued a reduction in his support
obligation was warranted because he believed Wife had obtained new employment
and changes in the cost of work-related daycare made the expense unmanageable
without contribution from Wife. Wife opposed the motion, arguing she had not
secured new employment.
Husband’s motion to modify temporary support was heard during the
parties’ divorce trial. Husband testified regarding a spreadsheet he created
identifying charges on the PNC credit card that he attributed to Wife. That
spreadsheet demonstrates that Wife spent the following amounts:
July 2017 — $950.52
August 2017 — $976.68
September 2017 — $836.82
October 2017 — $430.01
November 2017 — $697.32
December 1 — 17, 2017 — $373
For the months of July through November, Wife averaged $778.27 per month. For
December 2017, Wife was on track to spend $680. For the five full months, Wife
was authorized to spend $3,325; the evidence showed Wife spent $3,891.35. That
is, the evidence presented to the court demonstrated that Wife exceeded the award
of temporary support.
While Wife admitted at trial that she had charged more than the
agreed $665 on the PNC credit card some months, she testified that she and
Husband “settled on just offsetting the next month with [her] spending less.” With
that agreement, she believed she had spent under the agreed amount of $665 when
considering all months together. The evidence of Wife’s spending did not support
Wife’s belief.
At the close of the trial, after hearing the testimony proffered and
seeing the documentary evidence presented (including evidence related to the
parties’ finances), the magistrate granted Husband’s motion and terminated the
$665 “cash” portion of temporary support. The magistrate stated on the record that
“there [were] numerous expenditures to what I will categorize as luxury-type items
every month …. And what I see is a lifestyle that includes out-of-control shopping,
expenditures and spending a lot of money on unnecessary items. And it’s not
[Husband’s] job to support that type of spending.” The court further stated that it
did not “think the [temporary support] [wa]s necessary anymore” because of Wife’s
“lack of financial responsibility[.]” On the same day, the magistrate signed an order
memorializing the granting of Husband’s motion to modify temporary support.
Similarly, in the separate August 1, 2022 Divorce Decree, the trial
court found “that spousal support is neither appropriate nor reasonable.” Wife did
not appeal that portion of the Divorce Decree, it is, therefore, not presently before
this court.
“‘The purpose of awarding temporary spousal support is to preserve
the status quo during the divorce proceeding.’” Deacon, 8th Dist. Cuyahoga
No. 91609, 2009-Ohio-2491, at ¶ 49, quoting Cangemi v. Cangemi, 8th Dist.
Cuyahoga No. 86670,
2006-Ohio-2879, ¶ 14. Pursuant to R.C. 3105.18, trial courts
may award “reasonable temporary spousal support” during the pendency of divorce
proceedings. Borrowing from the law regarding permanent spousal support, the
parties argue that a change in circumstances is necessary to support a modification
of temporary support. We note that nothing in the statute addresses the standard
to apply when considering a motion to modify temporary support. The only
criterion is that an award of temporary support must be “reasonable.” See
R.C. 3105.18(B).
Based on the evidence and testimony in the record we find that the
trial court did not abuse its discretion when it denied Wife’s motion to set aside the
magistrate’s order modifying temporary support. We find that the decision to
reduce temporary cash support to zero was reasonable. Notwithstanding that
decision, Wife continued to receive temporary support by way of Husband paying
for all work-related childcare for A.L., Wife and A.L.’s health insurance, and Wife’s
car insurance. We note that Wife did not dispute that the award of no permanent
spousal support was “reasonable.” Further, the evidence and testimony at trial
demonstrated a change in circumstances in that the parties agreed Wife was
permitted to spend $665 per month on the PNC credit card but Wife consistently
exceeded that amount.
Accordingly, Wife’s first assignment of error is overruled.
C. Child Support Obligor
In her second assignment of error, Wife asserts that the trial court
abused its discretion when it designated her as the child support obligor. We
disagree.
First, Wife asserts that the trial court “did not conduct a de novo
review of the evidence and testimony,” resting on her bare allegation without
identifying anything in the record to support her claim. As noted in Lichtenstein I,
when reviewing a magistrate’s decision, a trial court “does not sit in the same
manner as an appellate court; rather, it must conduct an independent review of the
facts and conclusions made by the magistrate.” Haupt v. Haupt, 11th Dist. Geauga
No. 2015-G-0049, 2017-Ohio-2719, ¶ 26, citing Phillips v. Phillips,
2014-Ohio-5439,
25 N.E.3d 371, ¶ 26 (5th Dist.). Pursuant to Civ.R. 53(D)(4)(d), “the court shall
undertake an independent review as to the objected matters to ascertain that the
magistrate has properly determined the factual issues and appropriately applied the
law.” “It is generally presumed that the trial court properly conducted an
independent review of the magistrate’s decision unless the party asserting the error
affirmatively shows otherwise.” Lichtenstein I at ¶ 13.
In the Remand Journal Entry, the trial court acknowledged that the
case was remanded by this court with the instruction to conduct a de novo review
regarding issues related to child support. The trial court explained that it had
“undertaken an independent review” before overruling Wife’s objections to the
magistrate’s decision.
Wife has not affirmatively demonstrated that the court did not
conduct a de novo review. Accordingly, Wife’s argument that the court failed to
conduct an independent review is not well taken.
Second, Wife contends that the court abused its discretion in failing
to designate Husband as the child support obligor. Wife challenges the trial court’s
findings, arguing “[t]he Court’s reasoning for designating [Wife] as the ‘obligor’ was
that Father paid for nearly all the child’s expenses and [Wife] lacked credibility
about her alcohol use, both of which are wholly unsupported by the evidence and
which are not reasons that would justify or support making [Wife] the obligor.”
In the Remand Journal Entry, the trial court found that “[a]lthough
the parties agreed to shared parenting, it is clear from the record that Plaintiff
[Husband] pays nearly all work-related child-care expenses, health insurance
expenses, and other related expenses for the minor child.” Although Wife testified
that she paid the majority of A.L.’s expenses, the court explained that it found Wife’s
testimony to be not credible “due to discrepancies in her testimony regarding her
alcohol abuse.”
Further, the Divorce Decree “constitute[s] an order for shared
parenting,” setting forth the parties’ rights and responsibilities for the care of the
A.L. R.C. 3119.02(A)(1) provides:
A court that issues a shared parenting order in accordance with section
3109.04 of the Revised Code shall order an amount of child support to
be paid under the child support order that is calculated in accordance
with the schedule and with the worksheet, except that, if that amount
would be unjust or inappropriate to the children or either parent and
therefore not in the best interest of the child because of the
extraordinary circumstances of the parents or because of any other
factors or criteria set forth in section 3119.23 of the Revised Code, the
court may deviate from that amount.
“The statute does not mandate which residential parent is to be named the obligor
or obligee in shared parenting situations.” MacKnight v. MacKnight, 12th Dist.
Butler No. CA2021-07-078, 2022-Ohio-648, ¶ 29.
The Divorce Decree specifies that the child support obligor shall pay
the child support obligee “$0 per month as child support plus $0 per month as cash
medical support, for a total of $0 per month.” The court found that the “annual child
support obligation, as determined by the applicable worksheet, is $5,312.76 when
private health insurance is being provided and $3,689.15 when private health
insurance is not being provided.” However, the court ordered a deviation from those
amounts, pursuant to R.C. 3119.22, 3119.23 and 3119.24, because
the annual obligation would be unjust and inappropriate and therefore
not in the best interest of the minor child[] for the following reason(s):
Extraordinary circumstances associated with shared parenting; ability
of each parent to maintain adequate housing for the child[]; each
parent’s expenses, including child care expenses, school tuition,
medical expenses, dental expenses, and other expenses the court
considers relevant; actual financial resources of [Husband]; and that
the parties have relatively equal parenting time and the costs associated
to same.
We find that the trial court’s findings are supported by the record.
Husband not only testified to the specific expenses he pays for A.L., he also
submitted financial records regarding the same.
Based on the foregoing, we overrule Wife’s second assignment of
error.
D. Husband’s Income for Purposes of Calculating Child Support
Next, Wife argues that the trial court erred when it determined
Husband’s income for purposes of determining child support. Specifically, Wife
takes issue with the trial court averaging Husband’s “income for three outdated
years.” Specifically, she argues that the court should have considered Husband’s
2017 income. Wife provides no case law or statutory support for her position.
Pursuant to R.C. 3119.05(H), “When the court or agency calculates
annual income, the court or agency, when appropriate may average income over a
reasonable period of years.” See also Wright v. Wright, 8th Dist. Cuyahoga
No. 91026, 2009-Ohio-128, ¶ 27 (affirming a trial court’s gross annual income
calculation pursuant to R.C. 3119.05(H) utilizing the husband’s income over the
previous three years).
Here, the trial court determined Husband’s income was $72,000 per
year for purposes of calculating child support by averaging the income stated on his
W-2 statements for 2014, 2015, and 2016. The W-2 statements admitted into
evidence at trial demonstrate that for 2014, 2015, and 2016, Husband’s annual
income was $68,994.94, $ 74,506.84, and $69,841.13, respectively. The average of
these three years is $71,114.30, which is $885.70 less than the $72,000 used by the
trial court as Husband’s annual income.
Wife argues that Husband’s income in 2017 was $79,130.18 as
reflected on his final paystub for 2017, which was admitted into evidence at the trial.
However, Husband’s W-2 statement for 2017, which was also in evidence, showed
that in 2017 Husband’s taxable income was $72,019.88. Pursuant to
R.C. 3119.05(A), the court is permitted to rely on supporting documentation such as
a W-2 statement to determine income. See In re M.C.M., 2018-Ohio-1307,
110
N.E.3d 694, ¶ 39 (8th Dist.). Had the trial court used Husband’s income as reported
on his W-2 statements for 2015, 2016, and 2017, Husband’s average income for
those three years would have been $72,122.62, $122 more than the $72,000 that the
trial court used as Husband’s income.
Under these circumstances, particularly given the variable nature of
Husband’s income from year to year, we find that Wife has not demonstrated that
the trial court abused its discretion in determining Husband’s income to be $72,000
per year for purposes of calculating child support. Wife’s third assignment of error
is overruled.
E. R.C. Chapter 3119
In Wife’s fourth assignment of error, she argues that “[t]he trial court
did [not] follow the child support statute at all.” Wife cites to various sections of
R.C. Chapter 3119 that she claims the trial court failed to follow without any
explanation as to how the trial court allegedly failed to follow each of the statutes.
Rather, she simply states that the court quoted “the child support statutes and then
ignores their mandates completely.”
“If an argument exists that can support this assigned error, it is not
this court’s duty to root it out.” Cardone v. Cardone, 9th Dist. Summit Nos. 18349
and 18673, 1998 Ohio App. LEXIS 2028, 22 (May 6, 1998). See also State v.
Watson,
126 Ohio App.3d 316, 321,
710 N.E.2d 340 (12th Dist.1998) (holding that
“[i]t is not the duty of an appellate court to search the record for evidence to support
an appellant’s argument as to any alleged error. … ‘An appellate court is not a
performing bear, required to dance to each and every tune played on appeal.’”),
quoting State v. McGuire, 12th Dist. Preble No. CA95-01-001,
1996 Ohio App.
LEXIS 1492, 40 (Apr. 15, 1996), aff'd,
80 Ohio St.3d 390,
686 N.E.2d 1112 (1997).
Accordingly, we overrule Wife’s fourth assignment of error.
F. Uncovered Medical Expenses
Wife asserts the following in her fifth assignment of error:
The trial court erred in failing to address the allocation of uncovered
medical expenses in the remand orders and the trial court erred in
summarily ordering equal responsibility for the child’s uncovered
medical expenses in the final divorce decree.
As noted, following this court’s mandate in Lichtenstein I, the trial
court issued the Remand Journal Entry and the Divorce Decree. While the Remand
Journal Entry does not address uncovered medical expenses, the Divorce Decree
does.
In challenging the trial court’s order in the Divorce Decree that
Husband and Wife each pay 50 percent of A.L.’s uncovered medical expenses, Wife
asserts that “[u]ninsured medical expenses are customarily divided as per Line 16 of
the child support worksheets.” Wife cites to Peach v. Peach, 8th Dist. Cuyahoga
Nos. 82414 and 82500, 2003-Ohio-5645, to support her argument. Whether
something is customary, as argued by Wife, is not pertinent to our review. Our
review is limited to whether the trial court abused its discretion. Moreover, Peach
does not establish that it is “customary” to divide uncovered or uninsured medical
expenses according to line 16 of the child support worksheet. Rather, the Peach
Court quoted the terms of the divorce decree agreed to by those parties in which the
husband agreed to pay all uninsured medical expenses of the child “per line 16 of the
child support worksheet.”
Peach at ¶ 18. Wife provides no other support for her
assertion that the trial court committed an abuse of discretion.
Wife has not established the trial court abused its discretion in
ordering that Husband and Wife are equally responsible for uncovered medical
expenses. Wife’s fifth assignment of error is overruled.
G. Claiming Child for Tax Purposes
In Wife’s sixth assignment of error, she argues that the court failed to
address who can claim A.L. for tax purposes in the Remand Journal Entry and when
it “summarily” allocated that deduction to Husband for tax purposes in the Divorce
Decree. While we acknowledge that the trial court did not address the issue of which
parent can claim the child for tax purposes in its Remand Journal Entry, we note
that the court did address the issue in the separate Divorce Decree. We find no error
in the court having done so. Further, we disagree that the court abused its discretion
when it allocated the tax deduction to Husband.
R.C. 3119.82 discusses the issue of which parent may claim a child for
tax purposes. It states:
In cases in which the parties do not agree which parent may claim the
children as dependents, the court shall consider, in making its
determination, any net tax savings, the relative financial circumstances
and needs of the parents and children, the amount of time the children
spend with each parent, the eligibility of either or both parents for the
federal earned income tax credit or other state or federal tax credit, and
any other relevant factor concerning the best interest of the children.
In the Remand Journal Entry, the trial court specified that it
overruled Wife’s “Objections to Magistrate’s Decision … as to the child support
issues …,” and “adopt[ed] the Magistrate’s Decision with modifications herein.”
As the trial court did not specifically address which parent could claim A.L. for tax
purposes, it adopted without modification the magistrate’s decision in this regard.
The magistrate’s decision analyzed the R.C. 3119.82 factors and found:
(a) Net tax savings: For the tax year 2017 the [Husband] is in a 25%
income tax bracket and the [Wife] is in a 15% tax bracket. In tax
year 2018, the [Husband] is in 22% tax bracket and the [Wife] is in
a 12% tax bracket. Therefore, a greater net tax savings would be
derived by awarding the [Husband] the tax exemption.
(b) Relative financial circumstances and needs of the parents and
children: In this case, [Husband] is paying the majority of the child’s
expenses including health care and child care. [Husband] earns
more “actual income” than that of the [Wife].
(c) Amount of time the children spend with each parent: The parents
have equal parenting time with their son.
(d) Eligibility of either or both parents for the federal earned income tax
credit or other state or federal credit: [Wife] earned approximately
$20,000 in income in 2017. She likely qualifies for the earned
income credit if she files single/head of household.
(e) Other relevant factors: It furthers the best interest of the child to
designate the [Husband] as the parent who may claim the child as a
dependent for federal income tax purposes.
Upon review, we find that the magistrate’s factual findings are
supported by evidence in the record. Wife argues that it was error to find that Wife
“would qualify for the earned income credit.” We note that the court only mentioned
that Wife “likely qualifies.” It did not conclude that Wife did or did not qualify. Wife
does not challenge any of the other findings, other than to claim that the trial court
did not take into account Wife’s financial circumstances. In fact, the magistrate
made a specific finding that Wife earned approximately $20,000 in 2017. That is,
the order demonstrates the court did take into account Wife’s financial
circumstances.
Accordingly, Wife’s sixth assignment of error is overruled.
H. Attorney Fees
In her seventh assignment of error, Wife contends that the trial court
abused its discretion in awarding Husband $3,000 in attorney fees because it did
not conduct a de novo review and did so “without evidence.” We disagree.
“The decision to award attorney fees under R.C. 3105.73 lies within
the sound discretion of the trial court and will not be reversed absent an abuse of
that discretion.” Wilson v. Wilson, 8th Dist. Cuyahoga No. 112105, 2023-Ohio-1752,
¶ 23. “Under this highly deferential standard of review, we ‘may not freely substitute
[our] judgment for that of the trial court.’” Allan v. Allan, 8th Dist. Cuyahoga
No. 107142,
2019-Ohio-2111, ¶ 95, quoting Dannaher v. Newbold, 10th Dist.
Franklin Nos. 05AP-172 and 05AP-650,
2007-Ohio-2936, ¶ 33.
Pursuant to R.C. 3105.73(A):
In an action for divorce … 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.
This court remanded the issue of attorney fees to the trial court in
Lichtenstein I. In the Remand Journal Entry, that trial court explained:
[H]aving considered all the facts and evidence on this case the Court
would be justified in ordering [Wife] to pay a much larger percentage
of [Husband’s] attorney fees but has determined that it would be
inequitable. However, an award of $3,000.00 which represents less
than five percent of [Husband’s] total fees is appropriate considering
all the facts and circumstances.
At the trial on Husband and Wife’s divorce and related pending
motions, Husband’s attorney testified that working on this case was “a very difficult
task … [p]rimarily because of discovery, and primarily because of an inability to
work through simple agreements, and an inability to reach stipulations, any type of
agreement ….” Husband’s attorney explained some of the work performed in this
case including preparing motions to compel, requests for production of documents,
opposition to a motion to quash subpoenas, an agreed judgment entry, and
correspondence between himself and Wife’s attorney regarding discovery issues.
Husband’s attorney testified that he billed Husband $62,055 for his services, and a
fee bill was admitted into evidence.
Wife argues that there was no evidence regarding Husband’s
attorney’s hourly rate. However at trial, Wife’s attorney had the following colloquy
with Husband’s attorney:
Q: And how much do you charge an hour?
A: Currently or on [Husband’s] case?
Q: Well, what are you charging [Husband]?
A: 285 – or 385, I’m sorry.
Q: And what[] do you charge currently?
A: 395.
Accordingly, the record demonstrates that Husband’s attorney’s
hourly rate was in evidence, and the court properly exercised its discretion to award
Husband $3,000 of the $62,055 he requested.
Wife’s seventh assignment of error is overruled.
I. Deference to Prior Magistrate’s Decision on an Unrelated
Motion — Wife’s Motion to Modify Temporary Support
Wife argues in her eighth assignment of error that the trial court
“erred in giving deference to the Trial Magistrate’s decision on a prior motion to
modify the temporary orders ….”
In denying Wife’s January 15, 2019 motion to modify, the magistrate
included a brief procedural history of the case. In that history, the magistrate stated
that the February 9, 2018 magistrate’s order that granted Husband’s motion to
modify temporary support “was determined by the Trial Magistrate. The Trial
Magistrate heard the case in-person and deference is provided to the Trial
Magistrate for the order of modification.”
After discussing the history of the proceedings, the magistrate went
on to analyze the facts and evidence presented at the hearing on Wife’s January 15,
2019 motion to modify. The magistrate concluded “upon analysis of this case and
the uniqueness of the case … that the current order for temporary support
(pursuant to the Magistrate’s order journalized February 9, 2018) is fair and
reasonable and should remain in effect.” Nothing in the record indicates that the
magistrate deferred to the prior magistrate’s order regarding the motion at issue.
When the trial court denied Wife’s motion to set aside the magistrate’s order, it
clearly explained it was ruling on Wife’s motion to set aside filed on December 20,
2022, and concluded that Wife had not demonstrated a change in circumstances
sufficient to warrant a modification.
Wife has not demonstrated that the trial court abused its discretion.
Accordingly, Wife’s eighth assignment of error is overruled.
J. Denial of Wife’s January 15, 2019 Motion to Modify Without
Explanation
Next, Wife argues that the trial court erred “in summarily denying the
motion [to set aside the magistrate’s order] without explanation ….” We disagree.
Civ.R. 52 requires trial courts to issue findings of fact and conclusions
of law in limited circumstances not at issue here and authorizes parties to request
findings of fact and conclusions of law in other circumstances. Wife did not file a
motion pursuant to Civ.R. 52 requesting findings of fact and conclusions of law.
Further, Wife does not identify, and we do not find, any law that requires a trial court
to explain its decision to deny a motion to set aside a magistrate’s order.
Wife’s argument is not well-taken, and this assignment of error is
overruled.
K. Wife’s Motion to Modify Temporary Support
Wife’s tenth and eleventh assignments of error will be reviewed
together because both raise the same issue, that the trial court “erred in denying the
motion to modify temporary orders.” While Wife argues that the magistrate erred
in denying her motion to modify, her substantive arguments relate to the trial court’s
denial of her motion to set aside the magistrate’s order.
A trial court’s decision to deny a motion to set aside a magistrate’s
order is reviewed for an abuse of discretion. Schutte v. Strittmatter, 2018-Ohio-
3472, 118 N.E.3d 485, ¶ 11 (9th Dist.).
Wife filed her motion to modify temporary support arguing, among
other things, that a modification was warranted because Husband’s income had
increased and that his work-related childcare expenses had decreased since the
original order.
On appeal, Wife challenges the trial court’s denial of her motion to set
aside the magistrate’s order based on her assertion that the trial court did not review
transcripts or exhibits. We find her argument not well taken. Civ.R. 53 creates a
distinction between a magistrate’s decision and a magistrate’s order. Pursuant to
Civ.R. 53(D)(4)(d), when ruling on a party’s objections to a magistrate’s decision, a
trial court must conduct “an independent review as to the objected matters ….”
However, Civ.R. 53 makes no such requirement when a trial court is ruling on a
motion to set aside a magistrate’s order. See Civ.R. 53(D)(2)(b). Wife has not cited
any case law or statutory authority requiring the trial court to review the transcripts
or exhibits in ruling on a motion to set aside a magistrate’s order.
Further, we find that the trial court did not abuse its discretion in
denying Wife’s motion to set aside the magistrate’s order.
The trial court noted in its entry denying Wife’s motion to set aside
the magistrate’s order that to modify an award of temporary support, “the moving
party must demonstrate a change in circumstances” such that the existing order is
“no longer reasonable and appropriate ….” See R.C. 3105.18.
The magistrate denied Wife’s motion to modify temporary support,
finding that the then-existing order of temporary support was “fair and reasonable”
without modification. Wife’s motion to modify temporary support sought an
increase because the parties’ “circumstances have changed warranting a
modification ….” Specifically, Wife argued in her motion that Husband’s income
had increased, his “child care expenses ha[d] decreased significantly,” and his
“obligations have been reduced by approximately $600/month since the temporary
orders and the parties are now enjoying 50/50 time sharing of their child.”
At the hearing held in December 2022, Wife argued that
at the time the [temporary support] orders went in, the child was in
preschool and not in full-time schooling so he needed basically full-time childcare. At the time of filing of the Motion to Modify, the child
was now a full-time kindergarten student, and the child support
expenses went down to approximately $3,000 a year, so that was a
savings to [H]usband under the prior orders of about $9,000 a year.
Wife further stated that through the temporary support Husband
“was in essence paying [Wife’s] share of the childcare ….” Wife additionally
argued that Husband’s “base income went up from $66,000 and some change to
$72,000 and some change” between 2018 and 2019.
In denying Wife’s motion to modify temporary support, the
magistrate acknowledged that Husband’s work-related childcare expenses “have
decreased, but … a review of the totality of the circumstances of the case evince
that this most likely was contemplated by the” parties. This finding is supported by
evidence in the record. At the divorce trial, which was consolidated with a hearing
on Husband’s motion to modify temporary support, Husband was asked on cross-
examination when he “expect[ed] the work-related childcare [expenses] to reduce.”
He responded in August when A.L. went to kindergarten. Further, while Wife
argued that Husband’s income had increased, the magistrate’s order found that “it
is unclear if [Wife’s] income has increased.” A review of the transcript from the
December 15, 2022 hearing on Wife’s motion to modify demonstrates that neither
party demonstrated whether Wife’s income had changed since the trial in this case.
As noted, the purpose of an award of temporary support is to preserve
the status quo during the divorce proceedings. Deacon, 8th Dist. Cuyahoga
No. 91609, 2009-Ohio-2491. Such an award must be “reasonable.” R.C. 3105.18(B).
We find that the magistrate’s findings were supported by evidence in
the record and therefore, the trial court did not abuse its discretion when it denied
Wife’s motion to set aside the magistrate’s order. To the extent that Wife
demonstrated that Husband’s childcare obligations had decreased as expected, she
did not demonstrate that fact alone warranted an increase in temporary support to
her. For example, she did not establish a countervailing increase in her expenses.
Wife’s tenth and eleventh assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
KEY WORDS
Divorce, temporary support, child support, obligor, income for child support, child
tax credit, shared parenting order, attorney fees.
The trial court did not abuse its discretion regarding temporary support, child
support, and attorney fees. Each of the court’s findings are supported by evidence
in the record. Additionally, appellant did not otherwise demonstrate that the trial
court abused its discretion.
Judgment affirmed.
