[Cite as Lanza v. Lanza,
2023-Ohio-3531.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
MICHELLE S. LANZA, CASE NO. 2023-L-024
Plaintiff-Appellee/
Cross-Appellant, Civil Appeal from the
Court of Common Pleas,
- vs - Domestic Relations Division
FRANKLIN C. LANZA, et al.,
Trial Court No. 2016 DR 000595
Defendant-Appellant/
Cross-Appellee.
OPINION
Decided: September 29, 2023
Judgment: Affirmed
Gary S. Okin, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH
44077 (For Plaintiff-Appellee/Cross-Appellant).
James B. Rosenthal, Cohen Rosenthal & Kramer LLP, 3208 Clinton Avenue, Cleveland,
OH 44113 (For Defendant-Appellant/Cross-Appellee).
EUGENE A. LUCCI, J.
{¶1} Appellant/cross-appellee, Franklin C. Lanza, (“Husband”), and
appellee/cross-appellant, Michelle S. Lanza, (“Wife”), appeal the judgment overruling
their objections to a magistrate’s decision, denying their respective motions to show
cause, and awarding Wife a portion of her attorney fees. We affirm.
{¶2} In 2016, Wife initiated divorce proceedings. In late 2018, the parties
resolved the outstanding issues in the divorce case and read their agreement on the
record in court. In January 2019, the trial court approved a divorce decree that
incorporated a transcript of the in-court settlement.
{¶3} Later that year, the parties began engaging in post-decree litigation as
follows. Husband moved the court to order Wife to appear and show cause as to why she
should not be held in contempt for: (1) failing to pay her own attorney fees as ordered in
the divorce decree, (2) failing to leave the marital residence in “broom clean condition”
and causing waste to the residence in violation of the decree, and (3) breaching her
warranty that there was not, and would not be, damage to the marital residence prior to
her vacating the residence. Wife filed a motion to compel discovery, and she thereafter
moved the court to order Husband to appear and show cause as to why he should not be
held in contempt for failing to indemnify and hold her harmless on a debt owing to the
parties’ landscaper. Both parties requested attorney fees.
{¶4} These matters proceeded to hearing before a magistrate in February and
August 2020. On February 11, 2022, the magistrate issued a decision determining that
neither party should be held in contempt and that Husband should pay wife $21,000.00
toward her attorney fees. Both parties objected to the magistrate’s decision. On January
30, 2023, the trial court ruled on the objections, denying the objections relative to the
magistrate’s determination that neither party should be held in contempt, and issued
judgment that recalculated the attorney fees awarded to Wife to $20,971.80.
{¶5} In his appeal, Husband assigns six errors to the trial court’s January 30,
2023 judgment, and, in her cross-appeal, Wife assigns two errors. We consolidate and
take out of order certain assigned errors to facilitate our discussion.
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{¶6} At the outset, we note that, as to all the assignments of error save for
Husband’s sixth assigned error, the appeal and cross-appeal pertain to the trial court’s
rulings on the parties’ objections to the magistrate’s decision. In such a case, “any claim
of trial court error must be based on the actions of the trial court, not on the magistrate's
findings or proposed decision; the focus is on the trial court's actions and not the actions
of the magistrate.” Obradovich v. Horvath, 11th Dist. Trumbull No. 2008-T-0096, 2009-
Ohio-3176, ¶ 38, citing W.R. Martin, Inc. v. Zukowski, 11th Dist. Lake Nos. 2006-L-028
and 2006-L-120, 2006-Ohio-6866, ¶ 32. We generally review a trial court’s action on a
magistrate’s decision for an abuse of discretion. Walsh v. Walsh, 11th Dist. Ashtabula
No. 2022-A-0030,
2022-Ohio-3373, ¶ 31. “An abuse of discretion is the trial court’s
‘“failure to exercise sound, reasonable, and legal decision-making.”’” Id. at ¶ 31, quoting
State v. Beechler, 2d Dist. Clark No. 09-CA-54,
2010-Ohio-1900, ¶ 62, quoting Black’s
Law Dictionary 11 (8th Ed.Rev.2004). Where the issue on review has been entrusted to
the discretion of the trial court, “the mere fact that the reviewing court would have reached
a different result is not enough, without more, to find error.”
Walsh at ¶ 32, citing Beechler
at ¶ 67. “When a pure issue of law is involved in appellate review, however, the mere
fact that the reviewing court would decide the issue differently is enough to find error.”
Walsh at ¶ 32, citing Beechler at ¶ 67.
{¶7} Next, we note that Husband’s first four assigned errors and Wife’s first
assigned error pertain to the trial court’s denial of their respective motions requesting the
court to hold the other in contempt for failure to abide by terms of the divorce decree. We
also generally review a trial court’s ruling on a contempt motion for an abuse of discretion.
Miller v. Miller, 11th Dist. Trumbull No. 2019-T-0048, 2020-Ohio-6914, ¶ 10. “Contempt
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is a disregard of, or disobedience to, the orders or commands of judicial authority.
Indirect contempt may include the disobedience of, or resistance to, a lawful order,
judgment, or command of a court officer.” (Footnote omitted). Miller at ¶ 8, quoting State
v. Flinn,
7 Ohio App.3d 294, 295,
455 N.E.2d 691 (9th Dist.1982); and Dozer v. Dozer,
88 Ohio App.3d 296, 302,
623 N.E.2d 1272 (4th Dist.1993); and citing R.C. 2705.02.
Where the contempt allegation is based on violation of a court order, the order must be
clear and definite with respect to the precise conduct constituting disobedience. Does v.
Univ. Hosps. Health Sys., Inc.,
2023-Ohio-2120, --- N.E.3d ----, ¶ 18-19 (11th Dist.); Cain
v. Cain, 11th Dist. Portage No. 2017-P-0084,
2019-Ohio-184, ¶ 21.
{¶8} In such a case, “[t]he party moving to hold another in civil contempt of court
has the burden to show by clear and convincing evidence the existence of a valid court
order and the other’s noncompliance.” Miller at ¶ 12, quoting Carroll v. Detty,
113 Ohio
App.3d 708, 711,
681 N.E.2d 1383 (4th Dist.1996). Clear and convincing evidence is
evidence that “will produce in the mind of the trier of facts a firm belief or conviction as to
the facts sought to be established.” Ohio State Bar Assn. v. Reid,
85 Ohio St.3d 327, 331,
708 N.E.2d 193 (1999), quoting Cross v. Ledford,
161 Ohio St. 469,
120 N.E.2d 118
(1954), paragraph three of the syllabus.
{¶9} Mindful of these principles, we first address Husband’s assigned errors
regarding the trial court’s judgment denying his contempt motion. In his first and second
assigned errors, Husband argues:
[Husband’s First Assigned Error:] The trial court committed
prejudicial error in denying Defendant-Appellant Franklin
Lanza’s Motion to Show Cause as to Michelle’s failure to pay
her own attorney fees and expenses as ordered in the final
Judgment Entry of Divorce based on the merger doctrine set
forth in Colom v. Colom, 58 Ohio St.2d 245,
389 N.E.2d 856
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(1979) when Franklin is not seeking to enforce prior
interlocutory orders or to appeal them.
[Husband’s Second Assigned Error:] The trial court
committed prejudicial error in denying Defendant-Appellant
Franklin Lanza’s Motion to Show Cause as to Michelle’s
failure to pay her own attorney fees and expenses by “finding”
that the amounts Franklin previously paid were from marital
assets when no such determination was made prior to or in
the final Judgment Entry of Divorce, the issue was never tried,
the Court did not reserve jurisdiction over the parties’ property
settlement, and the Court’s “finding” that an asset was marital
property, without prior notice or opportunity to be heard,
constitutes a new ruling in this case nearly four years after the
Judgment Entry of Divorce.
{¶10} Husband’s first and second assigned errors pertain to funds paid during the
divorce proceedings for Wife’s attorney fees and expenses from a PNC account that was
held in Husband’s name. While the parties’ divorce was pending, the trial court restrained
the parties from using this PNC account. However, during the divorce proceeding, the
restraining order was partially lifted several times by court orders, two of which are
relevant to Husband’s argument. First, in 2017, the magistrate lifted the restraining order
to allow for $20,000.00 in distributions to each party from the PNC account, stating that
the parties were to use the money as follows: “$10,000.00 (each) for their living expenses
and $10,000.00 (each), which shall be paid directly to their present divorce attorneys.”
The order further stated that the distributions were “subject to re-allocation and/or in
consideration as spousal and child support calculations at the final disposition herein.
Further, the payment of attorney fees herein is also subject to re-allocation at the final
disposition.”
{¶11} In 2018, the magistrate again lifted the restraining order as to the PNC
account, “to allow each party to receive $5,000 for their litigation expenses. Further, the
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plaintiff is to receive an additional $2,500 as a deposit for the payment of her vocational
expert. The payment of litigation costs, court costs, attorneys’ fees and experts’ costs
are all subject to further allocation at the final disposition herein.” (Footnote omitted.)
{¶12} As noted in our recitation of the procedural history, final disposition of the
divorce was made by way of an in-court settlement agreement and an agreed divorce
decree. The decree ordered that “the Plaintiff, Michelle Lanza, shall pay her own attorney
fees and expenses, and the Defendant, Franklin Lanza, shall pay his own attorney fees
and expenses.”
{¶13} In his motion to show cause, Husband maintained that the decree’s
requirement that each party pay their own attorney fees and expenses necessarily
required Wife to pay him the $17,500.00 that she received for attorney fees and expenses
from the PNC account pursuant to the two interlocutory orders set forth above. Husband’s
argument is based on at least two necessary premises: first, that the decree’s order as to
attorney fees encompassed fees that had already been paid, and, second, that the PNC
account was Husband’s separate property. The magistrate disagreed with these
premises and determined that the portion of Husband’s motion relating to Wife’s failure
to reimburse him for interim attorney fees should be denied.
{¶14} In overruling Husband’s objection to this aspect of the magistrate’s decision,
the trial court noted as “an aside,” that the PNC account was marital property. The court
determined that the decree’s provisions regarding attorney fees was prospective, and
nothing in the decree or the transcript of the in-court settlement provided that Wife would
pay any sum to Husband for interim attorney fees paid from the PNC account. In support,
the court noted that the merger doctrine extinguished the interim orders.
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{¶15} On appeal, Husband first challenges the court’s application of the merger
doctrine. As stated by the Ohio Supreme Court in Colom v. Colom, 58 Ohio St.2d 245,
389 N.E.2d 856 (1979), syllabus, “In a domestic relations action, interlocutory orders are
merged within the final decree, and the right to enforce such interlocutory orders does not
extend beyond the decree, unless they have been reduced to a separate judgment or
they have been considered by the trial court and specifically referred to within the decree.”
{¶16} Husband maintains that the court misapplied this doctrine because
Husband was not attempting to enforce the interlocutory orders, and he, in fact, had
already complied with these orders for the payment of attorney fees. Rather, he was
referencing the interlocutory orders to calculate the amounts of fees and expenses that
had been paid from the PNC account and to provide context to the decree. Husband
maintains that the trial court erred in applying the merger doctrine to treat the interlocutory
orders as though they “are erased from the record as if they never happened.”
{¶17} However, we do not read the court’s decision in the same manner as
Husband. The court noted that each interlocutory order stated that the attorney fees and
expenses could be allocated or reallocated. The court relied on the merger doctrine to
demonstrate the decree’s silence as to allocation or reallocation of the interim attorney
fees. Because the decree contained no provision as to payment of interim attorney fees
previously ordered, Husband could not rely on the statement that each party pay their
own attorney fees as retroactively amending fees already paid. The trial court did not
misapply the merger doctrine. Accordingly, Husband’s first assigned error lacks merit.
{¶18} Moreover, the parties’ decree incorporated the parties’ agreement
regarding division of property. The decree does not designate the PNC account as
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“marital” or “separate” property but ultimately awards the account to Husband. See R.C.
3105.171(A)(3)(a) (defining marital property) and R.C. 3105.171(A)(6) (defining separate
property). In his second assigned error, Husband challenges the trial court’s “aside”
note that the PNC account constituted marital property.
{¶19} Regardless of the propriety of the trial court’s statement in the ruling on
objections, it was Husband’s burden to establish the basic premises of his claim. The
decree does not contain any determination that the PNC account constituted Husband’s
“separate property.” Notwithstanding Husband’s attempts to categorize the PNC account
as “separate property” through the post-divorce proceedings and this appeal, our
disposition of Husband’s first assigned error renders his second assigned error moot, and
we decline to further address it. 1 See App.R. 12(A)(1)(c).
{¶20} Next, with respect to the denial of his motion to show cause, in Husband’s
third and fourth assigned errors, he argues:
[Husband’s Third Assigned Error:] The trial court committed
prejudicial error by denying any and all relief to Franklin on his
motion to show cause as it related to waste and damage to
the marital residence and “broom clean” condition when the
parties’ contractual, in court settlement, unambiguously
imposed liability on Michelle for waste and damage to the
premises that occurred during her occupancy and
unambiguously imposed on her a duty to leave the premises
in “broom clean” condition.
[Husband’s Fourth Assigned Error:] The trial court committed
prejudicial error by denying any and all relief to Franklin on his
motion to show cause as it related to waste and damage to
the marital residence and “broom clean” condition when the
manifest weight of the evidence established that both parties
1. Wife observes that Husband’s appellate brief contains factual representations not in the record regarding
the PNC account. Factual representations lacking a foundation in the record are not appropriately
considered by this court; however, we need not rely on any of these representations to resolve Husband’s
assigned errors.
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agreed at least some of the waste and damage occurred while
Michelle’s warranty applied and undisputed evidence showed
that Franklin paid to haul trash and debris that Michelle had
left behind.
{¶21} Husband’s third and fourth assigned errors pertain to the condition of the
marital residence once Wife vacated the residence. Relative to this issue, the divorce
decree provided as follows:
… Michelle Lanza, shall vacate the … Sanctuary Drive,
Kirtland Hills, Ohio 44060 residence on or before March 1,
2019. The Plaintiff, Michelle Lanza, warrants and represents
that she has not caused an[y] waste or damage to [the]
residence. The Plaintiff, Michelle Lanza, shall not cause any
waste or damage to the residence and shall ensure that the
residence is in broom clean condition when she vacates the
residence. The parties acknowledge there is existing damage
to a wall caused by the minor child, which shall not be
considered waste or damage created by Plaintiff, Michelle S.
Lanza, and which shall not be her obligation to repair.
(Emphasis added.)
{¶22} This provision in the divorce decree differs somewhat from the transcript of
the in-court agreement attached to the decree. The transcript provides that wife “warrants
and represents there hasn’t been any waste or destruction caused to the residence. She
also warrants and represents she will not cause any waste or destruction to the residence,
and she will also leave the residence in what is known as broom clean condition.”
(Emphasis added.)
{¶23} In the proceedings before the magistrate, Husband maintained that this
provision in the transcript controlled over the terms of the divorce decree, and that Wife’s
warranty that there was no waste or destruction caused to the residence was not specific
to damage arising from her own conduct. However, Wife maintained that the terms of the
decree prevailed over the in-court settlement transcript, and, thus, Wife had warrantied
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that she had not caused waste or damage to the residence and that she would not
thereafter cause any waste or damage.
{¶24} In the magistrate’s decision, the magistrate determined that the terms of the
decree prevailed over the terms of the in-court settlement transcript with regard to
damage to the residence. The magistrate concluded that much of the alleged damage to
the residence was normal wear and tear, due to actions of the parties’ children, or existed
while Husband and Wife were still residing in the home together.
{¶25} The magistrate further determined that, in general, Wife’s pictures of the
home which were entered into evidence at the hearing, reflected “a completely clean and
vacuumed residence.” However, the pictures Husband entered into evidence
demonstrated some trash in drawers, items left on shelves and in closets, and trash that
was pulled from behind and beneath furniture and displayed in the middle of a room. The
magistrate deemed the most notable of the “trash” that was left in the marital residence
was located behind and/or beneath furniture in the parties’ then minor son’s bedroom.
Further, the magistrate noted that Husband designated certain items as “trash” or “waste”
that Wife should have removed despite the items not being listed as property that she
was permitted to remove pursuant to a joint exhibit attached to the decree.
{¶26} The magistrate determined that Wife had substantially complied with the
decree’s requirement to leave the residence in broom-clean condition. Further, the
magistrate noted that contempt must be based on a clear order of what is required by the
alleged contemnor. Ultimately, the magistrate determined that Husband failed to prove
that Wife was in contempt for damage to the residence or failure to leave it in broom-
clean condition.
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{¶27} In his objections, Husband again advanced his argument that the in-court
settlement transcript provision regarding damage to the residence controlled over the
provision in the divorce decree, citing several cases in support. The trial court overruled
this objection, stating the cases on which Husband relied pertained to discrepancies
between a “separation agreement” filed with the court and incorporated in a decree and
the provisions of the decree. Here, no separation agreement was filed. Accordingly, the
court overruled Husband’s objection.
{¶28} Husband also objected to the magistrate’s failure to find Wife in contempt
when trash was left in the home, and it was not in “broom[-]clean condition” under any
definition of that phrase. However, the trial court noted that the parties did not define
“broom[-]clean condition,” and the phrase was open to interpretation. The court also
noted that Husband had provided no “case law” supporting the interpretation of “broom
clean.” Moreover, the court determined that the items left in closets and shelves which
were not on the parties’ joint exhibit as items to be removed by Wife were properly left at
the residence. Accordingly, the trial court overruled Husband’s objection.
{¶29} In his third assigned error, Husband argues that the trial court erred in
interpreting Wife’s warranty in the decree as warrantying only that she personally had not
and would not damage the marital residence, contending that such an interpretation leads
to an absurd result. 2 Husband likewise asserts that the trial court “imposed an absurd
result” in its interpretation of Wife’s promise to leave the residence in “broom[-]clean”
2. As previously quoted, the transcript of the in-court settlement indicated that Wife warrantied that “there
has not been any waste or destruction caused to the residence.” Husband appears to equate the term
“damage” to either “waste” or “destruction.” We need not, and do not, reach the issue of whether the term
“damage” is synonymous with these terms.
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condition as not requiring Wife to remove her personal items unless they were listed on
the parties’ joint exhibit.
{¶30} However, Wife responds that the manifest absurdity doctrine on which
Husband relies on appeal was not the basis of Husband’s objections below with regard
to the damage provision. In his reply brief, Husband maintains that his written closing
argument and his objections did raise his position regarding contract interpretation.
However, the objection to which Husband cites in his reply, although providing a general
reference to contract interpretation, does not advance the “absurd results” argument that
he raises on appeal.
{¶31} Civ.R. 53(D)(3)(b)(ii) provides, “An objection to a magistrate’s decision shall
be specific and state with particularity all grounds for objection.” Civ.R. 53(B)(3)(b)(iv)
provides, “Except for a claim of plain error, a party shall not assign as error on appeal the
court’s adoption of any factual finding or legal conclusion, whether or not specifically
designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless
the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).”
Accordingly, Husband has forfeited all but plain error argument with respect to whether
the court’s interpretations of the provisions in the divorce decree results in an absurdity.
{¶32} “In appeals of civil cases, the plain error doctrine is not favored and may be
applied only in the extremely rare case involving exceptional circumstances where error,
to which no objection was made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy of
the underlying judicial process itself.” (Citations omitted.) Goldfuss v. Davidson, 79 Ohio
St.3d 116,
679 N.E.2d 1099 (1997), syllabus. Here, Husband has not advanced a plain
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error argument with respect to the absurd results doctrine, and we conclude this is not
the extremely rare case to which the plain error doctrine is appropriately applied.
Moreover, we note, as previously stated, to hold a party in contempt for violation of a court
order, the order must be clear and unambiguous as to the conduct constituting the
violation. Does, 2023-Ohio-2120, at ¶ 18-19; Cain,
2019-Ohio-184, ¶ 21.
{¶33} For the foregoing reasons, Husband’s third assigned error is overruled.
{¶34} With respect to his fourth assigned error, Husband argues that the court
erred in denying him any relief because the manifest weight of the evidence established
that at least some of the damage to the residence occurred while Wife’s “warranty applied”
and undisputed evidence showed that Husband paid to remove trash and debris that Wife
had left at the residence.
{¶35} Husband maintains that he presented unrebutted evidence of waste, trash,
and unwanted personal items left in the residence. However, our resolution of Husband’s
third assigned error limits our discussion of his fourth, as Husband failed to establish
certain bases on which his fourth assigned error is premised. Namely, Husband has not
established that the court erred in its determination that Wife properly left personal
property in the residence that was not listed on the joint exhibit for her removal. Husband
has also not established that the trial court erred in applying the damage warranty in the
decree to only damage that was caused by Wife. Husband does not contend that the
manifest weight of the evidence establishes that Wife caused the damages he identifies.
{¶36} With respect to trash left at the residence, we agree that there was
unrefuted evidence that trash and debris were located in the residence when Husband
regained occupancy. The magistrate also acknowledged that trash was left in the
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residence; however, the magistrate determined the trash to be of “an insignificant
amount,” and that it “could be easily removed with little trouble, time, and expense.”
Further, the magistrate’s decision sets forth case law for the proposition that substantial
compliance may excuse a technical violation of a court order in certain cases. And, here,
the magistrate determined that Wife substantially complied with her promise to leave the
residence in broom-clean condition.
{¶37} Husband objected to the findings regarding the insignificance of the trash,
maintaining that the findings mischaracterized the evidence. The trial court overruled the
objection because Husband did not support it with specificity to the record as required by
Civ.R. 53(D)(3)(b)(ii).
{¶38} On appeal, Husband does not explain how the trial court erred in overruling
his objection to the insignificance of the trash. Further, Husband did not object below to
the magistrate’s determination that substantial compliance may excuse technical
violations of a court order.
{¶39} Accordingly, Husband’s fourth assigned error lacks merit.
{¶40} We next take out of order and address Wife’s first assigned error, wherein
she argues that the court should have found Husband in contempt, maintaining:
[Wife’s First Assigned Error:] The trial court’s denial of
Michelle’s Motion to Show Cause was against the manifest
weight of the evidence where the evidence surrounding her
payment of the landscaping costs w[as] unrebutted and
credible.
{¶41} The parties’ decree of divorce ordered “that the Defendant, Franklin Lanza,
shall indemnify and hold the Plaintiff, Michelle Lanza, harmless on any and all debt due
and owing to the landscaper(s) associated with the real properties located at …
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Sanctuary Drive, Kirtland Hills, Ohio 44060 and … Chatham Way, Mayfield Heights,
Ohio 44124.”
{¶42} At the hearing before the magistrate, Wife testified that she paid the
landscaper a negotiated settlement of $4,000.00. However, Husband maintained that he
was not required to reimburse Wife for moneys she paid to the landscaper because she
provided him no notice of the amount of the outstanding debt prior to her payment of the
debt. Wife argued that she was not required to provide Husband notice of the debt by
the terms of the divorce decree.
{¶43} The magistrate determined that Wife was not required to provide Husband
notice prior to making payment.3 However, the magistrate determined that Wife had failed
to establish her contempt claim with clear and convincing evidence.
{¶44} Wife objected, arguing the uncontroverted testimony of Wife and the
landscaper established that Wife paid the landscaper $4,000.00 as a compromised
amount of what was owed, and she was entitled to indemnification from Husband
pursuant to the decree. The trial court overruled the objection, finding that, although Wife
was not required to provide Husband notice of the debt prior to settling the debt, she was
required to provide Husband proof of payment to trigger Husband’s responsibility to
indemnify prior to litigating this issue in a motion to show cause.
{¶45} On appeal, Wife contends that the court’s ruling overlooks the testimony of
the landscaper, who maintained that he contacted Husband regarding his charges, and
Husband directed the landscaper to Wife. However, Husband’s knowledge of an
3. Husband did not object to this portion of the magistrate’s decision that concluded Wife was not
required to notify Husband prior to paying the landscaping bill.
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outstanding landscaping debt does not provide Husband notice that Wife has paid the
debt or the amount she paid. In her brief, Wife maintains that if Husband “wasn’t aware
of the amount prior to the filing of” Wife’s motion, “he certainly was as of that date.”
Although this may be true, Wife does not explain how the trial court erred in determining
that she was required to provide Husband some notice of payment prior to seeking to
hold him in contempt for failing to indemnify her. Accordingly, Wife’s first assigned error
lacks merit.
{¶46} Having addressed the assignments of error pertaining to the merits of the
parties’ respective motions for contempt, we address together Husband’s fifth assigned
error and Wife’s second assigned error, which both involve attorney fees. In these
assigned errors, the parties contend:
[Husband’s Fifth Assigned Error:] The court committed
prejudicial error in denying Franklin’s motion for attorney fees
and awarding Michelle attorney fees on the basis that she
should not have had to defend against Franklin’s claims for
the $17,500 and damage to the property/broom-clean
condition when the issue of the $17,500 was submitted solely
on briefing, occupied no hearing time and should have been
decided in Franklin's favor, and when it is undisputed that
Michelle did leave behind trash which Franklin disposed of at
his expense and did leave the home with waste and damage
in violation of her warranty.
[Wife’s Second Assigned Error:] The trial court erred in only
awarding Michelle 60% of her attorney fees when equity
demanded that Franklin should pay all of her attorney fees in
defending against his Motion to Show Cause and in
prosecuting hers.
{¶47} Pursuant to R.C. 3105.73(B):
In any post-decree motion or proceeding that arises out of an
action for divorce, dissolution, legal separation, or annulment
of marriage or an appeal of that motion or proceeding, the
court may award all or part of reasonable attorney’s fees and
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litigation expenses to either party if the court finds the award
equitable. In determining whether an award is equitable, the
court may consider the parties’ income, the conduct of the
parties, and any other relevant factors the court deems
appropriate, but it may not consider the parties’ assets.
{¶48} “The statute gives a trial court wide latitude to award attorney fees and
litigation expenses if it finds the award equitable.” (Citation omitted.) Lindsey v. Lindsey,
2021-Ohio-2060,
174 N.E.3d 458, ¶ 44 (11th Dist.).
{¶49} Here, in ruling on the parties’ objections, the trial court determined that
Husband’s contempt claim regarding interim attorney fee reimbursement was “baseless.”
In addition, the court agreed with the magistrate that Husband failed to provide reliable,
consistent, and credible testimony and evidence regarding his claim that Wife should be
held in contempt for not leaving the residence in broom-clean condition. The court
ultimately agreed with the magistrate that Husband’s request for attorney fees be denied
and that Wife be awarded 60% of her attorney fees, and the court recalculated that
percentage to the precise figure of $20,971.80.
{¶50} On appeal, Husband argues that based on the trial court’s reasoning,
because Wife did not prevail on her contempt claim, she should likewise have been
denied attorney fees, and, because Husband should have prevailed on his claims, he
should have been awarded attorney fees. However, the trial court did not award fees to
Wife on Husband’s claims solely because he did not prevail, it did so because it
determined that Husband’s claim as to reimbursement of interim fees was “baseless,” and
because his testimony regarding Wife’s failure to leave the residence in broom-clean
condition and the clean-up of the residence was unreliable and inconsistent. Further, as
addressed above in our discussion of Husband’s first through fourth assigned errors,
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Husband has not established that the court erred in denying his motion to hold Wife in
contempt.
{¶51} Wife argues that the trial court should have awarded her the entirety of her
attorney fees because the evidence submitted at the hearings before the magistrate
demonstrated that Husband pursued frivolous actions against her for the sole purpose of
ruining her financially. However, the trial court did find Husband’s claim regarding the
interim attorney fees to be baseless, and the award of attorney fees included time that
Wife’s counsel estimated that he spent on defense of this claim. In addition, the trial
court’s award of the attorney fees to her includes time spent on defense of Husband’s
claim that she failed to leave the home in broom-clean condition. We cannot say the trial
court abused its discretion in failing to award Wife attorney fees incurred due to her
unsuccessful motion to hold Husband in contempt or for her motion to compel production
of documents that the trial court concluded were irrelevant.
{¶52} Further, the parties raise arguments regarding stipulations as to when their
attorney fee affidavits were to be submitted, whether there existed a stipulation as to the
reasonableness and necessity of fees, whether evidence should have been considered
relative to a separate case, and whether the evidence demonstrated ill-intent on behalf of
Husband in filing his motions. However, given the trial court’s bases for awarding Wife
attorney fees on two of Husband’s claims, and because there exists no challenge to Wife’s
attorney fee affidavit, the court’s ruling on the remaining issues argued by the parties in
the present assigned errors do not bear on the ultimate award of attorney fees.
Accordingly, neither party has demonstrated that the court’s denial of Husband’s request
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for attorney fees and the partial granting of Wife’s request for attorney fees constituted an
abuse of discretion.
{¶53} Accordingly, Husband’s fifth assigned error and Wife’s second assigned
error lack merit.
{¶54} In his sixth assigned error, Husband argues:
{¶55} “In ruling on Franklin’s objections to the Magistrate’s ruling, the Court
committed prejudicial error by failing to undertake an independent review of the record.”
{¶56} Pursuant to Civ.R. 53(D)(4)(d), “In ruling on objections, 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.”
{¶57} Husband first maintains that, had the trial court independently reviewed the
record, it would have agreed with him that certain damages occurred to the residence
during the period of Wife’s occupancy. Further, Husband maintains that, had an
independent review occurred, the trial court would have determined that the parties’ joint
exhibit did not relieve Wife of her duty to remove personal items, as she testified that she
did remove personal items not listed on the joint exhibit. However, the trial court’s
disagreement with Husband’s position on these issues does not establish that the court
failed to independently review the objected matters.
{¶58} Further, Husband cites instances where he maintains the trial court made
statements inconsistent with the testimony. First, Husband maintains that the court found
he was not present at the residence on the day his movers removed items from the home
after Wife had vacated the residence. Husband maintains that his testimony established
he was only not present when certain items were thrown out, but he did testify that he
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was present that day. Next, Husband maintains that the trial court incorrectly stated in its
decision that the magistrate did not use the term “pristine condition” in the magistrate’s
decision. Husband references the portion of the magistrate’s decision wherein the term
was used. Although these statements in the court’s ruling may have been inaccurate, it
does not establish that the trial court failed to independently review the objected matters.
{¶59} Husband further cites to the trial court’s determinations that (1) he was on
notice of damage to the kitchen floor caused by a water cooler prior to entering into the
in-court settlement, and (2) the damage was noted on an appraisal conducted in 2017.
Husband maintains that these statements are inconsistent with an independent review
because the trial court excluded the testimony of the appraiser, and the damage occurring
to the kitchen floor that was included in the appraisal was different damage to the floor
than the water cooler damage, which occurred during Wife’s occupancy. Although the
trial court appears to have incorrectly identified the floor damage, we conclude, again,
that this misidentification does not establish that the trial court failed to independently
review the objected matters.
{¶60} Last, Husband maintains that the trial court inaccurately characterized his
claim for contempt on the interim attorney fee award as “consum[ing] much of the trial
transcript.” Husband maintains that the transcript contains no testimony regarding this
argument, as he had agreed to submit this issue on written argument, and only a small
portion of argument at the hearings was devoted to this issue.
{¶61} The transcript does indicate that there was no “testimony” advanced on the
issue of interim attorney fees and expenses, as counsel for both parties agreed that it
constituted a legal issue. Approximately 12 pages of transcript contain the parties’
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arguments pertaining to this claim. The trial court’s characterization of this as “much” of
the transcript may not have been the most appropriate term, but, again, it does not
demonstrate that the trial court failed to conduct an independent investigation.
{¶62} Despite the above nonprejudicial misstatements or mischaracterizations,
the trial court’s 18-page decision assessed each of the numerous objections raised and
appears to independently review each objection.
{¶63} Accordingly, Husband’s sixth assigned error lacks merit.
{¶64} The judgment is affirmed.
MATT LYNCH, J.,
ROBERT J. PATTON, J.,
concur.
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