Fisher v. Fisher

[Cite as Fisher v. Fisher, 2011-Ohio-5251.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 95821

SUSAN K. FISHER
PLAINTIFF-APPELLEE

vs.

TIMOTHY E. FISHER
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Common Pleas Court
Domestic Relations Division
Case No. D-253906

BEFORE: Boyle, J., Kilbane, A.J., and Rocco, J.

RELEASED AND JOURNALIZED: October 13, 2011
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ATTORNEYS FOR APPELLANT

Joseph G. Stafford
Gregory J. Moore
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, Ohio 44114

ATTORNEY FOR APPELLEE

Jonathan A. Rich
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Cleveland, Ohio 44113

MARY J. BOYLE, J.:

{¶ 1} The long and convoluted procedural history of this case is too agonizing to

recite. Defendant-appellant, Timothy Fisher, and plaintiff-appellee, Susan Fisher, were

married in 1985, and had two children during the marriage, both of whom are now

emancipated. Although they separated in April 1997 and divorced in May 2000, they

have essentially been fighting in court ever since — for over 14 years. See Fisher v.

Fisher (June 28, 2001), 8th Dist. No. 78092. Defendant now appeals for the second

time, raising seven assignments of error. We find no merit to his arguments and affirm.
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{¶ 2} In the first judgment that defendant is appealing, the trial court adopted the

magistrate’s decision on several of plaintiff’s motions that were filed in 2000, 2001, and

2004. The magistrate found defendant in contempt of court for failing to pay the full

amount of the parties’ property division under their judgment entry of divorce. The

trial court adopted the magistrate’s decision and ordered the defendant to pay plaintiff

$20,548, plus statutory interest from July 9, 2001 (the date this court journalized the first

appeal). The magistrate also recommended, and the trial court adopted and ordered,

that defendant pay plaintiff $7,000 for her attorney fees in the matter.

{¶ 3} In the second judgment that defendant is appealing, the trial court adopted

the magistrate’s decision regarding defendant’s motion to modify child support.

Although the trial court granted defendant’s motion in part, defendant now raises several

issues relating to the magistrate’s decision.

Admission of Evidence

{¶ 4} In his first assignment of error, defendant argues that the trial court abused

its discretion by striking additional evidence that he submitted with his written closing

argument.

{¶ 5} The trial court’s discretion to admit or exclude evidence is broad “so long

as such discretion is exercised in line with the rules of procedure and evidence.” Rigby

v. Lake Cty. (1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056. An appellate court
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reviewing the trial court’s admission of evidence must limit its review to whether the

lower court abused its discretion. Id.

{¶ 6} At the close of the hearing on February 5, 2009, the following took place:

{¶ 7} “THE MAGISTRATE: How do you want to do closing? Whatever is

cheapest and easier for you.

{¶ 8} “The facts in this case I don’t have a problem remembering. But there are

a lot of numbers. You may just want to give me some numbers. Do you want to do it

orally? I don’t care. If you want a week or so.

{¶ 9} “[DEFENDANT’S ATTORNEY]: We can submit written.”

{¶ 10} Defense counsel then requested until the end of February 2009 to submit

his written closing arguments, which the trial court granted. Defense counsel then

stated, “[a]ny further documentation — ,” to which the trial court replied, “Yeah. If it’s

self-authenticating, I’ll consider it. If not, I’ll have to figure something out.” The

hearing then ended.

{¶ 11} According to the magistrate, defendant attached “a stack of documents” to

his closing argument, “purporting to establish that he should receive credit against his

property division debt for payments for children’s activity and medical expenses that

should have been contributed to by the plaintiff.” The magistrate determined that these

documents were not self-authenticating and could not “be admitted into evidence after

the hearing has been completed.” The magistrate further stated that “defendant had
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four years *** to supply his counsel with these records so that they could properly be

placed into evidence, but did not do so until this late date.”

{¶ 12} After reviewing the record, we find no error on the part of the trial court.

Although defendant claims that the magistrate requested he submit additional evidentiary

material, that was not the case. The magistrate requested “numbers,” not documents.

When defendant requested to submit documentation, the magistrate cautioned defendant

that it would not consider any documents that were not self-authenticating.

{¶ 13} Even if the magistrate had erred by striking the documents, which he did

not, this argument is moot. The trial court granted defendant’s objections to the

magistrate’s decision regarding child support matters, and at the rehearing on remand,

the magistrate then permitted defendant to admit the exhibits that he had attached to his

closing argument that were stricken — the same ones he is complaining about now.

{¶ 14} Accordingly, defendant’s first assignment of error is overruled.

Contempt of Court

{¶ 15} In his second assignment of error, defendant argues that the trial court

abused its discretion by finding him in contempt of court (granting plaintiff’s show-cause

motions filed on July 20, 2000, August 20, 2001, and January 20, 2004). In her

motions, plaintiff argued that defendant failed to fulfill his obligation under their

judgment entry of divorce to pay her 12 quarterly payments of $3,125, for a total of

$37,500.
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{¶ 16} Our standard of review regarding a finding of contempt is limited to a

determination of whether the trial court abused its discretion. Kaput v. Kaput, 8th Dist.

No. 94340, 2011-Ohio-10, ¶9, citing Walton v. Walton, 6th Dist. No. WD-05-002,

2005-Ohio-5734.

A. Unclean Hands

{¶ 17} Defendant first argues that plaintiff should not have prevailed on her

show-cause motions because she had “unclean hands.” Defendant claims that plaintiff

failed to comply with several provisions of their judgment entry of divorce.

{¶ 18} R.C. 3105.011 states that a judge in a domestic relations action has “full

equitable powers *** appropriate to the determination of all domestic relations matters.”

An equitable defense can be raised against a statutory remedy, and thus the equitable

doctrine of unclean hands can be employed as a defense where appropriate in a divorce

or separation action. See Miller v. Miller (1993), 92 Ohio App.3d 340, 346-347, 635

N.E.2d 384; Seitz v. Kozma, 8th Dist No. 86922, 2006-Ohio-3591.

{¶ 19} The doctrine of unclean hands states the following: “‘he who seeks equity

must come with clean hands.’ ‘Equity is based upon what is perceived as just under the

circumstances of each case and, when both parties are guilty of injustice, a court of

equity will leave them as they are.’” Patterson v. Blanton (1996), 109 Ohio App.3d

349, 354, 672 N.E.2d 208. But “the unclean hands doctrine should not be imposed

where a party has legal remedies available to address an opposing party’s asserted
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misconduct.” Safranek v. Safranek, 8th Dist. No. 80413, 2002-Ohio-5066, ¶20, citing

Miller at 348-349. In this respect, defendant could have filed a contempt motion

against plaintiff. Id. Thus, the unclean hands doctrine could not apply here.

B. Substantial Compliance

{¶ 20} Defendant next argues that he substantially complied with the property

division provision of the judgment entry of divorce. He asserts that because he paid

$75,532.28 of the $97,500 total award, that he should not have been in contempt. It is

undisputed that defendant paid $60,000 in one lump sum, as he was required to do under

the judgment entry of divorce. But as for the $37,500, the trial court found that

defendant only paid $9,812 of it, or only 26 percent of it. Even considering the $60,000

that he paid in a lump sum, that would only make it 71 percent compliance of the total

amount. We cannot think of any bank that would accept 71 percent of a loan paid, so

plaintiff should not have to either.

C. Inability to Pay as Defense to Contempt

{¶ 21} Defendant claims that his inability to pay was a defense to finding him in

contempt. Defendant is correct that a person cannot be found to be in contempt of court

if it was not within his power to obey the court order. See Courtney v. Courtney

(1984), 16 Ohio App.3d 329, 475 N.E.2d 1284. The evidence presented at trial,

however, established that defendant’s income did not substantially decrease until 2007

— well after he should have already paid the property division.
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D. Modification of Child Support as Defense to Contempt

{¶ 22} Finally, defendant argues that “the most prejudicial result was the fact that

the magistrate’s decision of May 12, 2009 declined to modify [defendant’s] child support

obligation — which modification would have and does provide a defense to any alleged

contempt action.” We disagree.

{¶ 23} In the magistrate’s decision dated May 12, 2009, the magistrate denied

defendant’s motion to modify child support. The trial court granted defendant’s

objections in part — with respect to defendant’s motion to modify child support. After

the hearing on remand, the magistrate recommended granting defendant’s motion to

modify child support in part. But defendant’s child support obligation had nothing to

do with defendant’s obligation to pay plaintiff $37,500 as part of their property division

in their judgment entry of divorce, which is why the magistrate found defendant in

contempt. Thus, defendant’s arguments to the contrary are not well taken.

Statutory Interest

{¶ 24} Defendant also argues that the trial court erred when it ordered him to pay

statutory interest “given his substantial compliance with the Trial Court’s Orders, and his

payment of at least $75,000 of the $97,500.” The trial court, however, did not order

defendant to pay statutory interest on the amount he already paid. Rather, the trial court
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ordered him to pay statutory interest on the amount it determined he had not paid —

$20,548.1

{¶ 25} R.C. 1343.03(A) states that “when money becomes due and payable upon

*** all judgments, decrees, and orders of any judicial tribunal for the payment of money

***, the creditor is entitled to interest at the rate per annum determined pursuant to

section 5703.47 of the Revised Code.” “An order distributing marital assets from one

party to another has the force of a money judgment, and the recipient is entitled to

interest on any amount due and owing under the order but unpaid.” Woloch v. Foster

(1994), 98 Ohio App.3d 806, 812, 649 N.E.2d 918.

{¶ 26} In Woloch, the divorce decree provided that a certain amount of money

was to be paid “as soon as possible” to one of the parties as her portion of a marital asset.

Id. In Woloch, the Second District determined that this amount that was to be paid “as

soon as possible” was subject to the then statutory 10 percent interest rate. Id.

Moreover, in Clymer v. Clymer (Sept. 21, 2000), 10th Dist. No. 99AP-924, the Tenth

District clarified that statutory interest is only applicable to divorce decree obligations if

This amount should have been $7,120 more, or $27,688. This is because in the decision
1

dated May 12, 2009, the magistrate gave defendant a $7,120 credit toward his obligation he owed on
the amount for the property division that was apparently being held by CSEA. But in the
magistrate’s decision dated March 10, 2010, after the trial court remanded for a hearing on
defendant’s motion to modify child support, the magistrate found “that defendant’s ultimate debt to
plaintiff must increase by $7,120” because CSEA was not holding any money, and therefore,
defendant should not have received a credit for this amount.
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those obligations have been reduced to a lump sum judgment. See, also, Rizzen v.

Spaman (1995), 106 Ohio App.3d 95, 111, 665 N.E.2d 283.

{¶ 27} In the instant matter, defendant’s obligation was reduced to a lump sum

judgment. Consequently, plaintiff is entitled to the statutory interest.

Attorney Fees

{¶ 28} Defendant further argues that the trial court abused its discretion when it

ordered him to pay plaintiff’s attorney fees. He maintains that plaintiff failed to

“provide the actual bills/invoices necessary to justify her request for attorney fees.”

{¶ 29} An award of attorney fees lies within the sound discretion of the trial court.

Rand v. Rand (1985), 18 Ohio St.3d 356, 359, 481 N.E.2d 609. In contempt actions in

domestic relations cases, a trial court may award attorney fees in the absence of

supporting evidence when the amount of work and time spent on such a case is apparent.

Labriola v. Labriola (Nov. 5, 2001), 5th Dist. No. 2001 CA00081, citing Wilder v.

Wilder (Sept. 7, 1995), 10th Dist. No. 94AAPE12-1810.

{¶ 30} Defendant does not challenge plaintiff’s attorney’s amount of work and

time spent in preparing this contempt action and appearing in court. Instead, defendant

challenges the fact that plaintiff presented no documentary evidence to support the

requested fees. But, as noted in the Wilder case, such evidence is not required when the

amount of work and time spent on the case is apparent.
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{¶ 31} Here, plaintiff requested $30,000 in attorney fees for prosecuting her

contempt motions — that she first filed nine years before the magistrate’s decision.

The magistrate determined that $7,000 was reasonable, given that he also recommended

(and the trial court adopted and ordered) that defendant pay statutory interest on the

amount he still owed plaintiff. Based upon our review of the record, we do not find the

trial court abused its discretion when it awarded appellee attorney fees in the amount of

$7,000. According to the parties’ judgment entry of divorce, defendant was supposed

to begin paying plaintiff $37,500 in 12 quarterly payments beginning on September 30,

1999 (although the judgment entry of divorce was not final until May 5, 2000). As of

2009, at the time of the hearing, defendant had only paid $9,812 toward that amount —

despite the fact that he earned $80,000 per year — at least up through 2004. Thus,

while this court would have awarded more attorney fees under the outrageous facts of

this case, we cannot say that the trial court abused its discretion when it awarded plaintiff

$7,000 in attorney fees.

{¶ 32} Accordingly, defendant’s second assignment of error is overruled.

Plaintiff’s Alleged Contempt

{¶ 33} In his third assignment of error, defendant argues that the trial court erred

by failing to find plaintiff in contempt of court. But defendant fails to separately argue

this assignment of error. Thus, we will not address it. See App.R. 12(A)(2); App.R.

16(A).
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Child Support Modification

{¶ 34} In defendant’s fourth, fifth, and sixth assignments of error, he argues that

the trial court erred in modifying his child support obligation. We disagree.

{¶ 35} When a party files a motion to modify child support, the court must: (1)

determine whether there has been a change of circumstances; and (2) if the

circumstances have changed, recalculate the child support obligation. Cheek v. Cheek

(1982), 2 Ohio App.3d 86, 87, 440 N.E.2d 831. A trial court’s determinations with

regard to modifying child support obligations will not be reversed on appeal absent a

showing of an abuse of discretion. Van Osdell v. Van Osdell, 12th Dist. No.

CA2007-10-123, 2008-Ohio-5843, ¶20. A judgment supported by some competent

credible evidence will not be reversed by a reviewing court as against the manifest

weight of the evidence. Leeth v. Leeth, 12th Dist. No. CA2009-02-024,

2009-Ohio-4260, ¶6.

{¶ 36} Defendant argues that the trial court erred when it imputed his income to

be $27,169. Although the magistrate indicated in his decision that he found defendant’s

income to be $27,169, that is not the amount the magistrate used in the child support

computation worksheets that were attached to the magistrate’s decision. For the 2007

and 2008 worksheets, the magistrate used $19,763 as defendant’s income (which was

taken exactly from defendant’s closing argument), and $27,169 as plaintiff’s income.

Thus, defendant’s argument is without merit.
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{¶ 37} The evidence in the record reveals that defendant moved to modify his

child support obligation on January 20, 2004, when he still earned $80,000 per year

(which is what he earned at the time of the parties’ divorce). The magistrate found that

his income did not substantially decline until January 1, 2007, and recommended that his

motion be granted as of that date. The magistrate then calculated defendant’s child

support obligation for the years 2007 and 2008, taking into account when each child

became emancipated (the first in June 2008, and the second in June 2009 — the trial

court corrected the magistrate’s typographical error of August 2009). The magistrate

then determined what defendant actually paid versus what he should have paid as set

forth under the new child support computation worksheets and gave him a credit for such

amount.

{¶ 38} The magistrate calculated that from January 1, 2007 to June 30, 2008,

defendant was obligated to pay $207.50 per month (including the 2 percent processing

fee) for each child. When the parties’ daughter became emancipated, defendant was

still obligated to pay $304 per month for their son until he became emancipated the

following year. Defendant does not find fault with these numbers, but argues the trial

court erred in determining the amount of credit he should receive based on what he had

actually paid from 2007 forward. But based on the record before us, we find no error in

the magistrate’s calculation.
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{¶ 39} Defendant also argues that the magistrate exceeded the scope of the

remand from the trial court by considering evidence presented by plaintiff regarding

expenses she incurred over the years raising the children. We agree the magistrate

exceeded the scope of the remand, but did so with respect to allowing plaintiff and

defendant to present evidence beyond the scope of the remand. Indeed, it was

defendant who first offered evidence exceeding the remand (all the exhibits that were

originally stricken from defendant’s closing argument). The scope of the remand was

limited to a calculation of child support from 2007 to the present and the determinations

of any credits owed regarding child support. Plaintiff’s counsel even objected to the

magistrate exceeding the scope of the remand, but was overruled by the magistrate, and

only then did plaintiff submit her own evidence.

{¶ 40} Accordingly, we conclude that the trial court did not abuse its discretion

when it adopted the magistrate’s decision.

Judicial Bias and Prejudice

{¶ 41} In his final assignment of error, defendant argues that the trial court’s order

of September 28, 2010 is void ab initio due to bias and prejudice.

{¶ 42} In In the Matter of the Adoption of C.M.H., 4th Dist. No. 07CA23,

2008-Ohio-1694, the court explained that “[j]udicial bias is ‘a hostile feeling or spirit of

ill will or undue friendship or favoritism toward one of the litigants or his attorney, with

the formation of a fixed anticipatory judgment on the part of the judge, as
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contradistinguished from an open state of mind which will be governed by law and the

facts.’ State ex rel. Pratt v. Weygandt (1956), 164 Ohio St. 463, 132 N.E.2d 191,

paragraph four of the syllabus. See, also, Cleveland Bar Association v. Cleary (2001),

93 Ohio St.3d 191, 201, 754 N.E.2d 235.”

{¶ 43} As noted in In the Matter of the Adoption of C.M.H., such challenges of

judicial prejudice and bias are not properly brought before an appellate court. “Rather,

appellant must make such a challenge under the provisions of R.C. 2701.03, which

requires an affidavit of prejudice to be filed with the Supreme Court of Ohio.” Baker v.

Ohio Dept. of Rehab. & Corr., 144 Ohio App.3d 740, 754, 2001-Ohio-2553, 761 N.E.2d

667. Only the chief justice of the Ohio Supreme Court or his designee has the authority

to determine a claim that a common pleas court judge is biased or prejudiced. Beer v.

Griffith (1978), 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775. Courts of appeals lack

authority to void the judgment of a trial court on such basis. Id.

{¶ 44} He also claims CSEA’s computation is not correct, but offers no support

for this argument.

{¶ 45} Accordingly, defendant’s seventh assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.
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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.

MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR