I must respectfully dissent from the majority's reversal of the post-trial award of attorney fees because (1) there was sufficient evidence to support the trial court's findings that appellant was better able to pay some of the attorney fees than appellee and that the fees were reasonable, and (2) proper allowance was made for the $7,500 in fees previously remanded by this court. I also find that the trial court made a reasonable allocation of the fees between the parties based on their respective abilities to pay. In short, I would affirm the allowance of fees except for the costs that this court previously ordered should be borne by appellee.
"Upon appeal the only questions for inquiry are whether the factual conclusions upon which the trial court based the exercise of its discretion were against the manifest weight of the evidence; or, whether there was an abuse of discretion."Swanson v. Swanson (1976), 48 Ohio App.2d 85, 90, 2 O.O.3d 65, 68, 355 N.E.2d 894, 898; Linehan v. Linehan (1986), 34 Ohio app.3d 124, 128, 517 N.E.2d 967, 971-972; Oatey v. Oatey (1992),83 Ohio App.3d 251, 263, 614 N.E.2d 1054, 1061-1062; McCoy v.McCoy (1993), 91 Ohio App.3d 570, 583, 632 N.E.2d 1358,1366-1367. An "`abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482,450 N.E.2d 1140, 1142; Oatey, 83 Ohio App.3d at 263,614 N.E.2d at 1061-062. "A decision to award or not to award attorney fees should not be interfered with absent a clear showing of abuse or prejudice by the trial court." Birath v. Birath (1988), 53 Ohio App.3d 31,39, 558 N.E.2d 63, 71.
The primary issues on this appeal are (1) whether the appellee was entitled to attorney fees for what proved to be unsuccessful posttrial efforts to improve the terms of the divorce decree and (2) whether the evidence in support of the attorney fees was sufficient to sustain the court's discretionary award. *Page 360
There is no question that a party to divorce proceedings can obtain an award of attorney fees from the opposite party. R.C.3105.18(H). An award of appellate fees depends on the satisfaction of certain conditions. This court stated in Lee v.Lee (1983), 10 Ohio App.3d 113, 116-117, 10 OBR 137, 140-141,460 N.E.2d 710, 714, as follows:
"Five conditions must exist before a trial court awards appellate attorney fees as alimony: (1) the supported spouse needed such assistance; (2) the supporting spouse has the ability to pay; (3) the appeal must have been taken or resisted by the supported spouse in good faith; (4) there was reasonable ground for the supported spouse's appellate position; and (5) the amount of the fees allowed is reasonable. These matters can be considered by the trial court if an appropriate motion is filed there."
It cannot be denied that the judgment entry of the trial court herein made the requisite findings to sustain an award of attorney fees, to wit:
"The court finds * * * that plaintiff has incurred reasonable attorney fees and expenses in the amount of $27,821.95 in prosecution of her appeal * * *.
"[T]he plaintiff does not have the ability to pay all of these fees while defendant does have the ability to pay a significant portion * * *.
"* * * Plaintiff's appeal was made in good faith and was reasonably necessary to insure a complete determination of plaintiff's legal rights.
"* * * [T]he evidence and testimony submitted at the hearing [are] legally sufficient to support an award of fees and expenses. * * *"
These findings satisfy the Lee requirements, unless the court abused its discretion in reaching its conclusions without sufficient evidence. A review of the evidence presented at the hearing leads me to the conclusion that the trial court did not award the fees without proper evidentiary support.
Appellee's counsel submitted and testified to her qualifications, an itemized statement of the hours spent in increments of one-tenth of an hour for the services rendered, her customary rates, the reasonableness of the rates, the good faith in pursuing the relief, and the novelty of the issues involved. Appellant cross-examined, but offered no evidence in opposition to appellee's submission. Furthermore, discretion in these matters is entrusted to the trial court because "[t]hat tribunal already possesses some information useful in making an intelligent decision on that subject. It is better suited to conduct evidentiary hearings necessary to evaluate the justification for such services, the reasonableness of resulting fees, and the supporting spouse's ability to pay such amounts."Lee, supra, 10 Ohio App.3d at 116, 10 OBR at 140,460 N.E.2d at 714. *Page 361
The trial court, being familiar with the efforts of counsel and the issues, is better suited than this court to make a judgment on the credibility of appellee's submission on the need for fee-shifting and the reasonableness of the request. In the absence of any offer of countervailing evidence by appellant, it cannot be said that the award was against the manifest weight of the evidence.
For the sake of clarity, I am compelled to cite further elaboration from the record.
The majority states: "In the instant case, counsel presented no evidence concerning the reasonableness of her fees * * *." The court is mistaken, as cross-examination of counsel revealed the following:
"Q. Now, the motion that you filed in this matter for fees, I believe, contains an affidavit on your behalf indicating that the fair and reasonable value of posttrial services is $25,000?
"A. Correct."
I note that the record before this court does not contain the motion or affidavit referred to, but since appellant did not include it in the record, we must presume regularity and presume that the trial court had the benefit of an affidavit of appellee's counsel which attested to the reasonableness of her fees.
The majority also reversed in part on the grounds that "[w]e find no evidence to support the trial court's determination that appellant is more able to pay some of the attorney fees than appellee." It is true, as the majority states, that "counsel presented no evidence concerning her client's present income," but it is incorrect to state that there was no evidence from which the court could determine the relative abilities of the parties to pay the fees. There was ample evidence in the record on this score.
Appellant earned $125,000 in 1992 from his successful insurance business and paid his new wife $45,000 as an officer of the company. Appellee's counsel stated on opening statement that appellee "makes a salary just a little over $20,000 per year," but neglected to elicit that testimony from appellee. Instead, evidence of appellee indicated she had $9,000 on hand from the sale of the marital home, she did not have funds to pay her counsel's fees, she paid rent of $897 per month, $425 per month on a car loan, $120 per month for hospitalization, and $300 per month on food and clothing, and contributed $100 per month to her daughter's tuition. These expenses annualized equal $21,184.
I find there was adequate support from this evidence, plus the trial court's experience with the case, to sustain the finding that "the plaintiff does not have the ability to pay all of these fees while defendant does have the ability to pay a significant portion." The respective financial positions of the parties were manifest from the record and the previous history at the original trial. *Page 362
Although the majority holds that the trial court did not heed this court's admonition with regard to the $7,500 in fees reversed on the first appeal, I disagree with that conclusion. As stated above, appellee submitted an itemized statement of her fees at an evidentiary hearing held for that purpose. This itemization included the $7,500 in fees previously remanded but incurred in objecting to the decree and seeking reconsideration and a new trial. At the hearing, appellee's counsel testified to the reasonableness of the fees as noted and was subject to cross-examination thereon. Appellant offered no contrary evidence.
The majority also states: "Assuming arguendo that appellant is more able to pay some of the attorney fees than appellee, we find also that the trial court did not fairly arrive at a proper portion of the fees that should be borne by appellant." I do not reach the same conclusion from this record.
As I understand the judgment entry, the court found, "based on the pleadings and the evidence," that plaintiff had incurred reasonable attorney fees and expenses in the total amount of $27,821.95 after trial. It then deducted or credited $7,500 ("a setoff of the previous overpayment" by the appellant), leaving a net amount of $20,321. From this sum, the court deducted $3,454 ("an apportionment of the total fee according to the percentage of each party's income to the combined total [income]"), leaving the net award of $16,867. Since the wife's income was approximately one-sixth of the husband's income, she was allocated approximately one-sixth of the fees to be paid by herself. I find no abuse of discretion in the court's methodology or unfairness in its application.
The majority cites this court's opinion in Swanson v.Swanson, supra, for the holding that "the trial court must consider many factors in determining a proper amount of attorney fees, including DR 2-106(B)." We have no reason to believe that the court did not consider those factors and we must presume that it did because it refers to Swanson in its judgment entry.
The majority also deplores the appellee's unsuccessful efforts to modify or overturn the outcome of the original trial through subsequent motions and appellate efforts. It emphasizes, and properly so, the vigilance that the profession and courts must exercise to prevent an abuse of the system for the benefit of lawyers at the expense of the parties and justice by unnecessarily prolonging litigation. The balance that must be struck is an exceedingly delicate one in this kind of fee-shifting case. It has been well stated in Lee as follows:
"This court succinctly stated the purpose for granting these fees in Kelly v. Kelly (June 22, 1978), Cuyahoga App. No. 37476, unreported, at pages 12-13:
"`* * * [I]t is apparent that the appellant lacked the funds to attempt to seek a modification of [the] support order. Without the assurance that she may be *Page 363 reimbursed, at least partially, for a successful prosecution of a meritorious claim, her right to seek modification would be meaningless. * * *'
"This same rationale applies to a spouse seeking or resisting appellate relief. Such an award would enable the spouse to prepare properly and present his or her case, provided the supported spouse's circumstances require and the supporting spouse's means permit the award. See Gust v. Gust (1912),69 Wn. 220, 124 P. 504; Duxstad v. Duxstad (1908), 16 Wyo. 396,94 P. 463.
"A vindictive supported spouse might file a `frivolous' appeal or frivolously resist a patently meritorious appeal. In order to circumvent this abuse of judicial process, the party seeking attorney fees must act in good faith and have reasonable grounds to believe that his or her appellate position is meritorious. In re Marriage of Pollard (1979), 97 Cal.App.3d 535,158 Cal.Rptr. 849. See, also, Garrison v. Garrison (Iowa 1970),179 N.W.2d 466; Wilkerson v. Wilkerson (Fla.App. 1965),179 So.2d 592; Sokolow v. Sokolow (1961), 28 Misc.2d 962,216 N.Y.S.2d 495; Saunders v. Saunders (1953), 140 Conn. 140, 98 A.2d 815;Chubb v. Chubb (1941), 297 Mich. 501, 298 N.W. 111. The party need not be assured of success. Rather, reasonable persons should believe that the contentions asserted merit attention and resolution by the appellate court. In re Marriage of Pollard,supra." Id., 10 Ohio App.3d at 116, 10 OBR at 140-141,460 N.E.2d at 714.
Here, the trial court's judgment entry found that "despite the affirmance of the decree in this action, plaintiff's appeal was made in good faith and was reasonably necessary to insure a complete determination of the plaintiff's legal rights." Since the trial court "already possesses some information useful in making an intelligent decision on that subject," it is "better suited to conduct evidentiary hearings necessary to evaluate the justification for such services". Lee, 10 Ohio App.3d at 116, 10 OBR at 140, 460 N.E.2d at 714. The initial burden of determining good faith rests with the fact-finder, the trial court. It should be overturned only for a clear showing of abuse of discretion. Birath, supra, 53 Ohio App.3d at 39,558 N.E.2d at 71. I find none here on the principal issues, especially where the appellant produced no evidence to rebut the appellee's submission. I am at a loss to explain how the majority holds the trial court's findings against the manifest weight of the evidence when appellant produced no evidence.
I do find that the court abused its discretion in allowing an award of costs to appellee in the sum of $2,091.95 on its unsuccessful appeal. This court has previously indicated that costs of the original appeal in Farley I be charged against appellee herein.
Accordingly, I would modify the award of $16,867.22 by reducing it by $2,091.95 and, as modified, affirm a judgment of $14,775.27. *Page 364