Montgomery County Welfare Department v. Bobo

The sole issue before this court is: "May a non-custodial parent recover attorney fees upon successfully defending a post-decree enforcement action for child support?"

The general rule in Ohio is that in the absence of a statutory provision making attorney fees a part of the costs, such fees cannot be recovered. State, ex rel. Grosser, v. Boy (1976),46 Ohio St.2d 184, 185 [75 O.O.2d 228].

As this is a post-decree proceeding, I agree that Civ. R. 75(M)(1) does not apply; however, Blum v. Blum (1967), 9 Ohio St.2d 92 [38 O.O.2d 224], does apply. The syllabus of that case provides:

"A trial court has authority, after the entry of a divorce decree, to enter an order requiring the divorced husband to pay reasonable expense money to his former wife to enable her to pay attorney fees incurred in post-decree proceedings relative to the support of the minor children of the marriage. (Sections 3103.03,3105.061, 3105.14 and 3109.05 of the Revised Code construed and applied.)"

Neither the term "non-custodial" or "custodial" parent appears in the syllabus. To hold under this syllabus that a former husband must pay to a former wife but that, under all circumstances, a former wife is not required to pay a former husband contravenes our obligations under the Fourteenth Amendment to the Constitution of the United States of America as such a holding would deny the equal protection of the law to a substantial number of litigants.

It is my opinion that the trial judge under Blum, supra, has discretionary authority to award attorney fees in post-decree proceedings relative to the support of the minor children of the parties to either party, depending on the facts of a particular case.

It is my conclusion, then, that the trial judge may award to a non-custodial parent attorney fees upon successfully defending a post-decree enforcement action for child support, if the facts of the case require, and that such an award rests within the discretionary authority of the trial judge. See, also, Civ. R. 11.

The public policy argument fails because Civ. R. 75(M)(1) recognizes that either party may be required to pay the attorney fees of the other party. In my view, the public policy considerations are the same whether the situation involves pre- or post-decree proceedings.

While I agree with the majority that parents are civilly and criminally liable for the willful failure to support their children, that courts should impose swift and sure sanctions against any offending parents and that no one should be rewarded for wrongdoing, in this case, this defendant has not had the merits of his claimed wrongdoing litigated. It has not yet been determined whether this defendant has either violated the law or the order of the court.

The only issue before this court is whether the judgment awarding $345 for attorney fees should be affirmed. Appellant makes no objection to the amount awarded as attorney fees or to the dismissal. I find no abuse of discretion by the trial judge. Having concluded that the trial judge had authority to award attorney fees within the court's discretion, I would affirm the judgment of the trial court. *Page 73