Zitkus v. Zitkus

[Cite as Zitkus v. Zitkus, 2019-Ohio-660.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

JODY L. ZITKUS, :
CASE NOS: CA2018-04-073
Appellee/Cross-Appellant, : CA2018-04-074

: OPINION
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:

RAYMOND E. ZITKUS, :

Appellant/Cross-Appellee. :

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR10-05-0549

Kuhn Unlimited, Ryan D. Kuhn, 1733 West Third Avenue, Columbus, Ohio 43212, for
appellee/cross-appellant

Ched H. Peck, 616 Dayton Street, Hamilton, Ohio 45011, for appellant/cross-appellee

RINGLAND, J.

{¶ 1} Appellant/cross-appellee, Raymond Zitkus ("Father"), appeals from a decision

of the Butler County Court of Common Pleas, Domestic Relations Division, following

postdecree petitions involving his dissolution from appellee/cross-appellant, Jody Zitkus

("Mother"). For the reasons detailed below, we affirm.

{¶ 2} The parties dissolved their marriage pursuant to a decree of dissolution filed on

July 27, 2010. As part of the dissolution proceedings, the parties submitted, and the trial
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court subsequently adopted, a separation agreement. Relevant to the present case, the

separation agreement addressed the care, custody, and support of the parties' two minor

children.

{¶ 3} The separation agreement designated Mother as the sole residential parent for

the children. Father was granted the standard order for parenting time and ordered to pay

child support. The parties were to consult regarding the children's participation in

extracurricular activities and to equally divide the costs of extracurricular activities. In

addition, the parties were to divide costs of uncovered health care expenses.

{¶ 4} At the time of the dissolution, the children resided with Mother in Hamilton, Ohio

while Father resided in the general vicinity of Morrow, Ohio. On July 19, 2012, Mother filed a

Notice of Relocation to Florence, Kentucky. In 2013, Mother relocated to Columbus, Ohio

with the children.

{¶ 5} The record reflects that Father has had a sporadic relationship with the children

and was inconsistent with exercising his parenting time. In addition, Father, at times, fell

behind in the payment of child support and other costs as specified in the separation

agreement. There is evidence to suggest that Father has struggled with alcohol and had

difficulty securing long-term employment for a period of time.

{¶ 6} On January 26, 2017, Father filed a number of postdecree motions: (1) motion

to modify designated custodian, (2) motion to modify parenting time, (3) motion for contempt

of parenting time, and (4) motion for attorney fees and costs. In his postdecree petition,

Father alleged that Mother had caused a change in circumstances by relocating the children

out of Butler County and "unilaterally and without cause withheld the minor children from

Father."

{¶ 7} On March 21, 2017, Mother responded by filing her own postdecree motions.

Initially Mother filed the following: (1) motion for contempt for nonpayment of child support,
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(2) motion for contempt of parenting provision-medical expenses, (3) motion for contempt of

parenting provision-other, and (4) motion for attorney fees and costs. Separately Mother also

filed: (1) motion to modify parenting time, (2) motion to modify child support-increase, and (3)

motion for attorney fees/costs.

{¶ 8} The parties engaged in discovery, during which Mother served Father with

several requests for admission that went unanswered. One business day prior to the

evidentiary hearing, Father satisfied his child support arrearage. On the day of trial, the

parties resolved many of the contested issues by joint stipulation. In accordance with the

stipulation, Father's custody motion was voluntarily dismissed. In addition, Father's parenting

time was reduced from 26 weekends per year to 24, midweek visitation was dissolved, and

Father's child support obligation was increased.

{¶ 9} The matter proceeded to trial on the remaining matters. Relevant to this

appeal, the remaining issues included: (1) Mother's motion for contempt and request for

reimbursement of extracurricular activity expenses and uncovered medical expenses, (2)

Mother's request for attorney fees, and (3) the establishment of an effective date for the

modified child support order.

{¶ 10} The magistrate issued a decision on September 29, 2017. Mother objected to

the magistrate's decision. On March 13, 2018, the trial court issued its decision and final

appealable order. The trial court's decision increased the amount of money that Father owed

Mother for extracurricular expenses, awarded Mother certain attorney fees, and modified the

effective date of the child support increase. Father now appeals the trial court's decision and

Mother has filed a separate cross-appeal, both raising three assignments of error for review.

{¶ 11} Father's Assignment of Error No. 1:

{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT WHEN IT ORDERED PLAINTIFF-APPELLANT TO REIMBURSE
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DEFENDANT-APPELLEE 50% OF EXTRACURRICULAR ACTIVITY EXPENSES.

{¶ 13} In his first assignment of error, Father argues the trial court erred by ordering

him to reimburse Mother for half of the extracurricular activity expenses incurred by the

children. We find Father's argument to be without merit.

{¶ 14} "An appellate court will not reverse a trial court's decision in a contempt

proceeding absent a showing of an abuse of discretion." Willis v. Willis, 149 Ohio App.3d 50,

2002-Ohio-3716, ¶ 63 (12th Dist.); Castanias v. Castanias, 12th Dist. Warren No. CA2009-

04-036, 2009-Ohio-6171, ¶ 11. An abuse of discretion is more than error of law or judgment;

it requires a finding that the trial court's attitude was unreasonable, arbitrary, or

unconscionable. Sparks v. Sparks, 12th Dist. Warren No. CA2010-10-096, 2011-Ohio-5746,

¶ 12.

{¶ 15} Pursuant to the terms of the separation agreement, Father and Mother agreed

to equally divide the costs for each child's extracurricular activities:

Mother and Father shall consult with each other regarding the
child's participation in extracurricular activities. Mother and
Father may attend all of the child's activities regardless of when
they are scheduled. Both parents will be flexible when [sic] the
scheduled parenting time and with each other to make sure the
child gets all [sic] to all of her activities. Mother and Father will
equally divide costs of all activities including sign-up fees,
equipment fees, all school fees, any sports, and/or clubs.

{¶ 16} The magistrate declined to find Father in contempt for failing to pay for school

and extracurricular activity fees. In so doing, the magistrate found that the separation

agreement lacked the specificity required to put either party on notice as to their rights and

responsibilities. Nevertheless, the magistrate found it equitable to allow Mother to seek

reimbursement for extracurricular activities incurred since March 23, 2016. As a result, the

magistrate only allowed a partial reimbursement of the extracurricular activity expenses.

{¶ 17} On Mother's objection, the trial court overruled the magistrate's decision, and

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instead found Father in contempt and ordered him to pay his half of the extracurricular

activities. In contrast to the magistrate's decision, the trial court found the terms of the

separation agreement to be sufficiently clear and determined that the limited reimbursement

allowed by the magistrate was not supported by any legal limitation or provision contained in

the separation agreement. As to Father's claim that he was not on notice of the expenses,

the trial court found that Father had the ability to contact the school and organizations to

confirm the children's participation and the associated costs.

{¶ 18} On appeal, Father argues that the trial court should not have ordered him to

pay half of the extracurricular activity fees because he was without knowledge of the

children's participation in activities, or the specific teams or organization of which the children

were members. Father maintains that he was unable to independently ascertain this

information and argues that it is "unconscionable that Mother can accumulate these

expenses for years, [and] submit the running total to Father after his portion has exceeded

several thousand dollars." Father also argues that Mother failed to provide supporting

documentation for the expenses and violated the terms of the separation agreement by

failing to discuss the children's involvement in the activity and exchange activity schedules.

{¶ 19} Following review, we find the trial court did not abuse its discretion by ordering

Father to pay half of the extracurricular activity expenses. In this case, Mother provided a

spreadsheet of the extracurricular expenses incurred and testified as to the process she

followed in documenting those expenses and informing Father. As noted by the trial court,

Father had the ability to contact the school and organizations to confirm the children's

participation and the associated costs. In addition, Father's claim that he was blindsided by

the expenses is rebutted by Mother's testimony. In her testimony, Mother explained that she

provided the spreadsheet to Father at numerous times over the years, but Father had

constant excuses for why he could not pay at the time. Indeed, there is evidence that Father,
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at times, requested that certain expenses be added to the spreadsheet as credit to be repaid

when he got "back on his feet." Thus, we find the trial court did not err by finding Father in

contempt and ordering him to pay half of the extracurricular activity expenses. As a result,

Father's first assignment of error is overruled.

{¶ 20} Father's Assignment of Error No. 2:

{¶ 21} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT WHEN IT AWARDED ATTORNEY FEES TO DEFENDANT-APPELLEE FOR

DEFENDANT-APPELLEE'S CONTEMPT MOTION REGARDING CHILD SUPPORT

ARREARS.

{¶ 22} In his second assignment of error, Father argues the trial court erred by

awarding Mother attorney fees related to Mother's contempt motion regarding child support

arrears. Father's argument is without merit.

{¶ 23} "It is well-established that an award of attorney fees is within the sound

discretion of the trial court." Wolf v. Wolf, 12th Dist. Preble No. CA2009-01-001, 2009-Ohio-

3687, ¶ 39. As a result, a trial court's decision to award attorney fees will be reversed only if

it amounts to an abuse of discretion. Homme v. Homme, 12th Dist. Butler No. CA2010-04-

093, 2010-Ohio-6080, ¶ 69.

{¶ 24} In this case, the magistrate ordered that each party be responsible for their own

attorney fees, citing the "unique facts, circumstances, and posture of this case" and also

noting that "the fact that the majority of issues were resolved by agreements, the court's

decision to deny both Father's and Mother's contempt motions, the conduct of the parties in

the instant litigation, and the relative parity of income between the parties."

{¶ 25} The trial court overruled the magistrate's decision and ordered Father to pay

$142.50 for the nonpayment of his child support obligation and $420.00 for the related

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contempt finding.1 Contrary to Father's stated position in his brief, the trial court did, in fact,

make the relevant contempt finding. On appeal, Father argues the trial court erred, but only

generally argues that the magistrate "appropriately considered all of the relevant factors * * *

and assigned the appropriate weight to each factor."

{¶ 26} Following review, we disagree with Father's argument and find the trial court did

not err by ordering that he pay Mother's attorney fees related to the child support arrears.

Though we recognize that Father paid his child support arrearage prior to trial and entered

into a joint stipulation, Mother was still forced to incur attorney fees based on his failure to

pay his child support obligation. The trial court's attorney fee award was not excessive and

was supported by the record. As a result, we find that Father has failed to show how the trial

court's decision amounted to an abuse of discretion and therefore his second assignment of

error is overruled.

{¶ 27} Father's Assignment of Error No. 3:

{¶ 28} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT WHEN [SIC] ORDERED THE EFFECTIVE DATE OF THE CHILD SUPPORT

MODIFICATION TO BE THE DATE ON WHICH DEFENDANT-APPELE'S [sic] MOTION TO

MODIFY CHILD SUPPORT WAS FILED.

{¶ 29} In his third assignment of error, Father alleges the trial court erred by ordering

the effective date of the child support modification as the date on which Mother moved to

modify child support. On appeal, Father argues that Mother's pursuit of the child support

modification is "inexorbly linked" to her pursuit of a change in parenting time, so the effective

date of the child support obligation should be the same as the date of the new parenting

schedule.

1. As will be addressed later, the trial court also awarded Mother $235.00 attorney fees related to the
nonpayment of extracurricular activity expenses.
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{¶ 30} Generally, because of the time it takes to modify child support orders, a

modification order may be made retroactive to the date the motion was filed "unless special

circumstances dictate otherwise." Kauza v. Kauza, 12th Dist. Clermont No. CA2008-02-014,

2008-Ohio-5668, ¶ 21. The determination of whether to make a child support modification

order retroactive is within the discretion of the trial court and will not be reversed on appeal

absent a showing of an abuse of discretion. Winn v. Wilson, 12th Dist. Butler No. CA2017-

04-052, 2018-Ohio-1010, ¶ 39.

{¶ 31} We find the trial court did not abuse its discretion by ordering the child support

payments effective as of the date of Mother's filing. As noted, the trial court was following the

general rule that is only altered under "special circumstances." In this case, the trial court

appropriately considered whether there were "special circumstances" to justify an alternate

effective date but concluded that such circumstances did not exist based on the record of the

case, the parties' agreement, and the relevant case law. In so doing, the trial court noted

that, even though Mother filed her motion to modify child support along with parenting

motions, the parties stipulated that the agreement was not tied to the parenting orders, but

rather a change in circumstances. As a result, we find the trial court did not abuse its

discretion and overrule Father's third assignment of error.

{¶ 32} Mother's Cross-Assignment of Error No. 1:

{¶ 33} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FAILING TO

DEEM ADMITTED THE SUBJECT MATTER OF PLAINTIFF'S REQUESTS FOR

ADMISSION.

{¶ 34} In her first cross-assignment of error, Mother alleges the trial court erred and

abused its discretion by failing to give credit to the request for admission after the request

went unanswered. We disagree.

{¶ 35} Civ.R. 36 governs requests for admissions. Specifically, pursuant to Civ.R.
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36(A)(1), "[t]he matter is admitted unless, within a period designated in the request, not less

than twenty-eight days after service of the request or within such shorter or longer time as the

court may allow, the party to whom the request is directed serves upon the party requesting

the admission a written answer or objection addressed to the matter, signed by the party or

by the party's attorney." As this court has stated previously, "[w]hen a party fails to timely

respond to a request for admissions, the admissions become facts of record, which the court

must recognize." January Invests., L.L.C. v. Ingram, 12th Dist. Warren No. CA2009-09-127,

2010-Ohio-1937, ¶ 17. However, this court has also determined that "[a] trial court may

permit the withdrawal or amendment even if the admission is the result of a party's untimely

failure to respond." Fifth Third Bank v. Meadow Park Plaza, L.L.C., 12th Dist. Clinton No.

CA2015-07-012, 2016-Ohio-753, ¶ 27. This is because Civ.R. 36 "emphasizes the

importance of having the action resolved on the merits, while at the same time assuring each

party that justified reliance on an admission in preparation for trial will not operate to his

prejudice." Id.

{¶ 36} Mother argues the trial court failed to account for the following request for

admission that went unanswered:

9. Admit or Deny: Jody has notified me of "co-pays, deductible
costs required under the health insurance policy and all other
uncovered health care expenses" for the children in the past
three years and I have failed to pay such expenses.

{¶ 37} It is undisputed that Father failed to timely respond. Mother argues that the

deemed admission conflicts with the following finding, which resulted in the denial of

$4,553.03 in uncovered medical expenses and additional attorney fees:

While Mother claims she complied with all billing requirements,
there is scant evidence in the record to support her claims.
Under the circumstances, the court is unable to find that Mother
achieved the requisite quantum of proof for this court to find
Father in contempt on this issue.

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As a result, Mother claims the trial court's finding of fact "directly contradicts admission

number 9."

{¶ 38} However, following review, we find Mother's argument to be unpersuasive, as

the admission does not contradict the trial court's finding. Pursuant to the terms of the

parties' separation agreement, there was a detailed procedure for reimbursement of

uncovered medical expenses pursuant to which Mother failed to establish that she is entitled

to the additional sum. As included in the separation agreement:

The parties shall provide each other with a copy of all health care
bills for the minor child(ren) on a quarterly basis and a summary
of all amounts paid by either party. The summary shall include
an offset against all cash medical support received. The
documentation of health care expenses shall be provided on the
last day of the months of March, June, September, and
December. Payment/reimbursement for all health care expenses
shall be made within thirty (30) days. Absent extraordinary
circumstances, motions for payment of health care bills must be
made within one (1) year of the date the bills were incurred.

{¶ 39} Thus, whether Mother notified Father of the relevant uncovered medical

expenses is not dispositive of the issue of whether Mother complied with the procedure

required under the separation agreement. The deemed admission in this instance only

accounts for a portion of what the parties agreed upon in the separation agreement. As a

result, we do not find that Mother established her claim for the additional unpaid amount even

considering the related admission. Therefore, Mother's first cross-assignment of error is

overruled.

{¶ 40} Mother's Cross-Assignment of Error No. 2:

{¶ 41} THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO FIND

DEFENDANT IN CONTEMPT FOR HIS FAILURE TO PAY UNCOVERED MEDICAL

EXPENSES.

{¶ 42} In her second cross-assignment of error, Mother argues the trial court abused

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its discretion by failing to find Father in contempt for his failure to pay uncovered medical

expenses. In so doing, Mother cites testimony "concerning the reasonable nature and extent

of the expenses, [Mother's] detailed testimony concerning the recurring email notice, deemed

admission number 9, and the Court's acceptance of the justifiably-delayed filing."

{¶ 43} Contrary to Mother's argument otherwise, we agree with the trial court that the

separation agreement included a detailed procedure for obtaining reimbursement of

uncovered medical expenses. For reasons addressed above, "deemed admission 9" was

insufficient to establish that Mother was entitled to the additional uncovered medical

expenses. Furthermore, we agree with the trial court that there is limited evidence to support

her claims that she complied with the billing requirements. As Father presented evidence to

the contrary, we defer to the credibility determinations made by the trial court. See Conrad v.

City of Oxford, 12th Dist. Butler Nos. CA2016-05-103 and CA2016-06-104, 2017-Ohio-9089,

20 ("An appeals court is not a finder of fact"). Therefore, we find Mother's second cross-

assignment of error is without merit and is hereby overruled.

{¶ 44} Mother's Cross-Assignment of Error No. 3:

{¶ 45} THE TRIAL COURT'S TRIVIAL AWARD OF ATTORNEY FEES IS

UNREASONABLE, ARBITRARY AND UNCONSCIONABLE AND AMOUNTS TO AN ABUSE

OF DISCRETION.

{¶ 46} In her third cross-assignment of error, Mother argues the trial court abused its

discretion by awarding only $797.50 in attorney fees when she actually incurred $9,192.88 in

attorney fees and costs.

{¶ 47} An award of attorney fees is within the sound discretion of the trial court.

Reynolds-Cornett v. Reynolds, 12th Dist. Butler No. CA2013-09-175, 2014-Ohio-2893, ¶ 28.

A trial court's decision to award attorney fees will be reversed only if it amounts to an abuse

of discretion. Id.
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{¶ 48} Pursuant to R.C. 3105.73(B), "[i]n any post-decree motion or proceeding that

arises out of an action for * * * dissolution * * * the 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' income,

the conduct of the parties, and any other relevant factors the court deems appropriate, but it

may not consider the parties' assets." R.C. 3105.73(B); Tedrick v. Tedrick, 12th Dist.

Clermont No. CA2015-07-065, 2016-Ohio-1488, ¶ 32.

{¶ 49} In the present case, the trial court specifically addressed each finding of

contempt and issued attorney fees substantiated on each finding. We have thoroughly

reviewed the record and find the trial court's decision was supported by the record and was

not an abuse of discretion. Though Mother may have expended considerably more money

on attorney fees than was awarded by the trial court, there were multiple issues that were

litigated between the parties, only some of which Mother was able to successfully prove. The

trial court's decision awarding attorney fees to Mother does not amount to an abuse of

discretion. As a result, we overrule Mother's third cross-assignment of error.

{¶ 50} Judgment affirmed.

S. POWELL, P.J., and HENDRICKSON, J., concur.

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