Coral E. Farley v. James P. Farley

• Decision Date: 29 September 1994
• Docket Number: 66455,94-LW-4341
• Parties: CORAL E. FARLEY, Plaintiff-Appellee v. JAMES P. FARLEY, Defendant-Appellant
• Court: Ohio Court of Appeals

CORAL E. FARLEY, Plaintiff-Appellee v. JAMES P. FARLEY, Defendant-Appellant

No. 66455.

94-LW-4341 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

September 29, 1994

Civil appeal from the Domestic Relations Division of the Common Pleas Court Case No. D-197371.

For Plaintiff-Appellee: JOYCE E. BARRETT, ESQ., 800 Standard Building, 1370 Ontario Street, Cleveland, Ohio 44113.

For Defendant-Appellant: JAMES M. WILSMAN, ESQ., Wilsman &amp Schoonover, 1608 Bond Court Building, 1300 East Ninth Street Cleveland, Ohio 44113 and CARL A. MURWAY, ESQ., MARY E STANLEY, ESQ., Kelly, McCann & Livingstone, 35th Floor, BP American Bldg., 200 Public Square, Cleveland, Ohio 44114-2302.

OPINION

PER CURIAM

This appeal was filed and briefed as an accelerated appeal pursuant to Local R. 25 of this court. Appellant James Farley timely appeals the decision of the trial court granting appellee Coral Farley's post divorce decree for attorney fees. In compliance with App.R. 11.1, it is the opinion of this court that appellant's arguments challenging the award of attorney fees have merit, and the judgment of the trial court is reversed.

This action involves an award of attorney fees to appellee for the services of her attorney after the parties' divorce. The parties were divorced on April 10, 1991. The trial court made equitable distribution of their marital property. Appellee was awarded a sustenance alimony of $1,500 per month for three years. Appellant was ordered to pay appellee's attorney fees in the amount of $27,000.

On April 19, 1991 appellee filed for additional attorney fees in the amount of $7,500. The trial court granted the motion, and appellant paid a total of $35,000 in attorney fees. Appellant filed an appeal challenging the extra $7,500 award of attorney fees. This court in Farley v. Farley (Aug 12, 1993), Cuyahoga App. No. 62780, unreported (Farley I) reversed and remanded the trial court's award of an extra $7,500 in attorney fees as arbitrary and an abuse of discretion.

Appellee also appealed the trial court's judgment regarding the distribution of marital property and the award of spousal support. This court affirmed the trial court's judgment on all issues raised by appellee. Appellee filed a motion to this court for reconsideration which was also denied.

Appellee then appealed this court's decision to the Supreme Court of Ohio. The Supreme Court, finding no substantial constitutional issue, dismissed the appeal sua sponte.

Appellee filed yet another motion for appellate attorney fees. On September 29, 1993 the trial court conducted a hearing on the remand from this court and on appellee's motion for additional attorney fees. At the hearing appellee's counsel submitted an itemized statement of her fees. The statement shows 98.9 hours at $250 per hour for a total of $24,725 for appellee's counsel's fees. The statement also shows 6.7 hours of work at $150 per hour for services performed by James P. Reddy Jr. for a total of $1,005. Court costs amounted to $2,091.95 bringing the total attorney fees and costs to $27,821.95.

The trial court accepted the statement of fees as submitted in the total amount of $27,821.95 as reasonable. The court in its judgment entry stated as follows:

"The Court finds, based on the pleadings and the evidence, that Plaintiff has incurred reasonable attorney fees and expenses in the amount of $27,821.95 in prosecution of her appeal in this action as described in Swanson v. Swanson (1976), 48 Ohio App.2d 85. The Court further finds that Defendant has overpaid plaintiff in the amount of $7,500.00 for legal fees and expenses previously awarded.

"The Court further finds 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 of the fees and expenses.

"The Court further finds 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 Plaintiff's legal rights.

"The Court further finds that despite Defendant's arguments to the contrary, the motion for fees filed by Plaintiff combined with the evidence and testimony submitted at the hearing is legally sufficient to support an award of fees and expenses. The earlier Farley decision, CA#62780, unlike the instant case, dealt with a situation where no hearing was conducted. As such, the prior Farley case is distinguished from the instant, situation where evidence was presented at the hearing establishing the Plaintiff's costs and fees were reasonable and awardable pursuant to Swanson.

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff is awarded her attorney fees in the amount of $16,867.22 for which judgment is rendered and execution shall issue.

"The award of fees made above constitutes a setoff of the previous overpayment, then an apportionment of the total fee according to the percentage of each party's income to the combined total."

The trial court's award of $24,367.22 out of $27,821.95 in attorney fees to appellee is replete with legal infirmities due to that court's inability to conduct proper review of the evidence submitted in support of the award. We find no evidence to support the trial court's determination that appellant is more able to pay some of the attorney fees than appellee. 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. This court citing Lee v. Lee (1983), 10 Ohio App.3d 113, held in Wischmeier v. Wischmeier (June 18, 1987), Cuyahoga App. No. 52245, unreported, that the trial court must observe the existence of certain conditions before awarding attorney fees as alimony, to wit: the supported spouse must be found to need the assistance; the supporting spouse must be able to pay for such assistance; the appellate position taken by the supported spouse must be reasonably grounded; and the amount of attorney fees must be reasonable. See also R.C. 3105.18(H).

When a case has been remanded to the trial court in order to take additional evidence, and the proceedings are then commenced anew on the remanded issue, it is incumbent upon the parties to present all of their evidence. Hardesty v. Corrova (1986), 27 Ohio App.3d 332, 337. Where any essential element is not proven, then any judgment rendered notwithstanding such failure should be reversed. Sylvania Sav. Bank Co. v. Sunburst Car Care Centers, Inc. (1983), 12 Ohio App.3d 97, 99.

In this court's opinion in Farley I, we reasoned that the trial court failed to follow the mandates of R.C. 3105.18(H) and our decision in Oatey v. Oatey (Apr. 23, 1992), Cuyahoga App. No. 62086, unreported. We thus instructed in Farley I that

"*** an award of reasonable attorney fees must be predicated upon evidence submitted by the movant demonstrating the reasonable value of actual services performed and itemized to the party pursuant to Dom.Rel.Loc.R. 21(B)." Id. [Citing to Oatey v. Oatey (1992), 83 Ohio App.3d 251.]

"***

"There are several problems with this order; (1) the request for attorney fees contained none of the factual information required by Oatey, R.C. 3105.18(H) and Dom.Rel.Loc.R. 21(B); (2) the award was for future attorney fees; and (3) the award contains no factual findings by which it may be reviewed. As such it is arbitrary and an abuse of the trial court's discretion.

"***

"Mr. Farley's assignment of error is sustained. The trial court's judgment regarding attorney's fees in excess of $27,500 is reversed. The cause is remanded for the trial court to rule on Mrs. Farley's motion for attorney's fees of $35,000 in accordance with Oatey, R.C. -3105.18 and Dom.Rel.Loc.R. 21(B)."

Following our remand, however, plaintiff's counsel presented evidence concerning her client's award of marital assets and her current expenses, but counsel presented no evidence concerning her client's present income. Accordingly, our instruction that fees be determined with reference to Oatey, R.C. 3105.18 and Dom.Rel.Loc.R. 21(B) was not met since each of those rules mandates consideration of relative abilities to pay.

In Swanson v. Swanson (1976), 48 Ohio App.2d 85, 90, this court held that the trial court must consider many factors in determining a proper amount of attorney fees including reference to the provisions of DR2-106(B), Code of Professional Responsibility, for guidelines. In the instant case, counsel presented no evidence concerning the reasonableness of her fees, but simply presented her and her associate's hourly rates, and the number of hours expended.

Our review of the record reveals that appellee's counsel submitted a total of 98.9 hours which was multiplied by $250 per hour for Joyce Barrett and 6.7 hours which was multiplied by $150 per hour for James Reed Jr. This multiplication produced a sub total of $25,730, to which $2,091.95 for filing fees and transcript costs was added, bringing it to a total of $27,821.95, submitted and awarded. This procedure was condemned in Swanson, supra. This court held in Swanson that an award of attorney fees based on a mechanical formula of multiplying the number of hours expended by the hourly rate of counsel is deficient as a matter of law, because it is based on only one factor of consideration. The Swanson court continued:

"Indeed, it is recognized that domestic relations cases tend to consume a considerable amount of time and that counsel must generally realize that he cannot always expect full compensation for the time so consumed." (Citations omitted.) (Emphasis added.)

In the instant case the trial court awarded appellee the fees for all the hours her counse...