Swanson v. Swanson

• Citation: 2 O.O.3d 65,48 Ohio App.2d 85,355 N.E.2d 894
• Parties: , 2 O.O.3d 65 SWANSON, Appellant, v. SWANSON, Appellee. *
• Decision Date: 22 January 1976
• Court: United States Court of Appeals (Ohio)

Page 85

48 Ohio App.2d 85

355 N.E.2d 894, 2 O.O.3d 65

SWANSON, Appellant, v. SWANSON, Appellee. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan 22, 1976.

Syllabus by the Court

1. Where there is a conflict in the evidence which would permit reasonable minds to reach different conclusions upon issues of fact, the decision of the trier of fact must be affirmed.

2. In a divorce proceeding the trial court has the inherent authority to award reasonable attorney fees as alimony. The exercise of this authority is committed to the sound discretion of the trial court.

3. In determining an award of attorney fees as alimony, the time and labor of the attorney for the prevailing party is only one of the many factors to be given donsideration. Where the record below discloses that alimony awarded as attorney fees by the trial court was determined solely by multiplying the number of hours worked by the minimum hourly fee established by the Bar Association, such an award constitutes prejudicial error which requires reversal.

Richard M. Harmody, Cleveland, for appellant.

John D. Cannell, Cleveland, for appellee.

JACKSON, Judge.

This action was commenced on April 24, 1972, with the filing of appellant's complaint for divorce. Throughout the next two years numerous pleadings were filed and several hearings were had upon various matters in issue. Ultimately, after the appellant's complaint had been withdrawn, a cross-complaint for divorce filed by the appellee was granted and final judgment was entered on May 30, 1974.

By that judgment a document-whose purpose and effect was disputed-was held to be an enforceable separation agreement and incorporated into the judgment entry; and the appellant was ordered, inter alia, to pay the appellee additional alimony for attorney's fees totaling $12,380.40. From that final order apfpellant has assigned five errors.

I.

The appellant, seeking the reversal of that portion of the May 30, 1974, judgment in which the court incorporated and adopted as part of its entry the alleged separation agreement, has assigned the following as error:

'2. A unilateral contract does not come into existence until one party to it has done all that is necessary on his part; it is performance by one party which makes obligatory the promise of the other.'

This assignment of error is without merit and is hereby overruled. An examination of the record below indicates that in a hearing commencing May 21, 1973, and ending May 29, 1973, evidence was presented upon the nature and effect of the purported separation agreement. The appellant, while admitting he ultimately signed the document entitled 'Separation Agreement', presented testimony which, if believed by the trier of fact, would indicate that while negotiations took place, no settlement was effected. The appellee and her attorney contradicted this testimony and presented evidence which, if believed, would establish that an oral settlement was made between the parties and that this settlement was subsequently reduced to writing and signed by both the parties.

[1,2] After considering the disputed evidence, the trial court found for the appellee, concluding that there had been an oral settlement agreement and that such agreement had been reduced to writing and executed by both the parties. In light of the conflict of evidence which would allow reasonable minds to reach different conclusions upon the issues of fact, the decision of the trial court must be affirmed. E. g., Pokorny v. Local 310 (1973), 35 Ohio App.2d 178, 300 N.E.2d 464, rev'd on other grounds (1974), 38 Ohio St.2d 177, 311 N.E.2d 866.

Nor can appellant prevail upon alleged errors of law. Even if the oral separation agreement itself could not be proved because of the statute of frauds, the document entitled 'Separation Agreement', which was signed by both parties, would constitute a sufficient note or memorandum to allow proof of the original agreement under R.C. 1335.05. Similarly, even if the appellant were correct in arguing that the signed separation agreement was unenforceable for want of delivery, this would not affect the validity of the previous oral agreement, nor would it preclude the use of thd document as a memorandum under the statute of frauds.

Finally, it must be noted that the settlement is not void for want of mutuality. Even if that contractual concept were dispositive of the issue before this court, it is apparent that here, as in every settflement, there is in fact an exchange of mutual benefit. For his part, appellant has agreed to meet the terms set forth in the agreement. At the same time appellee has agreed to give up requests for even greater benefits which, though ultimately might not be granted to her, are nevertheless her legal right to pursue.

II.

With respect to the enforceability of the separation agreement, the appellant has also made the following assignment of error:

'3. A wife may elect to rescind a separation agreement when the husband breaches or repudiates it-if she does so and seeks other relief, the agreement is at an end.'

The initial page of the separation agreement indicated that one of the reasons for its execution was 'the mutual desire of the parties that a full and final settlement of all their property rights, interests and claims be had, settled and determined by them in this Agreement * * *.' (Emphasis added.) Pursuant to that intent, Item One, 'Mutual Release', at page two of the agreement provides that:

'* * * each party hereby waives relinquishes and surrenders all claims or rights against the other for support and maintenance or otherwise except as hereinafter provided * * *.'

From a reading of these provisions it becomes apparent, especially in light of this court's decision in Rahm v. Rahm (1974), 39 Ohio App.2d 74, 315 N.E.2d 495, that by the settlement agreement appellee released appellant from all obligations of support and maintenance except those specifically provided for in the separation agreement. This included not only those amounts to which she had a claim, but also amounts-such as those in arrearage or reduced to judgment-to which she had a right. Thus, the trial court erred when, in addition to entering judgment for the appellee and adopting the separation agreement, it granted judgment for appellee in the sum of $5,300, representing alimony arrearages accrued prior to the separation agreement. ¹

Accordingly, we reverse that portion of the judgment.

But appellant argues that since judgment under existing court orders and judgment under the separation agreement were 'inconsistent' remedies, the appellee's attempt to enforce the former constituted an election not to enforce the latter. The particular facts of this case indicate that both the appellee and the court were under the misconception that the pre-separation agreement orders were unaffected by the separation agreement and that appellee therefore could consistently attempt to enforce both those court orders and the separation agreement. In spite of our decision herein that this was not the case, we nevertheless find that there is no evidence in the record to indicate that the appellee either elected not to enforce the separation agreement or that she acquiesced in appellant's repudiation of the same.

III.

Appellant's fourth and first assignments of error are as follows:

' 4. A court in awarding alimony must look at the entire picture of the marriage and give particular attention to the property of the parties and the earning capacity of either.'

'1. An award of attorney fees in a marital action approximating 37% of the total assets involved is excessive and arbitary.'

Under R.C. 3105.18 and Civil Rule 75(N) the trial court is specifically authorized to award alimony to either party in a divorce proceeding. Such alimony may include an allowance for reasonable attorney fees. E. g., Gage v. Gage (1956), 165 Ohio St. 462, 136 N.E.2d 56; Stuart v. Stuart (1944), 144 Ohio St. 289, 58 N.E.2d 656.

Both the question of whether alimony should be awarded and, if it is to be awarded, the amount of alimony to be granted are both committed to the sound discretion of the trial court. E. g., Lykins v. Lykins (1964), 93 Ohio Law Abs. 385, 386; Bryant v. Bryant (1949), 56 Ohio Law Abs. 107, 109, 91 N.E.2d 275, quoting Rovder v. Rovder (1946), 50 Ohio Law Abs. 171, 174, 78 N.E.2d 422.

In making an award of attorney fees as alimony, consideration must be given to the reasonableness of the attorney fees and to the special criteria used in the granting of an alimony award. See generally annotation 57 A.L.R.3d 475.

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. E. g., Dennison v. Dennison (1956), 165 Ohio St. 146, 134 N.E.2d 574.

A.

Initially, reference shoud be made to DR 2-106(B), Code of Professional Responsibility (1970), 23 Ohio St.2d, which offers the following guidelines for determining the reasonableness of a fee:

'(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.

'(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

'(3) The fee customarily charged in the locality for similar legal services.

'(4) The amount involved and the results obtained.

'(5) The time limitations imposed by the client or by the circumstances.

'(6) The nature and length of the professional relationship with the client.

'(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

'(8) Whether the fee is fixed or contingent.'

In the instant case attorney fees were awarded in two distinct parts: an award of $3,600 for fees prior to the separation...