Zerbe v. Zerve, 2005 Ohio 1180 (OH 3/18/2005)
| Decision Date | 18 March 2005 |
| Docket Number | Appeal No. C-040035.,Appeal No. C-040036. |
| Citation | 2005 Ohio 1180 |
| Parties | Sandra F. Zerbe, Plaintiff-Appellee/Cross-Appellant, v. John J. Zerbe, Defendant-Appellant/Cross-Appellee. |
| Court | Ohio Supreme Court |
Randal S. Bloch, Scott H. Kravetz and John E. Stillpass, for Plaintiff-Appellee/Cross-Appellant.
Croswell & Adams Co., L.P.A., Gregory A. Adams and Julia A. Sears, for Defendant-Appellant/Cross-Appellee.
{¶1} Plaintiff-appellee/cross-appellant, Sandra F. Zerbe, and defendantappellant/cross-appellee, John J. Zerbe, both appeal from a divorce decree ending the parties' marriage and dividing their property. The parties raise numerous issues in their six assignments of error, which we address out of order.
{¶2} In his first assignment of error, John contends that the trial court erred in ordering him to pay Sandra $50,000 in attorney fees. He argues that the evidence did not support an award of attorney fees. He also argues that the court should have conducted a hearing on the reasonableness of the fees charged before making an award of attorney fees. Because the court should have determined the reasonableness of the amount of attorney fees, we find this assignment of error to be well taken.
{¶3} The court may order one party to pay the other party's attorney fees if a statute authorizes the shifting of fees. Vance v. Roedersheimer, 64 Ohio St.3d 552, 556, 1992-Ohio-89, 597 N.E.2d 153; Gill v. Gill (Oct. 10, 1997), 1st Dist. No. C-960610. R.C. 3105.18(H) provides that a court may award fees in a divorce action if it determines that (1) the party paying the fees has the ability to pay, and (2) the other party would be prevented from fully litigating his or her rights without an award of attorney fees. An appellate court will not disturb an award of attorney fees absent an abuse of discretion. Sutphin v. Sutphin, 1st Dist. Nos. C-030747 and C-030773, 2004-Ohio-6844, ¶37; Berger v. Berger, 1st Dist. No. C-030631, 2004-Ohio-5614, ¶8.
{¶4} The evidence in this case showed that John is a medical doctor who earns substantial income, and he is able to pay the attorney fees. Sandra has been a stay-athome mother for the most of the parties' twenty-two-year marriage. She returned to college to earn a degree so that she may obtain employment. She had very little income with which to pay her own attorney fees, and she would not have been able to adequately protect her interests without an award of fees. Under the circumstances, the trial court's decision to award attorney fees to Sandra was not so arbitrary, unreasonable or unconscionable as to connote an abuse of discretion. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 218, 450 N.E.2d 1140; Sutphin, supra, at ¶38-39.
{¶5} While an award of attorney fees was appropriate, the court never appropriately determined the correct amount of fees to be awarded. A hearing on a request for attorney fees may not always be necessary. See Meyers v. Hot Bagels Factory, Inc. (1999), 131 Ohio App.3d 82, 102, 721 N.E.2d 1068; Fisher v. Fisher, 3rd Dist. No. 7-03-01, 2004-Ohio-290, ¶46; Cesa v. Cesa, 5th Dist. No. 01 CA 12, 2001-Ohio-1902; Wolk v. Wolk, 7th Dist. No. 98 CA 127, 2001-Ohio-3415. But, see, Local Rule 17.1 of the Hamilton County Domestic Relations Court. Nevertheless, at a minimum, the record must contain some evidence of the reasonableness of the fees. Whitaker v. Estate of Whitaker (1995), 105 Ohio App.3d 46, 56, 663 N.E.2d 681. The movant bears the burden to present evidence of the services performed and the reasonable value of those services. Wolk, supra.
{¶6} In determining the reasonableness of the fees, the court must consider the factors set forth in DR 2-106(B) of the Code of Professional Responsibility, as stated in Swanson v. Swanson (1976), 48 Ohio App.2d 85, 90, 355 N.E.2d 894. Whitaker, supra at 56-57, 663 N.E.2d 681; Farley v. Farley (1994), 97 Ohio App.3d 351, 356, 646 N.E.2d 875; Donese v. Donese (Sept. 29, 2000), 2nd Dist. No. 2000-CA-17. An award of attorney fees based on a mechanical formula of multiplying the number of hours spent by the hourly rate of counsel is deficient as a matter of law. Farley, supra, at 356, 646 N.E.2d 875; Swanson, supra, at 92, 355 N.E.2d 894.
{¶7} At a hearing on the property division, Sandra's counsel stated that the parties had discussed stipulating to the reasonableness of fees, but John's counsel would not stipulate. He did agree that Sandra's counsel could submit an affidavit regarding fees and that the matter would be discussed at a subsequent hearing. Sandra's counsel submitted a detailed affidavit setting forth the hours worked and the fees charged per hour. She also described the issues involved and her qualifications. Ultimately, the total fees charged were approximately $67,000. The issue of attorney fees was not raised at a subsequent hearing on property division.
{¶8} In his decision, the magistrate ordered John to pay Sandra $30,000 in attorney fees "as a fair and reasonable award." Following objections by both parties, the trial court ordered John to pay $50,000 toward Sandra's attorney fees, finding that $30,000 was inadequate given the amount of fees owed. The court went on to state that
{¶9} The record does not show that the court ever considered the Swanson factors. Its decision seems to have been based entirely on Sandra's need and John's ability to pay, which were not the only issues to be considered. Despite Sandra's claim to the contrary, John raised the issue on numerous occasions and properly objected to the amount of fees the magistrate's decision had ordered him to pay, as required by Civ.R. 53(E)(3). See State ex rel. Booher v. Honda of Amer. Mfg., Inc., 88 Ohio St.3d 52, 53-54, 2000-Ohio-269, 723 N.E.2d 571; Ayer v. Ayer (June 30, 2000), 1st Dist. No. C-990712.
{¶10} Under the circumstances, we hold that the trial court erred in awarding Sandra $50,000 in attorney fees. See Wolk, supra; Donese, supra. Consequently, we sustain John's first assignment of error. We reverse that part of the decree awarding Sandra attorney fees, and we remand the matter to the trial court to determine a reasonable fee award.
{¶11} The record shows that the magistrate originally recommended that John pay Sandra spousal support of $7,500 per month for two years, $6,000 per month for the subsequent two years, and $5,000 per month for a final two years. Following objections by both parties, the trial court found that "given the financial positions of each party, their respective earning potential, the duration of the marriage, Plaintiff's role as caregiver for the children, the need for Plaintiff to obtain an education, and the tax consequences, the spousal support award set by the Magistrate is insufficient as to amount and duration." It ordered John to pay Sandra spousal support of $9,000 per month for seven years.
{¶12} After the divorce decree was journalized, John filed a motion for a new trial on the issue of spousal support in which he argued that the award of spousal support was excessive in amount and duration, was not supported by the evidence, and was contrary to law. In support of that motion, he submitted the affidavit of a certified public accountant in which the accountant contended that in view of John's income, his payment of child support and tuition for the parties' children, and tax consequences the court had not previously considered, the award of spousal support in the decree constituted 49.37% of his net cash flow. Sandra filed a memorandum in opposition to John's motion. In support of her memorandum, she submitted the affidavit of a certified financial planner refuting the contentions raised in the affidavit of John's expert.
{¶13} The trial court granted John's motion for a new trial. It stated that "based on the analysis of the tax consequences and the resultant net, spendable dollars, the Court's Entry * * * and resultant Decree do not contain an equitable spousal support award." It further stated that "[g]iven the information supplied by Defendant in his motion and Plaintiff in her response, a new trial on the issue of spousal support is not required." The court then ordered John to pay Sandra spousal support of $7,500 per month for the first three years, and $6,500 per month for the next four years.
{¶14} Sandra raises procedural issues relating to the trial court's order granting John's motion for a new trial on spousal support. She contends in her first assignment of error that the trial court should not have granted John's motion for a new trial because he failed to raise adequate grounds to justify a new trial, because the court did not actually hold a new trial, and because the court did not adequately state its basis for ordering a new trial. This assignment of error is not well taken.
{¶15} Civ.R. 59(A) provides that "[a] new trial may be granted to all or any of the parties and on all or part of the issues" upon various grounds including "the judgment is not sustained by the weight of the evidence," "the judgment is contrary to law," or "error of law occurring at the trial and brought to the attention of the trial court by the party making the application." The rule also states that in addition to the specified grounds, the trial court, in its discretion, may grant a new trial "for good cause shown."
{¶16} Where the trial court is...
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