[Cite as Lepowsky v. Lepowsky,

.] STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

ELAINE LEPOWSKY ) CASE NOS.

)

PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) CHARLES LEPOWSKY, JR. ) ) DEFENDANT-APPELLEE )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2002DR578

JUDGMENT: Affirmed in Part. Overruled in Part. Modified. Remanded.

APPEARANCES:

For Plaintiff-Appellant: Atty. Anne S. Magyaros 1188 Bell Road, Suite 105 Chagrin Falls, Ohio 44022

For Defendant-Appellee: Atty. Douglas A. King Hartford, Dickey & King Co., LPA 91 West Taggart Street P.O. Box 85 East Palestine, Ohio 44413

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro

Dated: March 31, 2010

WAITE, J. -2-

{¶1} Appellant, Elaine Lepowsky, appeals two separate decisions and

judgment entries of the Columbiana County Court of Common Pleas in this

consolidated appeal. Elaine challenges the trial court’s amended spousal support

award and the denial of her motion for attorneys’ fees and expenses. She also

appeals the denial of her subsequent motion to modify the amended spousal support

award.

{¶2} Because the trial court abused its discretion when amending the

spousal support award, we reverse the trial court’s determination and modify the

amount of the original spousal support award to $3,000 (plus a 2% administrative

fee), to be applied retroactively to the date of the divorce decree and to continue for

an unlimited duration, and order the trial court to calculate the arrearage and set a

monthly arrearage payment in accordance with R.C. 3123.21. Because the trial court

abused its discretion in part when it denied Elaine’s motion for appellate attorneys’

fees, we award attorneys’ fees in the amount of $6,889.19.

{¶3} Because we recognize that modification of trial court awards, while

authorized, is rare, we will discuss the history of this matter in some detail. This case

has had an unnecessarily long and tortured procedural past. The trial court issued a

divorce decree to the parties on July 12, 2004. At the time, the parties had been

married for 36 years. While Appellee, Charles Lepowsky, Jr., had maintained a

steady and good paying job, Elaine was a homemaker. As regards spousal support,

at the time of the divorce decree, Elaine was awarded support in the amount of -3-

$1,000.00 (plus a 2% administrative fee) for eighty-two months, and Charles was

ordered to pay Elaine’s COBRA premiums for twenty-four months. (7/12/04 J.E., pp.

10-11.) The trial court stated in the divorce decree that it would not retain jurisdiction

to modify the award. (7/12/04 J.E., p. 10.)

{¶4} The spousal support award was directly predicated on the trial court’s

assumption that Elaine would complete medical transcriptionist course work, which

she began after the parties separated, and the speculation that she would then

secure a full time position paying $8 to $10 per hour with medical insurance benefits.

(7/12/04 J.E., p. 9.)

{¶5} Elaine timely appealed the July 12, 2004 judgment entry, challenging

the trial court’s decision with respect to the division of marital property and the

amount and duration of spousal support. In an Opinion dated February 9, 2006, we

found no abuse of discretion with respect to the division of marital property. We did

reverse and remand the trial court’s determination as to spousal support specifically

to allow the trial court to, “indicate the basis for its award of spousal support in

sufficient detail to enable a reviewing court to determine whether the award is fair,

equitable and in accordance with the law.” Lepowsky v. Lepowsky, 7th Dist. No.

,

(“Lepowsky I”).

{¶6} Before remand, in Lepowsky I, we summarized the parties’ earning

histories and future earning abilities as follows: -4-

{¶7} “Elaine and Charles were married in 1968. The couple had four

children, who were all adults by the time Elaine filed her complaint for divorce in

September 2002. At the time of the divorce, Elaine was 55 and Charles was 54.

{¶8} “Elaine has little more than a high school education and was primarily a

homemaker during the couple’s marriage. She obtained a beautician’s license at one

time, but that license lapsed by the time she filed for divorce. At the time she filed for

divorce, she was earning some extra money by cleaning houses. While the case

was pending, Elaine took classes so she could be a medical transcriptionist, at which

she would make between eight and ten dollars per hour. Those classes were not

complete at the time of the final divorce hearing.

{¶9} “During the marriage, Charles worked for General Motors. Between

1999 and 2003, he never earned less than $83,900.00 and was projected to earn

around $101,000.00 in 2004.” Id. at ¶5-7.

{¶10} In reversing and remanding on the issue of spousal support, we

cautioned the trial court that it would be hard-pressed to demonstrate the equity of its

award based on the facts in the record:

{¶11} “Even if the trial court imputed income of $10.00 per hour to Elaine and

assumed that she worked forty hours per week, fifty-two weeks per year, then her

gross income would only be $20,800.00. Thus, after the trial court’s spousal support

award, Charles would earn approximately $88,760.00 per year, while Elaine would

only have about $33,040.00 per year. This is a fairly large discrepancy, especially

considering the length of the marriage and the disparity in future social security -5-

benefits. This discrepancy would be large even if the trial court had doubled the

spousal support award. In that case, Elaine would have about $45,280.00 per year,

while Charles would retain about $76,520.00.” (Emphasis added). Id. at ¶53.

{¶12} On remand, the trial court issued a terse three-page judgment entry

stating that the spousal support award was intended to provide supplemental income

to Elaine until she reached retirement. With fleeting reference to the statutory factors

listed in R.C. 3105.18, but no actual analysis of those factors, the trial court

concluded that Elaine “could enjoy a good standard of living” based upon her

(speculative) potential future income and the $1,000.00 per month in spousal

support. (4/27/06 J.E., p. 3.) Elaine appealed the amount and duration of the

spousal support award for a second time on May 3, 2006, and also appealed, for the

first time, the trial court’s decision not to retain jurisdiction over the spousal support

award.

{¶13} In an Opinion dated September 17, 2007, we reversed the trial court’s

decision as to spousal support for a second time. Because the trial court’s second

entry, on remand, fell far short of providing the necessary findings sought by this

Court, in our September, 2007 Opinion, we undertook a lengthy and detailed analysis

of the factors listed in R.C. 3105.18. Lepowsky v. Lepowsky, 7th Dist. No.

,

(“Lepowsky II”). We succinctly observed that “most, if not all” of the

factors enumerated in the spousal support statute favored Elaine. Id. at ¶44.

{¶14} Further, while we acknowledged that, “[e]qualization of income is not a

factor that must be considered or a goal in divorce cases,” we also recognized that, -6-

“the award must nonetheless be equitable in light of the factors in each case.”

(Internal citations omitted.) Id. at ¶43. “To be equitable, the parties should, if

feasible, enjoy a standard of living comparable to that enjoyed during the marriage,

adjusted by the factors set forth in R.C. 3105.18.” Id., citing Gallo v. Gallo, 11th Dist.

No.2000-L-208,

, at ¶40; Buckles v. Buckles (1988),

,

.

{¶15} After examining all of the relevant statutory factors, we reviewed

several cases from other districts involving marriages exceeding twenty years in

duration where the wife’s primary role was homemaking. In each of the cases, the

trial court awarded indefinite spousal support based upon the length of the marriage,

the age of the parties, and inability of the wife to develop the skills to attain

meaningful employment. Id. at ¶45-57.

{¶16} We ultimately concluded that the trial court’s assumptions about

Elaine’s future income were too speculative and were not supported by the record.

Id. at ¶59. In fact, we observed that the record actually established that Elaine

earned less than $5,000 per year cleaning houses at the time of trial. Id. at ¶60.

{¶17} We reiterated as we did in Lepowsky I, that, “[e]ven with the speculative

imputed income and the trial court’s award, the parties still have a great disparity in

income. Charles will earn about $88,760 after support payments and before taxes,

and Elaine will receive $12,240 per year in support plus her imputed income for a

total of about $33,040 per year after support and before taxes.” Id. at ¶82. -7-

{¶18} In our Opinion we recognized that, despite the trial court’s statement

that the spousal support award would provide an additional “safety net” to Elaine’s

retirement years, the payments as ordered would actually terminate when she was

62 years old, forcing her to take a permanently reduced rate of benefits. Id. at ¶64.

Thus, the consideration of the parties’ retirement benefits favored an increase in the

duration of the award. Id. at ¶63. Finally, we noted the fact that during the marriage

the Lepowskys enjoyed an upper-middle class lifestyle, which included a nice home,

nice clothes, new cars, and antiques. Id. at ¶15-16.

{¶19} Based on the length of the marriage and standard of living to which the

parties were accustomed and their relative earning capabilities, we held that the trial

court had abused its discretion in calculating both the amount and duration of

spousal support, and that a “longer, probably indefinite” spousal support award was

in order. Id. at ¶83. Additionally, after reviewing several other cases, we held that

the trial court should have retained jurisdiction over the spousal support award due to

the speculative nature of Elaine’s future income. Id. at ¶93.

{¶20} We specifically held that, “[o]n remand, the trial court should increase

its award in both amount and duration and attempt to allow Elaine to maintain a

standard of living that was established during the parties’ long marriage. The court

should also retain jurisdiction over the spousal support award.” (Emphasis added.)

Id. at ¶94.

{¶21} After the case was remanded to the trial court, on December 4, 2007,

Elaine filed a motion for attorney fees and expenses. Specifically, Elaine sought to -8-

enforce a provision of the divorce decree that required Charles to pay for the

preparation of Qualified Domestic Relations Orders (“QDROs”), to be reimbursed for

the trial transcripts that were prepared for the appeal in Lepowsky II, and for

attorneys fees incurred, “in pursuing the two appeals filed in connection with this

matter, and in attempting to gain [Charles’] compliance with the payment of

previously awarded expenses.” (12/4/07 Motion, p. 2.)

{¶22} With respect to the QDROs, Elaine submitted a detailed list of

expenses that included a $900.00 bill for the preparation of the QDROs from Pension

Evaluators (which included a $200 charge for expedited service) as well as charges

for copying, postage, and Federal Express fees. Elaine also sought $781.65 in

attorneys’ fees for time that her attorney spent compiling and providing information to

Pension Evaluators.

{¶23} After Elaine filed the motion, Charles forwarded $700 to Elaine. He

argued to the trial court that the charge for expedited service should be borne by

Elaine, because it was her counsel’s procrastination that created the need for

expedited service. Elaine’s counsel conceded that fact to this Court at oral argument.

Charles also argued that the divorce decree only required that he pay the bill from

Pension Evaluators, and did not contemplate that he reimburse Elaine for any fees

generated by her attorney during the preparation of the QDROs.

{¶24} With respect to the remainder of Elaine’s claims, Charles argued that

this Court had exclusive jurisdiction over costs awarded pursuant to App.R. 24(B). -9-

He also accused Elaine’s counsel of double-billing and failing to demonstrate that the

attorneys’ fees were reasonable.

{¶25} On February 1, 2008, the trial court retroactively increased the spousal

support award from $1,000 to $1,500 per month (with a 2% administrative fee), but

did not increase the duration of the award. According to the judgment entry, the

$21,000 arrearage, which had accumulated from August 1, 2004, to the date of the

February 1, 2008, judgment entry, was to be paid in monthly installments of $200

(with a 2% administrative fee).

{¶26} The trial court also summarily denied Elaine’s motion for attorneys’ fees

and expenses. The trial court stated that, “[t]here has been no evidence or affidavit

presented to the Court from someone other than Plaintiff’s counsel that such fees

and expenses are reasonable and it further appears to the Court the fees were

generated by appeals which Plaintiff decided to file. Both parties have incurred fees

and expenses in connection with the multiple appeals.” (Emphasis added.) (2/1/08

J.E., p. 7.)

{¶27} In addition to modestly increasing (with no analysis) the amount of the

spousal support award and denying the motion for attorneys’ fees and expenses, the

trial court made several pointed comments regarding our decision in Lepowsky II in

its February 1, 2008, judgment entry. The trial court began the entry by stating that it

found itself, “in the unenviable position of being directed by the Court of Appeals to

set an increased amount of spousal support based on the Appellate Court’s analysis

of the statutory factors which a trial court is to consider in awarding spousal support.” -10-

(2/1/08 J.E., p. 2.) The trial court also hastened to chide, not once but twice, that in

Lepowsky I we made no mention of the trial court’s decision not to retain jurisdiction

over the spousal support award. (2/1/08 J.E., pp. 2, 4.)

{¶28} Finally, the trial court inexplicably stated: “Rather than to make the

award on the same record which the trial court had before him, the Appellate Court

chose to remand the matter directing this Court to set a new amount based upon

their analysis of the statutory factors.” (2/1/08 J.E., p. 4.) Elaine appealed the

spousal support award for a third time on February 22, 2008.

{¶29} Prior to filing this third appeal, Elaine also filed a motion to modify

spousal support on February 8, 2008. At the hearing on the motion to modify, Elaine

testified that she had completed medical transcription training with the help of several

classmates, but had been unable to find a full-time position in the field. (5/14/08 Tr.,

p. 43.) She struggled through her classes and conceded that she did not have the

confidence required to perform the job. (5/14/08 Tr., p. 82.) She further testified that

she was reluctant to give up her regularly-scheduled cleaning jobs in order to accept

part time work as a transcriptionist. (5/14/08 Tr., pp. 67-68, 83, 93.)

{¶30} She currently charges $12 per hour for house cleaning and typically

works thirty hours a week. (5/14/08 Tr., pp. 64-65.) She accepted a part time job at

Rite Aid in 2007 but left after working approximately three months because she was

overwhelmed by the pressure. (5/14/08 Tr., p. 47.) She had applied for other jobs

but was always offered part time employment making $7.00 to $7.50 an hour. -11-

(5/14/08 Tr., p. 65.) Elaine was 58 years old on the date of the hearing. (5/14/08 Tr.,

p. 47.)

{¶31} In 2007, Elaine had business income of $9,588, coupled with $1,673 of

income from Rite Aid. (5/14/08 Tr., p. 44.) She twice attempted to acquire health

insurance after her COBRA coverage terminated, but she was rejected on both

occasions. (5/14/08 Tr., p. 48.) She currently suffers from osteopenia (lower than

normal peak bone mineral density), carpal tunnel syndrome, and osteoarthritis, but

was unable to afford routine medical exams in 2007. (5/14/08 Tr., pp. 48-50.)

{¶32} Due to her meager income, she has been forced to give up her land line

telephone, her internet service, and her dog. (5/14/08 Tr., pp. 51, 75.) Her

automobile is seven years old and her residence, which she purchased with the

proceeds of her divorce settlement, is in need of new siding and basement

waterproofing. (5/14/08 Tr., p. 61.)

{¶33} Charles testified that his gross income in 2006 was $105,818.61, and

$111,821.13 in 2007. (5/14/08 Tr., pp. 18-19.) A paystub from April of 2008

indicated that Charles received a weekly net pay of $955.19, for a fifty-five hour work

week.

{¶34} However, Charles testified that overtime at General Motors was “drying

up” based upon cost cutting efforts like outsourcing of work. (5/14/08 Tr., p. 22.) He

submitted a pay stub from May of 2008, which reflected a weekly net pay of $380.18

for a forty hour work week. (5/14/08 Tr., p. 34.) Charles currently pays -12-

approximately $400 per week in spousal support, which includes the $200 arrearage.

(5/14/08 Tr., p. 23.)

{¶35} Charles has a $77,000 mortgage in the form of a home equity loan on

his residence, for which he makes payments between $500 and $700 a month.

(5/14/08 Tr., p. 24.) He makes monthly car payments totaling $700 per month for two

vehicles, although he actually owns three vehicles. (5/14/08 Tr., p. 24.) He testified

that two of the vehicles have “blown motors.” (5/14/08 Tr., pp. 31-32.)

{¶36} According to his testimony, the loan for the 2002 GMC conversion van,

which is the only vehicle that operates, would be satisfied approximately four months

after the hearing, which would reduce his car payments by $279 per month. (5/14/08

Tr., p. 38.) The auto loans appear to be automatically withdrawn from his paycheck,

and must be added back into his net pay for the purpose of calculating his ability to

pay his monthly expenses. (Pl.’s Exh. 11, Def.’s Exh. A, attached to 5/14/08 hearing

transcript.)

{¶37} Charles stated that he supports his live-in girlfriend, who was recently

diagnosed with epilepsy and cannot work. (5/14/08 Tr., p. 37.) He insures her car, in

addition to insuring his own vehicles. (5/14/08 Tr., p. 38.) He spends $700 per

month on food. (5/14/08 Tr., p. 37.) Although he testified that his girlfriend would be

receiving food stamps in the near future, he was unwilling to project any reduction in

his monthly food expense because, “she doesn’t eat a lot.” (5/14/08 Tr., pp. 36-37.) -13-

{¶38} Charles went on three golfing trips in 2007, and, as of the May 14, 2008

hearing, had gone on one trip in 2008. He pays monthly dues in the amount of $130

to Salem Hills Golf and Country Club. (5/14/08 Tr., p. 35.)

{¶39} The parties’ income since the issuance of the divorce decree was

summarized at the hearing as follows:

Charles Elaine

2007 111,821 11,261 2006 105,818 12,744 2005 124,012 8,565 2004 103,665 5,734

(5/14/08 Tr., pp. 17-19, 44-46.) The 2007 figure includes Elaine’s wages from Rite

Aid as well as business income from her housekeeping business.

{¶40} In a judgment entry dated June 27, 2008, the trial court denied Elaine’s

motion to modify spousal support. The trial court premised its decision on a two and

one half page excerpt from Charles’ post hearing brief, which was made a part of the

judgment entry. (6/27/08 J.E., pp. 4-6.)

{¶41} The trial court concluded that Elaine had failed to show a substantial

change in circumstances, based upon the court’s observation that Charles’ income

had decreased since 2004, while Elaine’s income “has doubled.” (6/27/08 J.E., p. 5.)

The trial court also stated that, “[t]he fact that [Elaine] voluntarily chooses not to seek

employment in the field for which she is trained, should not be considered as a

change in circumstances such that [Charles’] spousal support obligation should be

increased. In fact, quite the opposite is true.” (6/27/08 J.E., p. 5.) -14-

{¶42} Finally, the trial court found, “[a]n additional change in circumstances is

that [Elaine] now owns an Eighty-Two Thousand Dollars ($82,000.00) home in the

City of Salem, upon which there is no mortgage.” (6/27/08 J.E., p. 6.)

{¶43} Elaine timely appealed the trial court’s denial of her motion to modify

spousal support. The appeal of her support order and her motion to modify were

consolidated. Appellant’s first three assignments of error challenge the trial court’s

spousal support award as it relates to our decision in Lepowsky II. They will be

addressed together for the purpose of judicial economy.

Assignment of Error I

{¶44} “THE TRIAL COURT ERRED IN FAILING TO INCREASE THE

AMOUNT OF THE SPOUSAL SUPPORT AWARD TO ALLOW APPELLANT TO

MAINTAIN THE STANDARD OF LIVING ESTABLISHED DURING THE PARTIES’

LONG TERM MARRIAGE AS PER THE SPECIFIC DIRECTIVES OF THIS

APPELLATE COURT IN ITS SEPTEMBER 17, 2008 REMAND ORDERS.”

Assignment of Error II

{¶45} “THE TRIAL COURT ERRED IN FAILING TO EXTEND THE

DURATION OF SPOUSAL SUPPORT AS DIRECTED BY THE APPELLATE COURT

IN ITS REMAND ORDERS.”

Assignment of Error III

{¶46} “THE TRIAL COURT ERRED IN ORDERING JUST $200/MONTH

ADDITIONAL SUPPORT TO PAY ON THE ACCUMULATED ARREARAGES.” -15-

{¶47} A trial court has broad discretion in determining spousal support, and a

support award should not be disturbed without finding that an abuse of discretion has

occurred. Wolfe v. Wolfe (1976),

,

. Thus, a

spousal support decision should be upheld unless the trial court’s attitude is arbitrary,

unconscionable, or unreasonable. Blakemore v. Blakemore (1983),

,

.

{¶48} In both of the previous appeals, we made it clear to the trial court that a

spousal support order, even in the amount of $2,000 per month, was inequitable in

this case based on the length of the marriage and Charles’ markedly superior earning

power. Moreover, in Lepowsky II, we concluded that a longer period of support, even

an award of unlimited duration, was appropriate in this case. Despite these

conclusions based on our review of this record, the trial court awarded $1,500 per

month to Elaine for the original eighty-two month period set in the divorce decree

following the second remand.

{¶49} We cannot but conclude, for a third time, that a spousal support award

that is less than $2,000 in this case is inequitable based upon the parties’ income

and earning power, and the duration of the marriage. The Supreme Court of Ohio

has recognized that, “[a]bsent extraordinary circumstances, * * * an inferior court has

no discretion to disregard the mandate of a superior court in a prior appeal in the

same case.” Nolan v. Nolan (1984),

,

, syllabus. The

trial court has committed an abuse of its discretion in this case. -16-

{¶50} The trial court, in addition to abusing its discretion in the support award

itself, also abused its discretion when it ordered payment of the arrearage. R.C.

3123.21(A) governs the calculation of arrearage payments and reads, in it entirety:

{¶51} “A withholding or deduction notice described in section 3121.03 of the

Revised Code or an order to collect current support due under a support order and

any arrearage owed by the obligor under a support order pertaining to the same child

or spouse shall be rebuttably presumed to provide that the arrearage amount

collected with each payment of current support equal at least twenty per cent of the

current support payment.”

{¶52} A trial court may deviate from the statutorily prescribed amount, and in

doing so, “may consider evidence of household expenditures, income variables,

extraordinary health care issues, and other reasons for a deviation from the twenty

per cent presumption.” R.C. 3123.21(B).

{¶53} Hence, the trial court’s order that Charles pay $200 per month instead

of $300 per month, 20% of the court ordered payment, with no explanation

whatsoever for the downward departure, was error. Notably, under the order made

following Lepowsky II, Charles would continue to make his $200 arrearage payments

for over five years after the $1,500 monthly spousal support payments had

terminated.

{¶54} We have twice remanded this case to the trial court to fashion an

equitable spousal support award and to explain such an award sufficiently for our

review. We are cognizant that a trial court is ordinarily in the best position to do so. -17-

However, in addition to the power to remand a matter to the trial court, Ohio

Appellate Rule 12 also authorizes us to modify a judgment of the trial court when

necessary. Rule 12(B) reads, in pertinent part:

{¶55} “When the court of appeals determines that the trial court committed

error prejudicial to the appellant and that the appellant is entitled to have judgment or

final order rendered in his favor as a matter of law, the court of appeals shall reverse

the judgment or final order of the trial court and render the judgment or final order

that the trial court should have rendered, or remand the cause to the court with

instructions to render such judgment or final order. In all other cases where the court

of appeals determines that the judgment or final order of the trial court should be

modified as a matter of law it shall enter its judgment accordingly.”

{¶56} It is with considerable reluctance that we employ our power under

App.R. 12 to modify the spousal support award in this case. However, based upon

the trial court’s apparent reluctance to follow our previous orders, as well as its

pointed language contained in the entry following our second remand, we can only

view this as an abdication of power on the part of the trial court. The complete futility

of remanding the spousal support issue to the trial court for yet a third time is obvious

by the trial court’s statements at the hearing on Elaine’s motion to modify spousal

support:

{¶57} “If the Court of Appeals disagrees with me -- and I’m talking to the

parties now in the case, that’s fine. There are three of them; one of me. So if they

disagree with me fine. But they are looking at the same record that I am looking at. -18-

So if they have some different opinion about what the spousal support should be,

they have the power to set it. I am sure counsel agrees with that. They chose not to

do that. They have chosen to bounce it back a couple of times, which disappoints

me. Not because they disagree with me, but because I know it’s time and expense

for everybody else in this case.

{¶58} “And I am doing the best I can do; I’m doing what I think is right based

on this record, but their job is to review my work.

{¶59} “So I just want you to understand, none of us in this room are

responsible for the fact that we’re back here again. It’s because they chose, the

Court of Appeals chose, to send it back here to continue this case at this level.

{¶60} “So, you know, we will do the best we can with what we have.” (5/14/08

Tr., pp. 11-12.)

{¶61} An appellate court has the authority to modify the decision of an inferior

court when the interests of justice and efficiency would unlikely be served by

remanding the case. App.R. 12(B); In re Testamentary Trust of Manning, 7th Dist.

No. 05 MA 2,

(modification of fiduciary fees was warranted

when inferior court refused to comply with appellate orders on remand causing

lengthy delays), citing Gockstetter v. Gockstetter June 23, 2000), 6th Dist. No. E-98-

078 (modifying monthly spousal support); Stychno v. Stychno (Aug. 14, 1998), 11th

Dist. Nos. 97-T-0003, 96-T-5620 (modifying division of marital estate and support

award in light of repeated remands). Based upon this authority, it is clear that this is

one of those rare cases where the interests of justice are better served by a -19-

modification of the trial court’s judgment, given the trial court’s disregard of the law of

the case, and the lengthy delays suffered by the parties as a result of repeated

litigation and review.

{¶62} By now, the record in this case is replete with evidence which allows us

to simply do as the trial court asks and fashion an order for the parties based on this

record. Based on Charles’ projected income of $101,000 in 2004, we find that a

retroactive spousal support award of $3,000 (plus a 2% administrative fee) is

equitable in this matter. Coupled with Elaine’s projected business income for 2004,

approximately $5,000, this award would have provided Elaine, as of the date of

divorce, an annual income of $41,000 and Charles would have had an annual

income of $65,000. Because of the length of the marriage and ages of the parties,

the spousal support award is to continue for an indefinite term, and the trial court will

retain jurisdiction over the matter.

{¶63} Of course, the substantial increase in the spousal support award, while

certainly supported in this record and long overdue, will create a substantial

arrearage, due to the length of time that has passed since the date of the original

divorce decree; forty-two months passed between the issuance of the divorce decree

and the trial court’s amended spousal support award following our decision in

Lepowsky II. If we assume April 1, 2010, as the date for the initial $3,000 spousal

support award, an additional twenty-six months will have passed between the

issuance of the trial court’s amended spousal support award and our decision in the

pending consolidated appeal, for a total of sixty-eight months. -20-

{¶64} Upon remand, we order the trial court to calculate the arrearage and set

a monthly arrearage payment in accordance with R.C. 3123.21.

{¶65} In sum, the trial court has twice abused its discretion in this case. Even

the amended spousal support award was $500 less than an amount we deemed

minimally inequitable in two previous Opinions. The arrearage based on this

inadequate award was calculated incorrectly pursuant to statute and there was no

explanation for the downward deviation. Further, the trial court wholly ignored our

directive in Lepowsky II to enter a longer, probably indefinite, term of spousal

support. Accordingly, Elaine’s first, second and third assignments of error are

sustained and we modify the award accordingly.

Assignment of Error IV

{¶66} “THE TRIAL COURT ERRED IN FAILING TO AWARD ATTORNEY’S

FEES AND EXPENSES.”

{¶67} R.C. 3105.73(A) reads, in its entirety:

{¶68} “In an action for divorce, dissolution, legal separation, or annulment of

marriage or an appeal of that action, a 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’ marital assets and income, any award of temporary spousal support, the

conduct of the parties, and any other relevant factors the court deems appropriate.”

{¶69} A decision to award attorneys’ fees is reviewed for an abuse of

discretion. Patino v. Foust, 8th Dist. No. 90475,

. The Supreme -21-

Court has repeatedly held the term abuse of discretion implies the court’s attitude is

unreasonable, arbitrary or unconscionable.

{¶70} The trial court gave two reasons for denying Elaine’s motion for

appellate attorneys’ fees. First, the court stated that Elaine did not provide an

affidavit of an outside expert (other than her own counsel) attesting that the fees she

sought were reasonable. The second and more troubling reason stated by the court

was that, “it further appears to the Court the fees were generated by appeals which

Plaintiff decided to file. Both parties have incurred fees and expenses in connection

with the multiple appeals.” (2/1/08 J.E., p. 7.)

{¶71} While it is true that litigants may provide the affidavit of an expert

attesting that the attorneys’ fees that are requested are reasonable, the trial court did

not cite any statute or caselaw, nor could we find any statute or caselaw, for the

proposition that such an affidavit is required. The request for fees was supported by

Elaine’s counsel’s affidavit. Charles provided absolutely no evidence challenging this

affidavit or the reasonableness of the attorneys’ fees, and, therefore, the only

evidence before the trial court was the uncontroverted affidavit of Elaine’s counsel.

{¶72} Of greater concern, is the trial court’s second reason for denying

Elaine’s motion. The court specifically denied fees because it was Elaine who filed

the appeals. This clearly constitutes an abuse of discretion. Of course, the trial court

may consider the parties’ conduct in awarding attorneys’ fees in a divorce case

pursuant to R.C. 3105.73(A). However, it is plain that neither of Elaine’s appeals -22-

were frivolous; both appeals were successful. Therefore, the trial court acted

unreasonably in denying her motion for attorneys’ fees for that stated reason, alone.

{¶73} Turning to the motion, with respect to Elaine’s claims for reimbursement

of attorneys’ fees for preparation of the QDROs, we find that the divorce decree

contemplated only reimbursement for the fees charged by Pension Evaluators.

Consequently, the denial of her motion for attorneys’ fees for the preparation of the

QDROs does not constitute reversible error. Furthermore, with respect to the fees for

expedited service, Elaine’s counsel conceded at oral argument that she was

responsible for the additional fees. Therefore, the trial court’s decision denying the

payment of the expedited fees does not constitute reversible error.

{¶74} The issue of reimbursement for the transcripts appears to be moot.

Charles’ attorney represented in his response brief to the supplement to the motion

for attorneys’ fees that he had directed Charles to reimburse Elaine for the transcript

fee. Elaine does not raise that issue on appeal.

{¶75} With respect to Elaine’s request for appellate attorneys’ fees, we have

reviewed the billing sheet attached to her motion and find that Charles is correct that

certain line items relate to the preparation of the QDROs rather than the two appeals

in this case. Deleting those fees which appear to relate to the preparation of the

QDROs, and considering the factors listed in R.C. 3105.73(A), we find that Elaine is

to be awarded attorneys’ fees in the amount of $6,889.19.

{¶76} While pursuing both appeals, Elaine was struggling to make ends meet

while Charles was still enjoying the benefits of an upper-middle class life style, -23-

vacationing and maintaining membership in a private golf club. Despite the fact that

the trial court twice ignored the Opinion of this Court that the minimum award that

would be equitable here was at least $2,000 per month, Charles apparently made no

effort to settle the matter consistent with our Opinion, choosing instead to force

Elaine to file a third and fourth appeal in this case, as well as forcing her to wait

another two years to receive an equitable spousal support award. Based upon

Charles’ income and his conduct, we find that Elaine’s motion for appellate attorneys’

fees should have been granted.

{¶77} Accordingly, Elaine’s fourth assignment of error is sustained in part,

with respect to the appellate attorneys’ fees, and overruled in part, with respect to the

QDRO attorneys’ fees and the charges for expedited service.

Assignment of Error V

{¶78} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT’S MOTION TO INCREASE SPOUSAL SUPPORT.”

{¶79} Because we sustain Elaine’s first three assignments of error, her fifth

assignment of error is moot.

{¶80} In summary, Elaine’s first, second, and third assignments of error are

sustained. Pursuant to App.R. 12, we hereby modify the second full paragraph on

page 10 of the divorce decree as follows:

{¶81} “The Court sets the spousal support award payable by Charles

Lepowsky, Jr. to Elaine Lepowsky in the amount of $3,060 (which includes a 2%

administrative fee) per month due on the first day of every calendar month with the -24-

first payment due August 1, 2004. The trial court reserves jurisdiction to make further

modifications of spousal support. It is ordered that the spousal support award herein

shall terminate on the first of the following events to occur: the death of either of the

parties hereto; the remarriage of the Wife; or her cohabitation with a non-relative

adult male.”

{¶82} In addition, we remand this matter to the trial court to calculate the

arrearage and to set a monthly arrearage payment in accordance with R.C. 3123.21.

{¶83} Elaine’s fourth assignment of error with respect to attorney fees is

sustained in part, and she is granted appellate attorneys’ fees in the amount of

$6,889.19. This assignment is also overruled in part, with respect to the amount of

attorneys’ fees sought due to the preparation of the QDROs and the bill for expedited

services. A judgment shall be entered against Charles Lepowsky, Jr. and in favor of

Elaine Lepowsky in the amount of $6,889.19 on this issue. Appellant’s fifth

assignment of error is moot.

Vukovich, P.J., concurs.

DeGenaro, J., concurs.