[Cite as Grosse v. Grosse,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

DINA M. GROSSE C.A. No. 27159

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE GERALD A. GROSSE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. 2010 11 3216

DECISION AND JOURNAL ENTRY

Dated: December 23, 2014

CARR, Presiding Judge.

{¶1} Appellant, Gerald Grosse, appeals an order of the Summit County Court of

Common Pleas, Domestic Relations Division, that awarded attorney fees to his former wife.

This Court affirms.

I.

{¶2} Gerald and Dina Grosse divorced in 2012 after a brief marriage. The matter was

heard by a magistrate, who recommended that the trial court order Mr. Grosse to pay Ms.

Grosse’s attorney fees in connection with the divorce. The trial court entered judgment to that

effect, but later sustained Mr. Grosse’s objection to the process through which the issue of

attorney fees had been decided. Because the trial court overruled the rest of Mr. Grosse’s

objections, the matter of attorney fees returned to the magistrate for consideration in accordance

with Loc.R. 25 of the Court of Common Pleas of Summit County, Domestic Relations Division. 2

On the date of the hearing before the magistrate, Ms. Grosse’s attorney filed an affidavit of

attorney’s fees and costs under Loc.R. 25.02.

{¶3} The magistrate recommended that Mr. Grosse pay $12,853.34 in attorney fees,

and the trial court entered judgment consistent with the magistrate’s decision. Mr. Grosse filed

objections, but the trial court overruled his objections and entered judgment awarding attorney

fees to Ms. Grosse. Mr. Grosse appealed. His two assignments of error are addressed in reverse

order.

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING [MS. GROSSE] TO SUBMIT INTO EVIDENCE AN AFFIDAVIT IN SUPPORT OF HER CLAIM FOR ATTORNEY FEES WHEN THE AFFIDAVIT WAS NOT SUBMITTED IN ACCORDANCE WITH THE PROVISIONS OF LOCAL RULE 12, WHICH REQUIRED THAT THE EXHIBIT BE PROVIDED AT LEAST 7 DAYS IN ADVANCE OF THE HEARING.

{¶4} Ms. Grosse’s second assignment of error is that the trial court erred by

considering the affidavit of attorney’s fees and expenses filed by Ms. Grosse before the hearing.

We disagree.

{¶5} Loc.R. 12.01(C) of the Summit County Court of Common Pleas, Domestic

Relations Division, governs the process for timely submitting exhibits. The Rule provides:

Unless otherwise approved by the court not less than seven days prior to the trial or evidentiary hearing, the parties shall submit to the court and the opposing party copies of all documents or other exhibits to be introduced at the trial or evidentiary hearing. At the trial or evidentiary hearing, the court will not admit any exhibits not timely submitted, except for good cause shown.

An affidavit of attorney’s fees and costs, on the other hand, is governed by Loc.R. 25.02 of the

Summit County Court of Common Pleas, Domestic Relations Division, which requires that “[a]t 3

a hearing on a request for attorney’s fees, either party shall present evidence or stipulations

sufficient for the court to make a decision under statutory guidelines.” The purpose of the

affidavit is to assist the trial court in determining the reasonableness of the fees that are

requested, and expert testimony in that regard is not required. See Loc.R. 25.04(B) of the

Summit County Court of Common Pleas, Domestic Relations Division.

{¶6} Ms. Grosse’s attorney filed an affidavit of attorney’s fees and costs, as

contemplated by Loc.R. 25.02, on the date of the hearing. The affidavit set forth counsel’s work

on the matter and incorporated counsel’s billing statements, and counsel represented that he was

prepared to testify about the substance of the affidavit if required. As such, it is in the nature of

testimony rather than an exhibit, and it is questionable whether Loc.R. 12.01 applies in this

instance. In addition, counsel for Ms. Grosse stated on the record that he had reviewed the

affidavit with Mr. Grosse’s attorney and that upon that review, the amount of fees requested

should be reduced by $1,200 to reflect fees already paid by Mr. Grosse. Counsel for Mr. Grosse

objected to the use of the affidavit under Loc.R. 12.01, but he did not request a continuance or

request that the trial court require Ms. Grosse’s attorney to testify in lieu of the affidavit. With

respect to the substance of the affidavit, Mr. Grosse’s attorney reiterated his position that the

parties should each be responsible for their own fees based on their respective circumstances at

the time of the divorce. He agreed, however, with the representations made by Ms. Grosse’s

attorney regarding the amount of her legal fees. In other words, although Mr. Grosse maintained

his objection to an award of attorney fees in general, he did not dispute the information set forth

in the affidavit of fees and expenses, and the trial court considered the matter on that basis.

{¶7} Because the affidavit of fees and expenses is more akin to testimony than an

exhibit, it does not fall under the purview of Loc.R. 12.01. Regardless, counsel for Mr. Grosse 4

neither requested a continuance nor asked the trial court to require Ms. Grosse’s attorney to

testify, and he did not challenge the substance of the affidavit. Mr. Grosse’s second assignment

of error is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN IT ORDERED [MR. GROSSE] TO PAY ALL OF [MS. GROSSE’S] ATTORNEY FEES AND EXPENSES IN THE AMOUNT OF [$12,853.34].

{¶8} Mr. Grosse’s first assignment of error reiterates his argument that the trial court

should not have considered the affidavit of fees and expenses and argues that the trial court

abused its discretion by ordering him to pay all of Ms. Grosse’s attorney fees. We disagree.

{¶9} Attorney fees in connection with a divorce may be awarded under R.C.

3105.73(A), which provides:

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.

See also Loc.R. 25.04(A) of the Summit County Court of Common Pleas, Domestic Relations

Division. “Because a court addresses an award of attorney fees through equitable considerations,

a trial court properly can consider the entire spectrum of a party’s actions, so long as those

actions impinge upon the course of the litigation.” Padgett v. Padgett, 10th Dist. Franklin No.

08AP-269,

. A trial court has broad discretion in considering an award of

attorney fees, and an award will only be reversed upon an abuse of the trial court’s discretion.

Guziak v. Guziak,

(9th Dist. 1992). 5

{¶10} Ms. Grosse filed an affidavit of fees and expenses that set forth her total amount

of attorney fees minus $1,800 that Mr. Grosse had already paid in connection with contempt.

Counsel for the parties agreed on the record that an additional $1,200 should be subtracted.

Although Mr. Grosse objected to the magistrate’s consideration of the affidavit on procedural

grounds, he neither objected to the amount and reasonableness of the fees set forth therein nor

offered any evidence to contradict the affidavit. Instead, the sum and substance of his argument

before the magistrate related to whether attorney fees should be awarded at all.

{¶11} In this respect, the trial court did not abuse its discretion. The record indicates

that although there was not a disparity in the parties’ incomes such that spousal support was

warranted, Ms. Grosse alleged financial misconduct on the part of Mr. Grosse during the

marriage. Specifically, she alleged that Mr. Grosse – who spent a significant portion of their

short marriage incarcerated – used his marital income to support a mistress in another home in

Medina County. During the course of the divorce litigation, the trial court held Mr. Grosse in

contempt for failure to provide discovery on one of several motions that Ms. Grosse filed to that

effect. This Court cannot conclude that it was an abuse of discretion for the trial court to

conclude that an attorney fee award was equitable under these circumstances.

{¶12} Mr. Grosse’s first assignment of error is overruled.

III.

{¶13} Mr. Grosse’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, is affirmed.

Judgment affirmed. 6

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

MOORE, J. WHITMORE, J. CONCUR.

APPEARANCES:

KENNETH R. HURLEY, Attorney at Law, for Appellant.

DEAN S. HOOVER, Attorney at Law, for Appellee.