[Cite as Phelps v. Saffian,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106475

CHRISTINE PHELPS

PLAINTIFF-APPELLEE

vs.

MICHAEL SAFFIAN

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-08-322365

BEFORE: E.A. Gallagher, A.J., Stewart, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: October 25, 2018 ATTORNEYS FOR APPELLANT

Joyce E. Barrett James P. Reddy, Jr. 55 Public Square, Suite 1260 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Joseph G. Stafford Nicole A. Cruz Stafford Law Co., L.P.A. 55 Erieview Plaza, 5th Floor Cleveland, Ohio 44114

ALSO LISTED

GUARDIAN AD LITEM FOR R.S.

Leigh A. Hollingsworth P.O. Box 19040 Cleveland, Ohio 44119

ATTORNEY FOR CHILD SUPPORT ENFORCEMENT AGENCY

Michael C. O’Malley Cuyahoga County Prosecutor BY: Steven W. Ritz Assistant Prosecuting Attorney 9300 Qunicy Avenue, 4th Floor Cleveland, Ohio 44106

EILEEN A. GALLAGHER, A.J.:

{¶1} Defendant-appellant-father Michael Saffian (“father”) appeals from the trial court’s

order entered after remand in Phelps v. Saffian, 8th Dist. Cuyahoga No. 103549,

(“Phelps I”). In Phelps I, father and plaintiff-appellee-mother Christine Phelps (“mother”)

appealed from the trial court’s September 3, 2015 judgment entry ruling on various motions related to the parties’ efforts to modify father’s child support obligation. Father contends that

the trial court failed to correct errors this court ordered it to correct in Phelps I and abused its

discretion by: (1) “tripling” his child support obligation, (2) ordering his increased child support

obligation to be retroactive to April 2009, (3) failing to impute additional income to mother in

determining the amount of child support to be awarded and (4) failing to address the attorney fees

awarded to mother under R.C. 3105.73(B). He also contends that the trial court erred by

holding him in contempt for failing to comply with court orders requiring him to produce

financial documentation. For the reasons that follow, we affirm the trial court’s judgment in

part and reverse it in part. We remand the case for issuance of a new child support order in which

father’s modified child support obligation is imposed retroactive to August 17, 2011 and for

recalculation of child support arrearages consistent with this opinion.

Factual and Procedural Background

{¶2} Mother and father were married in October 2002. Their daughter was born in

July 2004. In December 2004, mother filed for divorce. At that time, mother and father

resided with their daughter in California. In November 2006, while the parties’ divorce was

pending, the California court entered an interim order, ordering father to pay $1,571 in monthly

child support to mother. That child support order was incorporated into the parties’ November

2008 divorce decree. In April 2009, after mother, father and the child had all moved to Ohio,

mother filed a motion to modify child support in the Cuyahoga County Court of Common Pleas,

Domestic Relations Division asserting that circumstances had changed due to changes in the

parties’ incomes and daycare and health insurance costs.1 In August 2009, father filed his own

motion to modify child support.2

1 In February 2009, mother filed a petition to register the California child support order. Although the filing was {¶3} On June 10, 2015, after six days of hearings extending from November 2013 to May

2014, the magistrate issued a decision granting mother’s motion to modify father’s child support

obligation and ordering immediate relief pursuant to Civ.R. 53(D)(4)(e)(ii). Both parties filed

objections to the magistrate’s decision and, on September 3, 2015, the trial court overruled the

parties’ objections and adopted the magistrate’s decision “in its entirety.” The trial court

entered a new child support order, ordering father to pay $4,350 in monthly child support

effective June 1, 2015. The trial court also modified father’s child support obligation

retroactively, ordering incremental increases in father’s monthly child support obligation as

follows:

• From February 5, 2009 through December 31, 2009, $3,249.57 per month,

• From January 1, 2010 through December 31, 2010, $3,911.37 per month,

• From January 1, 2011 through December 31, 2011, $3,990.67 per month,

• From January 1, 2012 through December 31, 2012, $4,290.04 per month,

• From January 1, 2013 through December 31, 2013, $4,349.54 per month and

• From January 1, 2014 forward, $4,350 per month.3

{¶4} The retroactive award resulted in child support arrearages of $191,558.74 as of May

31, 2015. The trial court ordered father to pay an additional $870 per month toward the child

captioned, “Plaintiff’s Petition to Register a Foreign Decree and for Enforcement and Modification of Terms of that Decree Governing Support,” at that time, mother requested only that the trial court “adopt” the California order and “take jurisdiction of the matter for modification and enforcement of support.”

2 In his motion to modify child support, father likewise asserted that a change in circumstances warranted modification of his monthly child support obligation but did not provide any explanation as to why modification of his child support obligation was warranted.

3 The child support amounts set forth herein do not include the 2 percent processing fee. support arrearages until they were paid in full and ordered that a withholding or deduction notice

be issued to father’s company, Anesthesia & Associates.

{¶5} The trial court also ordered father to pay 91 percent of the child’s uncovered medical

expenses and $38,855 towards mother’s attorney fees and litigation expenses pursuant to R.C.

3105.73(B). The trial court further found father to be in contempt of court due to his repeated

failures to comply with court orders to provide requested discovery. Under the trial court’s

order, the contempt could be purged by payment of $6,950 in attorney fees and $113.35 in

litigation expenses within 45 days of journalization of the court’s order.

{¶6} Both parties appealed to this court. On appeal, father claimed the amounts of child

support and attorney fees awarded mother were too high; mother claimed they were too low.4

Father also complained about delays in ruling on the parties’ motions, that the trial court erred in

ordering the modified child support retroactive to February 2009 and in failing to impute

additional income to mother (who worked only 20 hours per week as a physician assistant) based

on full-time employment. He also challenged the trial court’s failure to award him the

dependency exemption for the child and the trial court’s contempt finding.

{¶7} Mother complained that the trial court abused its discretion in failing to order father

to reimburse her for the child’s school transportation expenses, to pay additional sums towards

arrearages and in failing to allocate 100 percent of the costs of uncovered medical expenses to

father.

{¶8} On August 25, 2016, after considering the parties’ arguments and reviewing the

record, this court held that the trial court had erred (1) in failing to consider whether it should

4 Father argued at the hearing that there had been no change in circumstances and that modification of the child support order was not warranted. Mother requested that father’s child support obligation be increased to $10,000 per month. impute additional income to mother, (2) in holding father responsible for the child’s private

school tuition without considering that mother made the unilateral decision to send the child to

private school in violation of a retraining order, (3) by ordering the modified child support to be

retroactive to the date on which mother filed her motion to modify child support and (4) by

failing to designate which parent may claim the federal income tax dependency exemption for the

child. This court affirmed the trial court’s decision not to require father to pay for the child’s

school transportation expenses and remanded the case for recalculation of child support. Phelps

I at ¶ 3.

{¶9} This court declined to address the parties’ remaining assignments of error,

including the assignments of error relating to the attorney fee award, reasoning that these issues

were mooted given that the trial court would need to recalculate child support on remand.

Phelps I at ¶ 3, 63. This court indicated that the trial court was to issue a new ruling on the

motions to modify child support consistent with its opinion within 60 days of the date of its

decision. Phelps I at ¶ 68. Mother filed a motion for reconsideration and for en banc

consideration of the court’s decision. Both were denied.

{¶10} On August 30, 2016, father filed a combined motion with the trial court to: (1)

suspend the current support order, (2) suspend the current income source order on Anesthesia &

Associates, (3) instruct the Child Support Enforcement Agency to suspend collection and

disbursement of child support payments and (4) order mother to reimburse father for

overpayment of child support and attorney fees. Specifically, father sought to recover $54,735

for 15 months of “excess” child support payments and $38,855 in mother’s attorney fees he had

paid pursuant to the trial court’s original judgment entry. {¶11} In November 2016, father submitted a “proposed remand judgment entry” and filed a

motion requesting that the trial court adopt his proposed judgment entry, asserting that the 60-day

deadline that had been set in Phelps I for the trial court to issue a new ruling on the motions to

modify child support had passed. Mother opposed the motion.

{¶12} In December 2016, mother appealed this court’s decision in Phelps I to the Ohio

Supreme Court. That court declined to accept jurisdiction. Phelps v. Saffian,

,

,

(June 21, 2017).

{¶13} In October 2017, on remand, the trial court issued a new judgment entry. The

trial court found that, based on increases in the parties’ income, “a substantial, ‘significant’ and

‘material’ change in circumstances occurred” that warranted modification of the existing child

support order. The trial court once again ordered retroactive, incremental increases in father’s

child support obligation as follows:

• From April 2, 2009 through December 31, 2009, $3,250 per month,

• For 2010 and 2011, $3,900 per month and

• From January 1, 2012 forward, $4,350 per month.

The retroactive award resulted in child support arrearages of $182,028.44 as of May 31, 2015.

{¶14} Father appealed, raising the following seven assignments of error for review:

FIRST ASSIGNMENT OF ERROR The trial court erred and abused its discretion in failing to adhere to the mandate of the Eighth Appellate District in the prior appeal in Case No. CA-15-103549.

SECOND ASSIGNMENT OF ERROR The trial court erred and abused its discretion in overruling the appellant’s motion to adopt defendant’s proposed remand judgment entry filed on November 8, 2016.

THIRD ASSIGNMENT OF ERROR The trial court erred and abused its discretion in overruling the appellant’s motion to terminate child support and motion to suspend the current child support order, the current income source order upon Anesthesia & Associates, to instruct CSEA to suspend collection and disbursement of child support payments, and to order petitioner to reimburse defendant for overpayments of child support and attorney fees filed on August 30, 2016.

FOURTH ASSIGNMENT OF ERROR The trial court erred and abused its discretion in increasing appellant’s child support obligation.

FIFTH ASSIGNMENT OF ERROR The trial court erred and abused its discretion in making the increase in appellant’s child support obligation retroactive to more than six years prior to its increased order.

SIXTH ASSIGNMENT OF ERROR The trial court erred and abused its discretion in failing to impute income to the appellee.

SEVENTH ASSIGNMENT OF ERROR The trial court erred and abused its discretion in finding appellant in contempt of court and awarding appellee attorney fees.

{¶15} A number of father’s assignments of error overlap. For ease of discussion, we

address father’s assignments of error out of order and together where appropriate.

Law and Analysis

Modification of Father’s Child Support Obligation

{¶16} Father’s first, fourth, fifth and sixth assignments relate to the modification of his

child support obligation. In his first and sixth assignments of error, father argues that the trial

court ignored this court’s mandate in Phelps I and abused its discretion by refusing to impute

additional income to mother — representing the income she would have earned if she had been

employed full time as a physician assistant, rather than part time — when calculating the parties’

child support obligations. In his first and fourth assignments of error, father challenges the

amount of his modified child support obligation. In his first and fifth assignments of error, father contends that the trial court erred and abused its discretion in ordering his modified child

support obligation retroactive to April 2009.

{¶17} A trial court’s modification of a prior child support order is within its broad

discretion and will not be disturbed absent an abuse of discretion. Morrow v. Becker,

,

,

(“Matters involving child support are reviewed

under an abuse-of-discretion standard.”). A trial court abuses its discretion if its decision is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶18} Where, as here, the parents have a combined gross income exceeding $150,000, the

standard child support guidelines do not apply, and R.C. 3119.04 requires the court to determine

the amount of child support to be awarded on a case-by-case basis, taking into account “the needs

and the standard of living of the children who are the subject of the child support order and the

parents.” R.C. 3119.04(B); Phelps I at ¶ 15 (When the parties’ combined gross income exceeds

$150,000, child support must be determined in accordance with R.C. 3119.04, and the child

support guidelines set forth in R.C. 3119.02 do not apply except to “[set] a floor beneath which

support ordered under R.C. 3119.04(B) cannot fall.”), citing Siebert v. Tavarez, 8th Dist.

Cuyahoga No. 88310,

; Brownlee v. Brownlee, 8th Dist. Cuyahoga Nos.

97037 & 97105,

(Under R.C. 3119.04(B), the amount of child support to

be awarded is to be determined by the trial court on a case-by-case basis and is left “‘entirely to

the court’s discretion.’”), quoting Cyr v. Cyr, 8th Dist. Cuyahoga No. 84255,

. The trial court is not required to make any specific findings or to provide any explanation

for its child support award unless it awards less than the amount calculated for combined gross

incomes of $150,000.

;

. {¶19} The statute is silent as to what constitutes a sufficient change in circumstances to

warrant modification of a child support order where the parties to a child support order

collectively earn more than $150,000. In Phelps I this court held that modification of such child

support orders is governed by the “general terms of R.C. 3119.79” and that a child support order

is properly modified only if there has been a “substantial” change in circumstances from the

original support order. Phelps I at ¶ 11-13, 17, 20-22.

{¶20} Recognizing that incremental changes in income for high income parents are not,

in and of themselves, substantial changes in circumstances, in Phelps I this court identified

“several considerations” that “guide the courts” in determining what constitutes a substantial

change of circumstances for high income parents. These considerations include: (1) the needs

and the standard of living of the child and the parents — specifically, how the child would have

lived had the parents remained together; (2) giving meaning to the word “substantial” by

requiring evidence of a “drastic,” “material” or “significant” change to avoid “endless motions

for modification based on incremental changes in income”; (3) ensuring that the substantial

change in circumstances was not contemplated at the time of the original support order and (4)

avoiding orders that operate as “de facto spousal support,” i.e., that modify child support solely

to offer the obligee parent a better standard of living. Phelps I at ¶ 16-23; see also Bohme v.

Bohme, 2d Dist. Montgomery No. 27258,

(“R.C. 3119.04(B) does not

address what constitutes a substantial change of circumstances, but the needs of the child and the

standard of living he or she has enjoyed are relevant factors, as in the initial determination of

child support under R.C. 3119.04(B); the public policy interest reflected in the ‘substantial’

change test of R.C. 3119.79(A) and (C), which is intended to prevent endless motions for

modification based on incremental changes in income, is also relevant.”). Failure to Impute Additional Income to Mother

{¶21} Pursuant to R.C. 3119.01(C)(5)(b) and(11)(a), “income” for purposes of

calculating child support includes the potential income that may be imputed to a parent who is

found to be voluntarily unemployed or underemployed. In determining whether an individual is

voluntarily underemployed, “‘[t]he test is not only whether the [underemployment] was

voluntary, but also whether it was made with due regard to the obligor’s income-producing

abilities and her or his duty to provide for the continuing needs of the child or children

concerned.’” Hurley v. Austin, 8th Dist. Cuyahoga No. 99992,

, quoting

Woloch v. Foster,

,

(2d Dist. 1994). Whether a parent

is voluntarily underemployed and the amount of any income to be imputed to the parent are

matters to be determined by the trial court based on the particular facts and circumstances of each

case. Rock v. Cabral,

, 615N.E.2d 218 (1993), syllabus. A parent claiming

that the other parent is voluntarily underemployed has the burden of proof on the issue.

, citing Fischer v. Fischer, 2d Dist. Clark No. 11 CA 81,

, and King

v. King, 4th Dist. Jackson No. 12CA2,

.

{¶22} In Phelps I, this court found that “[t]he magistrate acted unreasonably by making

factual findings that were inherently contradictory with regard to why mother only worked part

time hours” because it found both that (1) mother’s part-time work hours were “what was

available from her employer” and (2) mother did not work full time because (a) she would need

more daycare, (b) part-time employment allowed her to spend more quality time with the child

and (c) she had not asked to work more hours or inquired into transferring into other units where

more hours might be available. Phelps I at ¶ 43-44. This court further noted that the magistrate

“gave no consideration to whether [mother] had the ability to work more hours and whether potential income should be imputed to her.” Id. at ¶ 44. This court held that “[w]hile the [trial]

court had broad discretion to fashion a child support ordered, it erred by upholding a magistrate’s

decision that failed to consider [mother’s] potential income for purposes of establishing child

support.” Id. As such, this court directed the trial court to consider the issue of whether

additional income should be imputed to mother on remand. Id. at ¶ 3, 44. It, did not, however,

mandate that the trial court impute additional income to mother (and reduce father’s child

support obligation accordingly) when calculating the parties’ child support obligations.

{¶23} The record reflects that on remand, the trial court expressly considered whether

additional income should be imputed to mother. The trial court considered each of the relevant

criteria under R.C. 3119.01(C)(11)(a) and determined that father had not met his burden of

showing that mother was voluntarily underemployed or the amount of any additional income to

be imputed to mother. The trial court noted that father did not present any evidence with

respect to the availability of other employment or prevailing wages and salary levels in the

relevant geographic area and found that mother’s work schedule had allowed her to assist the

child with her school work and “spend quality time” with the child. The trial court further

indicated that even if more income were attributed to mother by imputation, it would not change

“the ultimate amount of support,” given that the amount of support in cases involving combined

gross incomes over $150,000 is determined on a case-by-case basis. On the record before us,

we cannot say that the trial court abused its discretion in refusing to impute additional income to

mother. Accordingly, we overrule father’s sixth assignment of error.

Amount of Father’s Modified Child Support Obligation

{¶24} Father also contends that the trial court abused its discretion in increasing his child

support obligation. He argues that the evidence presented at the hearing was “insufficient to warrant the child support modification ordered by the court” and that the trial court’s modified

child support award constitutes unlawful, “hidden spousal support.” He contends that the

original child support amount was sufficient to cover the child’s needs and lifestyle and that

mother has shown “no reason to deviate” from the basic monthly child support obligation

calculated for a combined gross income of $150,000 because the child participated in only

“routine” extracurricular activities, had no special needs and mother had been able to provide a

home for the child and pay for the child’s private school tuition, extracurricular activities and

other expenses using the child support she had previously received. He also complains that the

trial court’s modified child support amounts for each year “lack mathematical justification”

because none of the child support worksheets attached to the trial court’s judgment entry

“reference[s]” the trial court’s modified child support amounts and the trial court otherwise

“provides no explanation or reasoning” for its determination of the “final child support obligation

for each year.”5

{¶25} Following a thorough review of the record, we find no abuse of discretion by the

trial court in concluding that a substantial change of circumstances occurred that warranted

modification of father’s child support obligation in this case. Likewise, we cannot say that the

trial court abused its discretion in increasing father’s monthly child support obligation to $4,350.

{¶26} In Phelps I, this court stated that nothing in its decision “should be construed to

suggest that modification of child support was unwarranted in this case” and that “[father’s]

increased income alone warranted modification so that the child could enjoy a lifestyle consistent

5 Father also argues that, pursuant to R.C. 3119.79, the trial court had no authority to modify his child support obligation for 2009 and 2010 because his share of the basic combined child support obligation calculated under the basic child support schedule and worksheet for a combined gross income of $150,000 was not ten percent greater than the then-existing child support order. We need not address that issue here because, as discussed infra, we find that the trial court abused its discretion in ordering retroactive modified child support prior to August 17, 2011. with the one she would have had had the parents not divorced.” Phelps I at ¶ 52. However,

the court indicated that many of the magistrate’s findings “suggested that [father] had an

obligation to raise [mother’s] standard of living.” Id. at ¶ 51. Accordingly, it stated that the

trial court “must carefully distinguish the child’s need for support from [mother’s] personal needs

when considering modification of child support” on remand. Id.

{¶27} The trial court found that at the time the original child support order was entered,

mother had $12,000 in annual net income and father had $87,420 in annual net income. By

2009, mother’s annual gross income was $42,606 and father’s annual gross income was

$368,676. By 2013, mother’s annual gross income was $53,816 and father’s annual gross

income was over $544,000.

{¶28} On remand, the trial court used the child support worksheets to determine what

father’s monthly child support obligation would be each year for the years 2009 to 2013, under

the child support guidelines for a combined gross income of $150,000. See R.C. 3119.04(B).

The trial court reasoned that “[t]o have only determined the obligation for 2009, the year the

motion was filed, after a six year delay in bringing the motions to trial, would not have been

equitable to the parties or judicially economical.” It attached those worksheets to its judgment

entry. Those figures (excluding processing fees) were as follows: for 2009, $1,538.64; for

2010, $1,600.61; for 2011, $1,736.63; for 2012, $1,797.21 and for 2013, $1,804.47.

{¶29} The record reflects that the trial court then gave appropriate consideration to how

the child would have lived had her parents remained together, taking into account the needs and

lifestyle of the child and parents and each of the “several considerations that guide the courts” in

determining what constitutes a substantial change of circumstances for high income parents.

Phelps I at ¶ 16-23. {¶30} It is not the standard of living that the child had at the time the original child

support order was entered that determines the appropriate amount of child support to be awarded.

Rather, a child of divorced parents has the right to the same standard of living he or she would

have enjoyed if his or her parents were still married. As the court cautioned in Phelps I,

however, it is the how the child would have lived, not how the child could have lived that is

determinative. Phelps I at ¶ 19. A change in the income of very high income parents does not,

standing alone, constitute a substantial change in circumstances because it does not necessarily

affect a child’s needs or lifestyle. Id. at ¶ 16.

{¶31} In this case, given the significant increases in her parents’ income between the time

the initial child support order was entered and the time of the hearing on mother’s motion to

modify child support, it is reasonable to expect that the child’s standard of living would have

increased as well had her parents remained married. See, e.g., Basista v. Basista, 6th Dist.

Wood No. WD-14-076,

(trial court abused its discretion in finding that

it was reasonable to maintain the same total child support obligation when father’s income was

significantly higher than it was at the time marriage ended; father’s children should be able to

benefit from his increased income after divorce in the same way they would have if marriage had

continued).

{¶32} There is no ready means of determining the standard of living the child would have

enjoyed had her parents remained married. Likewise, finding the right balance between ensuring

that a child is provided the standard of living he or she would have enjoyed had the parents

remained married while avoiding an award that amounts to “de facto spousal support” is not an

easy task — particularly, where, as here, a custodial parent makes intangible contributions on

behalf of the child that may adversely affect his or her standard of living. See Siebert,

(noting that where intangible contributions made by the custodial

parent adversely affect that parent’s standard of living, “the court should ensure that these

intangible contributions are financially offset by the obligor parent,” but that “[t]he line between

offsetting contributions made by a custodial parents and avoiding ordering de facto spousal

support may sometimes not be clearly defined”). “In such cases, the [trial] court’s discretion

must guide its judgment.”

.

{¶33} The fact, as father asserted, that mother had been able to “make do,” paying only

$500 for rent and using her earnings and savings to pay for the child’s expenses when receiving

the original child support amount, is not determinative. Likewise, the possibility, as mother

asserted, that father “won’t feel” an increase in his child support obligation, is not the standard.

{¶34} There is no requirement in this case that the trial court provide a “mathematical

justification” as to why it ordered a particular sum as child support. The record reflects that the

trial court carefully considered both (1) the needs, income, expenses, intangible contributions and

standard of living of each parent and (2) the needs, expenses and standard of living of the child in

determining an appropriate modified child support amount. The trial court found that mother

provides health insurance for the child, pays work-related child care expenses for the child and

pays for the child’s private school tuition, additional tutoring and extracurricular activities — all

of which it reasonably determined were consistent with the lifestyle the child would have enjoyed

had her parents not divorced. The trial court further found that mother’s part-time work

schedule has allowed mother to assist the child with her school work and to spend additional

“quality time” with her and that the child lives a majority of the time with mother in

“sub-standard rental housing, prone to flooding” while father “enjoys a very comfortable home

and lifestyle.” The trial court indicated that mother wanted to provide better housing and clothing for the child and reasonably determined that this was consistent with the lifestyle the

child would have enjoyed had her parents not divorced. The trial court’s findings are supported

by competent, credible evidence in the record.

{¶35} On the record before us, the trial court’s decision to increase father’s monthly child

support obligation to $4,350 was not unreasonable, arbitrary or unconscionable. Father’s fourth

assignment of error is meritless.

Giving Retroactive Effect to Father’s Modified Child Support Obligation

{¶36} Although the trial court did not abuse its discretion in increasing father’s monthly

child support obligation to $4,350, we find that the trial court did abuse its discretion in ordering

father’s modified child support obligation retroactive to April 2009.

{¶37} As a general rule, because of the time it takes to modify child support orders, an

order modifying child support order may be made retroactive to the date the motion to modify

child support was filed unless special circumstances dictate otherwise. See, e.g., Oatey v.

Oatey, 8th Dist. Cuyahoga Nos. 67809 & 67973,

, 41; Winn v.

Wilson, 12th Dist. Butler No. CA2017-04-052,

; K.S. v. K.B., 6th Dist.

Fulton No. F-17-005,

. In this case, such special circumstances existed.

{¶38} In Phelps I, this court held that it was “inequitable for the [trial] court to order

modification of child support obligation retroactive to the date on which [mother] filed her

motion to modify” child support because the length of the delay allowed the court to order

modification of father’s child support obligation based on (1) father’s income “in the most

current years and not on his income at the time the motion was filed” and (2) “significant

expenses” mother had incurred long after her motion was filed. Phelps I at ¶ 57-58. This court

noted that it took the trial court six years to issue a decision on mother’s motion, that the case was in “judicial limbo” (through no fault of the parties) for at least two of those years due to an

issue involving the court’s jurisdiction and that, even after the jurisdictional issue was resolved,

the case moved at a snail’s pace due, in part, to judicial “time constraints.” Id. at ¶ 55.

{¶39} This court also questioned “how it could be equitable” to retroactively modify the

California child support order (from which mother did not appeal) given that it had only been in

place for a short time and found that the trial court had erred “by holding [father] responsible for

the child’s private school tuition without considering that [mother] made the unilateral decision

to send the child to private school and did so in violation of a restraining order prohibiting her

from doing so.” Id. at ¶ 3, 47, 59. It directed the trial court to correct these errors on remand.

Id. at ¶ 3, 60.

{¶40} The record reflects that, on remand, the trial court considered the impact of the

lengthy delays,6 the timing of mother’s motion to modify child support in relation to the initial

child support order incorporated in the parties’ divorce decree and the facts and circumstances

surrounding the child’s transfer to private school and the income when determining the amount

of father’s modified child support obligation. However, the trial court nevertheless, ordered

father to pay modified child support retroactive to when mother filed her motion to modify child

support — which this court had previously stated was “inequitable” and error. Phelps I at ¶ 3,

57. Thus, the trial court abused its discretion in ordering the modified child support retroactive

to April 2009 on remand. Nolan v. Nolan,

,

(1984), syllabus

6 In addition to the delays caused by resolution of the jurisdictional issue and other judicial delays, the trial court found that both parties were responsible, at least in part, for fourteen months’ delay from February 2012 to April 2013 (after the juvenile court ordered the case returned to the domestic relations court) when no one inquired as to when the motion to modify support would be scheduled for hearing. The trial court found that other delays were attributable to father’s failure to timely comply with discovery requests after the case was returned to the docket of the domestic relations court. (an inferior court generally has “no discretion to disregard the mandate of a superior court in a

prior appeal in the same case”).

{¶41} When mother filed her motion to modify child support in April 2009, the child was

four-and-one-half years old and not yet attending school. At that time, mother asserted that an

increase in child support was warranted due to changes in the parties’ incomes and daycare and

health insurance costs. The record reflects that as of the time of the hearing (in 2013-2014 when

the child was 9), mother’s most significant child-related expenses and the primary basis for her

seeking an increase in child support were the costs associated with sending the child to private

school.

{¶42} On remand, the trial court found that the child attended public school through the

2010-2011 school year and first began attending private school on August 17, 2011 for the

2011-2012 school year. The parties have not challenged these findings. Under the particular

facts and circumstances of this case, we find it would be equitable and in the best interest of the

child for father to pay modified child support retroactive to August 17, 2011, the date the child

first attended private school. Father’s fifth assignment of error is sustained in part and overruled

in part. Accordingly, we reverse the trial court’s judgment to the extent it imposes father’s

modified child support obligation retroactive to April 2009 and remand the case for issuance of a

new child support order that imposes father’s modified child support obligation retroactive to

August 17, 2011.

Attorney Fee Award Under R.C. 3105.73(B)

{¶43} In his seventh assignment of error, father challenges the trial court’s order to pay

$38,855 of mother’s attorney fees pursuant to R.C. 3105.73(B). Pursuant to R.C. 3105.73(B),

“[i]n any post-decree motion or proceeding that arises out of an action for divorce,” a trial 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 such an award is equitable, the trial

court “may consider the parties’ income, the conduct of the parties, and any other relevant factors

the court deems appropriate, but it may not consider the parties’ assets.” R.C. 3105.73(B). The

court may make an award of attorney fees and litigation expenses under R.C. 3105.73(B) in

addition to making an award of attorney fees and litigation expenses under any other provision of

the code or civil rules. R.C. 3105.73(C).

{¶44} Father contends that it was inequitable for the trial court to order him to pay any

of mother’s attorney fees because many of the delays in the litigation were attributable to the

jurisdictional issue that resulted in the transfer of the case to juvenile court and then back to

domestic relations court, and to mother’s conduct, including ten motions for continuance she

filed between June 2009 and February 2014. He also challenges the evidence mother submitted

to support her request for attorney fees, asserting that certain of the fees were unreasonable,

including fees charged for several instances in which two attorneys appeared on mother’s behalf

at deposition or trial, and contends that mother failed to comply with Loc.R. 21(B) of the Court

of Common Pleas of Cuyahoga County, Domestic Relations Division (“Loc.R. 21(B)”).

{¶45} Whether to award attorney fees under R.C. 3105.73(B) is within the sound

discretion of the trial court. Walpole v. Walpole, 8th Dist. Cuyahoga No. 102409,

,¶ 70 (“A court’s decision on a request for attorney fees will not be overruled

unless there is ‘no sound reasoning process that would support that decision.’”), quoting AAAA

Ents., Inc. v. River Place Community Urban Redevelopment Corp.,

,

(1990).

{¶46} Loc.R. 21(B) provides: Evidence in Support of Motion. At the time of the final hearing on the motion or pleading that gives rise to the request for attorney fees, the attorney seeking such fees shall present:

(1) An itemized statement describing the services rendered, the time for such services, and the requested hourly rate for in-court time and out-of-court time;

(2) Testimony as to whether the case was complicated by any or all of the following:

(a) new or unique issues of law; (b) difficulty in ascertaining or valuing the parties’ assets; (c) problems with completing discovery; (d) any other factor necessitating extra time being spent on the case;

(3) Testimony regarding the attorney’s years in practice and experience in domestic relations cases; and

(4) Evidence of the parties’ respective income and expenses, if not otherwise disclosed during the hearing.

{¶47} “‘Where the amount of an attorney’s time and work is evident to the trier of fact, an

award of attorney fees * * * is not an abuse of discretion,’” even in the absence of “‘specific

evidence’” to support the amount awarded. Rodgers v. Rodgers, 8th Dist. Cuyahoga No.

105095,

, quoting Dotts v. Schaefer, 5th Dist. Tuscarawas No. 2014 AP 06

0022,

, ¶ 17. “[D]omestic relations courts often rely on their own knowledge

and experience to determine the reasonableness of attorney fees.”

.

{¶48} Mother requested over $94,000 in attorney fees and litigation expenses from May

2009 to May 2014 related to her motion to modify child support. In support of her request,

mother’s counsel submitted itemized billing statements detailing the work performed, and

Attorney Joseph Stafford testified in narrative form at the hearing regarding mother’s attorney

fees and litigation expenses. Although father complains that no evidence was presented

regarding the “various attorneys’ years in practice and experience in domestic relations matters,”

father’s counsel stipulated to Attorney Stafford’s qualifications at the hearing. Attorney Stafford testified that he began representing mother in 2009, taking over the case from prior

counsel. He testified that he handled “all aspects of the case” and described the work he and his

associates and legal assistants performed on the case, including the jurisdictional issue that arose

in the case and the difficulties in obtaining financial documentation from father to determine

father’s income. He testified as to his hourly rate and that of his associates, identified tasks

performed for which he did not charge the client and stated that all of the work performed was

“reasonable and necessary.” We find that the evidence presented was sufficient to comply with

Loc.R. 21(B).

{¶49} Although father asserts that mother’s counsel’s billing statement include various

charges for a law clerk “to carry files,” Attorney Stafford disputed this claim and testified that his

law clerk assisted him at the hearing, including by taking notes. Likewise, although father

asserts that the billing statements “contain[] many charges for services with no reference to any

individual who may have done the work,” Attorney Stafford testified that this was due to a

change in how time entries were recorded over the years and that any time entries that were not

specifically attributed to another timekeeper related to legal services he performed personally.

{¶50} In considering mother’s request for attorney fees, the trial court found that an

award of $38,855 in attorney fees was both reasonable and equitable under R.C. 3105.73(B) due

to the disparity in the parties’ income and the fact that some — but not all — of the delays in the

case were attributable to father and his “continued refusal to provide * * * legitimately requested

discovery.” The sum awarded by the trial court was a little more than 40 percent of the fees

requested by mother. The time mother’s attorneys spent attempting to obtain financial

information and documents from father is well-documented in the record. The trial court’s

decision to award mother $38,855 toward her attorney fees was within its discretion. Contempt Order

{¶51} Father also challenges the trial court’s contempt finding and order requiring him to

pay $6,950 in attorney fees and $113.35 in litigation expenses to mother’s counsel to purge the

contempt.

{¶52} Contempt is “a disregard of, or disobedience to, an order or command of judicial

authority.” Kapadia v. Kapadia, 8th Dist. Cuyahoga No. 96910,

, citing

State v. Flinn,

,

(9th Dist. 1982). Disobedience of a lawful

court order is punishable as contempt. See R.C. 2705.02(A). Proof of a purposeful, willful or

intentionalviolation of a court order is not a prerequisite to a finding of contempt. Collins v.

Collins, 8th Dist. Cuyahoga No. 105945,

, citing Pugh v. Pugh,

,

(1984).

{¶53} Civil contempt must be established by clear and convincing evidence, i.e., the trier

of fact must have a firm conviction or belief that the facts alleged are true. Hissa v. Hissa, 8th

Dist. Cuyahoga Nos. 99498 & 100229,

, citing Flowers v. Flowers, 10th

Dist. Franklin No. 10AP-1176,

, ¶ 9; In re Contempt of Tracy Digney,

,

, ¶ 8 (8th Dist.). We review a civil contempt finding under an

abuse of discretion standard.

;

.

{¶54} Father contends that the trial court abused its discretion in holding him in contempt

and ordering him to pay mother’s attorney fees because (1) he testified that compliance with

mother’s document requests was an “impossibility” given that “most of the documents

requested” were not in his possession or under his control, but rather, in the possession of his

brother (who managed the real property and partnerships in which father had an ownership

interest) or his accountant — both of whom were out of state; (2) mother should have been required to seek the documents she was requesting by subpoena or depositions of his brother and

accountant and (3) he had already produced documents “sufficient for verification of his income”

for the relevant years by producing copies of his tax returns, W-2s, K-1s and bank account

information.

{¶55} In this case, the trial court’s finding of contempt was not an abuse of discretion.

Civ.R. 26 and 34 require the timely production of requested documents that are (1) relevant to

the subject matter of the pending action or reasonably calculated to lead to the discovery of

admissible evidence and (2) in the “possession, custody or control” of the party from which they

are sought. In addition to the income he earns as an anesthesiologist, the record reflects that

father has ownership interests in numerous real estate holdings, businesses and partnerships.

Information and documentation relating to those interests are relevant to a determination of

father’s income for child support purposes. See, e.g., R.C. 3119.01(C); see also Radford v.

Radford, 8th Dist. Cuyahoga Nos. 96267 & 96445,

; Offenberg v.

Offenberg, 8th Dist. Cuyahoga Nos. 78885, 78886, 79425 and 79426,

, ¶ 20-30.

{¶56} The magistrate found father to be in contempt of court due to his repeated wilful

failures to comply with court orders to provide requested financial documentation. As the

magistrate stated in his decision:

Defendant was questioned [at the hearing in November 2013] as to his awareness of the prior court orders to provide the discovery requests [sic]. He acknowledged that he was aware of the orders. The Defendant acknowledged that he still had not complied with all of the discovery requests. He claimed that he either did not have access to the documents, or that his brother and business partner refused to provide him the documents, or his accountant did not send him the documents (which he later admitted that he never requested same from his accountant) or that the records were stored at his cabin located on the west coast. He admitted that he spent two (2) weeks at the cabin in August 2013, on vacation and did not retrieve the records nor did he stop and see his accountant while he was there. In listening to Defendant’s testimony in this regard, he was often evasive, non-responsive and not credible. Not only at this hearing, but at the subsequent hearing dates after reviewing the business and partnership tax returns subsequently provided, there were continued determinations of additional partnership/business and real estate holdings in which the defendant owned an interest * * * which were not disclosed to Plaintiff’s counsel although requested in discovery. It became clear to this Magistrate that the Defendant continually obstructed and willfully evaded providing the requested discovery in this action.

{¶57} In overruling father’s objections to the magistrate’s decision related to the

contempt finding, the trial court further found:

The Magistrate did not err nor abuse his discretion in finding Defendant in

contempt of court and awarding Plaintiff attorney fees. Throughout Defendant’s

testimony, he acknowledged his awareness of the prior court orders to provide

discovery requests. He also affirmed that at the time of trial he had not complied

with all of the discovery requests. He failed to convince the Magistrate of a

valid reason as to why he was non-compliant with the orders and requests.

Defendant’s testimony illustrated to the Magistrate that Defendant “continually

obstructed and willfully evaded” the orders of this Court. This testimony was

enough to provide clear and convincing evidence that the civil contempt was

supported pursuant to Ockunzzi v. Ockunzzi No.: 86785,

(8th

Dist, Ct. App., Cuyahoga, County 11-2-06).

The evidence in the record — most notably, father’s own testimony — clearly and convincingly

supports these findings.

{¶58} The record is replete with evidence of father’s knowing, repeated failures to

comply with court orders to produce financial documentation in this case. Although inability to

comply with a court order is a defense in a contempt proceeding, the burden of proving inability

to comply is on the party subject to the contempt charge. See, e.g., Briggs v. Moelich, 8th Dist

Cuyahoga No. 97001,

(“A party must take all reasonable steps within her power to comply with the court’s order and, when raising the defense of impossibility, must

show ‘categorically and in detail’ why she is unable to comply with the court’s order.”), quoting

Lahoud v. Tri-Monex, Inc., 8th Dist. Cuyahoga No. 96118,

; see also

Bouillon v. Bouillon, 3d Dist. Seneca Nos. 13-14-33 & 13-15-02,

, citing

Liming v. Damos,

,

,

(2012).

{¶59} Father did not meet his burden in this case. Both the magistrate and trial judge

acted reasonably in rejecting father’s claims that it was “impossible” for him to comply with the

court’s orders because he did not have possession or control of financial documents he had been

ordered to produce.

{¶60} The attorney fees and litigation expenses, which the trial court ordered father to pay

to purge the contempt, were reasonable and directly related to mother’s counsel’s motions to

compel discovery, motions to show cause and services at the hearing regarding father’s failure to

comply with the court orders. Accordingly, father’s seventh assignment of error is overruled.

Motions Father Filed After Remand

{¶61} In light of our rulings on father’s other assignments of error, we sustain his first

assignment of error in part and overrule it in part and we overrule his second and third

assignments of error.

{¶62} Judgment affirmed in part, reversed in part. Case remanded for (1) issuance of a

new child support order that imposes father’s monthly modified child support obligation

retroactive to August 17, 2011 — i.e., from August 17, 2011 through December 31, 2011,

father is to pay $3,900 per month in child support and from January 1, 2012 forward, father is to

pay $4,350 per month in child support — and (2) recalculation of child support arrearages consistent with this opinion. The new child support order is to be issued within 60 days of the

date this decision is journalized.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga County

Court of Common Pleas, Domestic Relations Division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

_____________________________________________________ EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

MELODY J. STEWART, J., CONCURS; SEAN C. GALLAGHER, J., CONCURS IN PART AND DISSENTS IN PART

SEAN C. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN PART:

{¶63} I concur with the majority opinion, except with respect to its decision to change the

retroactive date for child support from April 2009 to July 17, 2011. Because I do not believe

there was any abuse of discretion by the trial court, I would affirm the entire trial court’s

decision.

{¶64} Although this divorce case originated in California, the divorce decree was

registered in Ohio in February 2009 and was followed by the filing of mother’s motion to modify

child support in April 2009. After the motion to modify was filed, it was six years before the

matter was heard and decided in 2015. {¶65} The 2008 divorce decree ordered father to pay $1,571 in monthly child support.

At the time the original child support order was entered, mother had $12,000 in annual net

income and father had $87,420 in annual net income. The record shows that father’s income

increased in 2009 to $368,676 and by 2013 to $544,000. Mother’s income also increased in

2009 to $42,606 and by 2013 to $53,816. Also, by the time of the 2015 hearing, the child was

attending a private school.

{¶66} The magistrate granted mother’s motion to modify child support, and the trial court

overruled objections and adopted the magistrate’s decision. The trial court modified father’s

child support obligation retroactively, ordering incremental increases in father’s child support

obligation beginning on February 5, 2009.

{¶67} Upon the initial appeal in Phelps v. Saffian, 8th Dist. Cuyahoga No. 103549,

(“Phelps I”), errors were found in the trial court’s determination of the

modification of child support and the case was remanded with a mandate for the trial court to

issue a new ruling on the motions to modify child support. Id. at ¶ 68. As stated in Phelps I,

“Nothing we have said here should be construed to suggest that modification of child support

was unwarranted in this case. Saffian’s increased income alone warranted modification so that

the child could enjoy a lifestyle consistent with the one she would have enjoyed had the parents

not divorced.” Phelps I at ¶ 52.

{¶68} Upon remand, the trial court issued a new ruling and found that, based on increases

in the parties’ income, a substantial, significant, and material change in circumstances occurred

that warranted modification of the existing child support order. The court once again ordered

retroactive incremental increases in father’s child support obligation beginning with $3,250 per

month from April 2, 2009, to December 31, 2009; $3,900 per month for 2010 and 2011; and $4,350 per month from January 1, 2012, forward. The court also ordered father to pay a

child-support arrearage, found father in contempt for failing to comply with discovery orders, and

awarded mother attorney fees.

{¶69} I respectfully disagree with the majority’s reasoning in changing the retroactive

date for child support modification to August 17, 2011, which is associated with the date the

child first attended private school. The majority acknowledges that mother’s motion to modify

was premised on changes in the parents’ income and daycare and health insurance costs. The

majority then states mother’s primary basis for seeking modification at the time of the hearing

was the expense of providing for a private school education. However, I believe the trial court

was well within its discretion to award an incremental modification of child support reflective of

the increased standard of living the child would have had since 2009 if the parents remained

together.

{¶70} Generally, absent special circumstances, an order of the court modifying child

support should be retroactive to the date the motion for modification was filed. Baxter v.

Thomas, 8th Dist. Cuyahoga No. 101186,

, ¶ 36, citing In re P.J.H.,

,

,

(2d Dist.); State ex rel. Draiss v. Draiss,

,

(9th Dist. 1990); and Murphy v. Murphy,

,

(10th Dist. 1984). Indeed, “[a]ny other holding might produce an

inequitable result in view of the substantial time it frequently takes the trial court to dispose of

motions to modify child support obligations.”

. As stated by the trial court, “the

best interest of the minor child should not be impacted as a result of the delay in ruling on the

motion to modify support.”

{¶71} The majority concludes that Phelps I precluded the trial court from ordering the modification of child support retroactive to the date the motion was filed. In Phelps I, the panel

questioned “how the magistrate could have determined that it would be equitable to retroactively

modify a California child support order that had been in place for only a few months” at the time

the motion to modify was filed. Id. at 59. The panel recognized the lengthy delay in ruling on

the motion and found it was inequitable to order a modification retroactive to the date the motion

was filed “because the length of the delay allowed the court to order modification of child

support based on Saffian’s income in the most current years and not on his income at the time the

motion was filed.” Id. at ¶ 57. Thus, in Phelps I, there was a factual concern to which the law

of the case doctrine has no application. See Orrville Prods. v. MPI, 8th Dist. Cuyahoga No.

65184,

, 10 (June 9, 1994). (“[T]he doctrine of law of the case

applies only to legal questions and has no application to ‘findings’ by the appellate court with

respect to factual issues not determined by the decision of the trial court.”).

{¶72} As clarified in the trial court’s decision on remand, by April 2009, when mother’s

motion to modify was filed, there had been a significant change in father’s income. The trial

court observed that the original child support order was based upon the 2006 incomes of the

parties, because the California court had incorporated a November 15, 2006 temporary child

support order into the original child support order. The court reviewed the increases in mother’s

income from 2009 to 2015 and the “significant increases” in father’s income and found “a

substantial, ‘significant’ and ‘material’ change in circumstances occurred * * * which warrants

the modification of the existing child support order.” The trial court increased father’s child

support obligation “based on changes of circumstances and considering the standard of living the

child would have had if the parties had remained married.” The court determined the child

support modification should be retroactive to the date of the April 2, 2009 motion to modify child support.

{¶73} The trial court enjoys broad discretion in modifying child support. Murphy,

,

. Under an abuse of discretion standard, this court may not

substitute its judgment for that of the trial court. Sandel v. Choma, 9th Dist. Summit No. 26895,

, citing Pons v. Ohio State Med. Bd.,

,

,

. Upon the record herein, I find the trial court did not abuse its

discretion in awarding the incremental modification of child support retroactive to April 2009

when the motion to modify child support was filed. There are no facts in the record

demonstrating “special circumstances” that would justify any other date.

{¶74} For these reasons, I dissent from this portion of the majority opinion. I concur

with the remainder of the majority decision and would affirm the entire decision of the trial court.