COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59346 THOMAS L. MEROS : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION : PEGGY MEROS : : Defendant-Appellee : : DATE OF ANNOUNCEMENT NOVEMBER 14, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Division of Domestic Relations Case No. D-175281 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Thomas L. Meros, Pro se Joseph Bancsi 736 Standard Building 19915 Lake Road Cleveland, Ohio 44113 Rocky River, Ohio 44116 Janet Kronenberg Guardian Ad Litem 410 Midland Bldg. Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: Thomas Meros (the "husband") appeals the judgment of the Domestic Relations Division of the Common Pleas Court because of his dissatisfaction with orders concerning legal, guardian ad litem, and expert witness fees. Our review of the record compels affirmance. The husband and Peggy Meros (the "wife") entered into an in-court settlement on December 3, 1987, on all issues relating to divorce, child custody, visitation and support. The judgment entry of divorce was journalized on December 30, 1989. Several post-decree motions were filed by both parties challenging, inter alia, nonpayment of child support, alimony, and interference with visitation privileges. The court appointed a guardian ad litem to represent the interests of the parties' two minor children. Pursuant to the initial agreement, the husband was required to pay one hundred seventy dollars a week in child support as well as alimony for six months, beginning in December of 1987, in the amount of two hundred twenty-five dollars a week. Thereafter, he was to pay one hundred twenty dollars a week for the following twelve months and sixty dollars a week for the next six months. In addition, the husband was to pay the wife three thousand dollars in three installments over a one-year period and the wife was to have use of the family automobile. Between 1987 and 1989, the parties filed a plethora of motions concerning the husband's nonpayment of child support and - 2 - alimony, and the wife's interference with visitation. In a judgment entry dated May 6, 1988, the court found the husband in arrears in child support and alimony in the sum of $7,396.22. That amount was reduced to judgment. A flurry of motions concerning the same issues followed. The parties entered into another settlement, journalized on October 27, 1988, whereby they agreed the husband was in arrears in the amount of $11,299. More motions followed in 1989. Although a date was set for December 7, 1989, the court, on its own motion, continued the proceeding until January 3, 1990. After three days of hearings, directed mainly at the husband's nonpayment of child support and alimony, the court found him guilty of contempt. In a judgment entry dated January 23, 1990, the trial court issued findings of fact and conclusions of law. The wife's lawyer was able to recover eleven thousand dollars from the husband, a practicing attorney in Cleveland, by seizing his Lincoln automobile and attaching a fee he had recovered in another case. The trial court granted the wife attorney fees in the amount of $11,654, ordered that the guardian ad litem fee of $2,595 and the fee for a court appointed psychologist be split equally between the parties. It is from this judgment entry that the husband appeals. We note that the husband initially raised five assignments of error in this appeal but has dismissed all but the first. His remaining assignment of error challenges the award of the wife's - 3 - attorney fees and the court's ruling that the guardian ad litem and psychologist fees be split equally between the parties. We will address each of these issues separately. The husband posits the court violated Rule 21 of the Rules of the Domestic Relations Division of Cuyahoga County and abused its discretion by awarding fees in an unreasonable amount. Local Rule 21 of the Domestic Relations Division provides in pertinent part: "Rule 21. Attorney Fees. "(A) How made. "*** "(2) A request for attorney fees and expenses to defend an action shall be by motion filed at least 14 days prior to the hearing on the motion being defended. "(3) No oral motion for fees shall be entertained unless good cause is shown why the provision of this rule could not be complied with and jurisdiction is reserved in any order resulting from the hearing. "***" The husband contends the wife did not comply with the requirements of Local Rule 21, in that she did not offer evidence as to why she could not comply with the rule as provided in (A)(3). The husband also argues that the trial court abused its discretion in sua sponte continuing the hearing scheduled for December 7, 1989 to January 3, 1990. The court's action was apparently based on the wife's non-compliance with (A)(2) of Local Rule 21, requiring a request for attorney fees to - 4 - be made fourteen days prior to the hearing. The record shows the wife filed her motion for attorney fees on December 19, 1989. Abuse of discretion means more than an error of law or judgment; rather, "it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219 quoting State v. Adams (1980), 62 Ohio St. 2d 151, 157. We find the court's decision to continue the hearing one month was not "unreasonable, arbitrary, or unconscionable." Its apparent basis was to provide the wife an opportunity to file a motion for attorney fees in compliance with Local Rule 21. The wife's counsel put over ninety hours into this case, directed mainly at recovering the child support and alimony owed by the husband. As the trial judge observed, it was only through counsel's aggressive collection efforts that the wife was able to recover eleven thousand dollars of the arrearages. At no time did the husband demonstrate any willingness to comply with court directives. We hold, therefore, that it was not an abuse of discretion for the judge to continue the hearing until a later date. As for the other requirements of Local Rule 21, we find sufficient compliance. The wife filed a written motion on December 19, 1989, fourteen days prior to the January 3, 1990 hearing as required under (A)(2). Furthermore, since the motion was in writing, (A)(3) of the rule is inapplicable. The wife's attorney also submitted sufficient evidence to support the request for attorney fees. At the hearing he provided an itemized - 5 - statement describing the legal services rendered, the hours billed: ninety-two and a half, and the rate: one hundred fifty dollars an hour. The court also heard testimony on the attorney's years of experience in the field of domestic relations as well as evidence concerning the parties' relative income and expenses. Therefore, the wife sufficiently complied with Local Rule 21. The husband also challenges the amount of attorney fees awarded to the wife. The granting of attorney fees is within the sound discretion of the trial court. Swanson v. Swanson (1976), 48 Ohio App. 2d 85, 89-9l; Linehan v. Linehan (1986), 34 Ohio App. 3d 124, 128. In awarding attorney fees as alimony, "consideration must be given to the reasonableness of the attorney fees and to the special criteria used in the granting of an alimony award." Swanson, supra, at 90. We also recognize a trial court has discretion to include reasonable attorney fees as a part of costs taxable to a defendant found guilty of civil contempt. State, ex rel. Fraternal Order of Police, v. Dayton (1977), 49 Ohio St. 2d 219, 230. The Swanson court referenced several guidelines promulgated in the Code of Professional Responsibility used in determining the reasonableness of a fee: "(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. - 6 - "(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. "(3) The fee customarily charged in the locality for similar legal services. "(4) The amount involved and the results obtained. "(5) The time limitations imposed by the client or by the circumstances. "(6) The nature and length of the professional relationship with the client. "(7) The experience, reputation, and ability of the lawyer or lawyers performing the services. "(8) Whether the fee is fixed or contingent." Id. at 90. The Swanson court added: "Upon appeal the only questions for inquiry are whether the factual conclusions upon which the trial court based the exercise of its discretion were against the manifest weight of the evidence; or, whether there was an abuse of discretion." Id. at 90. See, also, Linehan, supra, at 128. In the present case, the domestic relations court ordered the husband to pay the wife's attorney fees in the amount of $11,654. The wife originally sought $14,654 in attorney fees; however, the court found that 20 hours of the fees, or two thousand dollars, were devoted to visitation matters separate and apart from the collection of child support and alimony. In awarding the attorney fees, the court made the following findings of fact: 1) Defendant's attorney is experienced in the field of domestic relations having practiced in this area over fifteen years. - 7 - 2) In order for defendant to collect on delinquent child support, she was compelled to hire an attorney. 3) The attorney's time, effort and services over a two-year period were justified. 4) The attorney's acceptance of this case, precluded him from other work. 5) The fees are consistent with those customarily charged in the Cleveland area for similar legal services. 6) The results obtained justified the amount of the fees. We find the court faithfully discharged its duty in determining the reasonableness of the attorney fees awarded under the Swanson guidelines. The husband next claims the amount of attorney fees awarded is far in excess of his ability to pay. He contends that, in both 1988 and 1989, he had a net income of fifteen thousand dollars after expenses, taxes, and child support and alimony obligations were met. Furthermore, the husband testified he is thousands of dollars in arrearages in office rent and rent on his home. As to this issue, we find the language of the Swanson court persuasive: "If this were the only evidence in the record below we would have no difficulty in concluding that the attorney fees awarded were demonstrably disproportionate to the evidence of appellant's ability to pay, particularly considering the other monetary awards included in the judgment entry of the court. "But, as is to be expected in such cases, there is a conflict in the evidence as to the financial status of the husband." Swanson, supra, at 95. - 8 - The trial court found that, in 1987, when the husband entered into the agreement to pay child support and alimony his 1987 tax return indicates a gross income of eighty-five thousand dollars, expenses of sixty-five thousand dollars, for a net income of twenty thousand dollars. In 1988, his gross income was fifty-three thousand dollars, expenses of forty thousand dollars, for a net income of fourteen thousand dollars. Finally, in 1989 his gross income was eighty thousand dollars, expenses of sixty- five thousand dollars for a net income of fifteen thousand dollars. The court further noted that the husband remarried in 1989 and his new wife contributes an annual income of twenty-five thousand dollars to support both of them. In assessing the husbands income, the trial court observed: "The father has repeatedly and consistently demonstrated a pattern of nonpayment of both child support and alimony in a blatant and wilful [sic] manner disregarding the orders of this Court. In reviewing the documentation and reports of income and expenses of the father in 1989, the Court takes notice that in the month of January, 1989, the father received over $10,000 in income. However, only $280 was given to mother for child support and alimony that month. The current order of the Court at that time was approximately $1,500 a month and yet when the father received in excess of $10,000 he chose only to give mother $280 -- totally disregarding current support and the fact that he was in arrears to her of almost $20,000. That alone is sufficient to find contempt." The court concluded: "In finding the father in contempt of Court, the Court is ever mindful of the above debts that he set forth in his testimony; however, the Court must note that Mr. Meros' credibility has certainly suffered during his three (3) days of testimony and the Court has grave reservations as to whether or not he even owes these debts." - 9 - We find the court did not abuse its discretion in awarding the wife attorney fees in the amount of $11,654. The trial judge had a sufficient basis upon which to base her decision. The husband also claims the court abused its discretion in awarding fees to the guardian ad litem and psychologist, and in requiring the parties to bear them equally. Civ. R. 75(B)(2) grants the court authority to tax the costs of a guardian ad litem to the parties. It provides: "When it is essential to protect the interest of a child, the court may join the child of the parties as a party defendant and appoint a guardian ad litem and legal counsel if necessary, for such child and tax the costs thereof." The appointment of a guardian ad litem pursuant to Civ. R. 75(B)(2) is within the sound discretion of the trial court. Stone v. Stone (1983), 9 Ohio App. 3d 6, 12; Wilgus v. Wilgus (December 16, 1988), Cuyahoga App. No. 88073, unreported at 4. The court on its own motion found it essential to protect the interests of the children, and thus appointed the guardian ad litem. The court also noted that both parties stipulated the guardian ad litem's fees were reasonable and necessary. Given the trial court's broad authority to tax as costs the guardian ad litem's fees under Civ. R. 75(B)(2), we find no abuse of discretion in ordering the parties to divide the fees equally, especially in light of the husband's income. As to the division of the psychologist's fees, the court also found that the parties stipulated that this fee was - 10 - reasonable and necessary. We also find no abuse of discretion in the court's order that the parties bear it equally. Accordingly, the husband's assignment of error is overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 11 - It is ordered that appellee recover of appellant her 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 Common Pleas Court 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. PATTON, J., and SPELLACY, J., CONCUR. PRESIDING JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .