COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66104 LEONARD A. RUSSELL : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CATHLEEN V. CARR, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. CP-D-216266 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: MARK A. MCCLAIN, ESQ. JAMES W. WESTFALL, ESQ. 1677 East 40th Street HERMINE EISEN, ESQ. Cleveland, Ohio 44103 EISEN & WESTFALL 1160 Illuminating Building Cleveland, Ohio 44103 - 2 - DYKE, J.: Plaintiff-Appellant, Leonard Russell, appeals interim final orders of the Court of Common Pleas, Domestic Relations Division finding him in contempt of court for failure to pay temporary support and ordering him to pay attorney fees. In his first assignment of error, appellant claims that the trial court erred in awarding temporary support arrearages to his 1 former wife, defendant, Cathleen V. Carr because it failed to properly consider their earning capacities and because it utilized his gross income in computing the award. In his second assignment of error, appellant claims that the court erred in awarding attorney fees because there was insufficient evidence in the record to support a determination as to the reasonableness of such fees. Upon review, we find appellant's assignments of error to be without merit. Accordingly, the judgment of the trial court is affirmed. On February 14, 1992 appellant filed a complaint for divorce. Defendant, Carr counterclaimed for same on March 19, 1992. Subsequent to protracted pre-trial proceedings associated with the "contemptuous, deceitful, frivolus [sic], and litigious conduct" of the appellant (See, Findings of Fact, Vol. 2518, Pg.888) a hearing was held to consider the following motions: appellant's Motion to Modify Temporary Support (#217090), his Motion to Compel Listing for Sale of Marital Residence (#217091), defendant's Motion to Show Cause (#217426), her Motion for Attorney Fees (#217427) her motion 1 Ms. Carr has not filed an appellee brief in this matter. - 3 - for Interim Fees (#21466) and for Enforcement of Health Care Insurance pursuant to R.C. 3195.71. This hearing was held on January 7, 1993. On February 2, 1993 the referee issued findings of fact and conclusions of law which were affirmed over appellant's objections on August 25, 1993. The trial court denied appellant's motion for reconsideration and issued additional orders on December 21, 1993 to effectuate its August 25, 1993 contempt order. The underlying divorce action was tried on various dates from January, 1994 through April, 1994. The court granted a decree of divorce on December 21, 1994 journalizing a thirty-one page Judgment Entry predicated upon thirty three pages of "Findings of Fact." Appellant advances two assignments of error predicated upon the court's August 25, 1993 and December 21, 1993 orders directing him to pay "$6,881.64 in arrearages" and directing "Society Bank" to release $20,000 in interim attorney fees from his bank account. (Vol. 2294, Pg. 985) I THE AWARD OF SPOUSAL SUPPORT TO APPELLEE WAS IN MANIFEST ERROR BECAUSE THE COURT DID NOT PROPERLY CONSIDER THE ABILITY OF BOTH PARTIES TO PAY. Appellant, a dentist in private practice, advances two arguments in support of his first assignment of error. First he argues that the court's award was improper because it erroneously utilized his undisputed gross income of $200,000 instead of his approximate net income of $60,000 in computing the award. Appellant also argues that the court failed to consider his - 4 - ex-wife's earning capacity in awarding temporary alimony. We find appellant's first argument to be devoid of merit as R.C. 3105.18 is silent with respect to gross or net income. The statute governing the determination of spousal support, R.C. 3105.18, refers only to the 'income of the parties.' See, R.C. 3105.18(C) (1)(a) Thus, this code section gives more latitude to the trial court in calculating income for purposes of spousal support as compared to R.C. 3113.215(A)(2), which specifies that child support be based upon 'gross income' * * * earned or unearned * * * during a calendar year. Thus, as the statutes are written, the trial court is within its discretion to arrive at amounts of spousal support and child support based upon different calculations, since the calculation for child support is based upon actual wages earned, whereas the calculation of spousal support is determined by earning capacity. Frost v. Frost (1992) 84 Ohio App.3d 699, 720. Appellant's second argument is also devoid of merit as defendant, Carr testified that while she was licensed to practice law in the state of Ohio she did not have the financial resources to establish a law practice and that although she tried working out of her home, she had not been able to attract clients. She further stated that she had submitted her resume to a search firm for the purpose of seeking legal employment but had been unsuccessful. She explained that because of such circumstances she has been teaching at Dyke College earning $680.00 per month. Ms. Carr stated that she had primary custody of the parties' pre-school age daughter and that she had no other source of income. (Transcript of Proceedings, January 7, 1993, Pgs. 25, 43-46, 78, 80) Hence, sufficient evidence of Ms. Carr's limited earning capacity was adduced during - 5 - the hearing to support the court's award of arrearages. See. C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Moreover, the record demonstrates and it is undisputed that the appellant signed an agreed judgment entry obligating him to pay temporary support in the amount of $2,000 per month on August 21, 1992; that he failed to pay such support and that he filed a Motion to Modify Support only three months after signing same. (See, Journal Entry Volume 2027, Page 27 through 29, Stipulated Exhibit M, Hearing 1/7/93 Tr. Pg. 92 and Docket Motion #217090) Hence, the trial court did not err in finding appellant in contempt for failure to pay temporary support properly determined pursuant to R.C. 3105.18. Appellant's first assignment of error is overruled. II THE COURT ABUSED ITS DISCRETION AND ERRED IN THE AWARD OF INTERIM ATTORNEY FEES DUE TO ITS FAILURE TO TAKE TESTIMONY FROM ALL OF THE SEPARATE ATTORNEYS PROVIDING THE SERVICES FOR WHICH THE FEES WERE AWARDED AND ITS CALCULATION OF THE FEE COMPUTATION WITH STRICTLY A MATHEMATICAL FUNCTION. Appellant advances three arguments in support of his second assignment of error. First, he argues that the trial court erred in awarding $20,000 in interim attorneys fees because defendant's counsel presented insufficient evidence to prove the reasonableness of fees during the January 7, 1993 hearing. Second, he argues that the award was erroneous because the court ordered fees to be paid from a bank account which allegedly contained "his" half of the proceeds from the sale of the marital residence. Lastly, appellant argues that - 6 - the award constitutes an abuse of discretion because it allegedly 2 represented fifty percent of his annual adjusted gross income. Appellant's arguments are devoid of merit. A review of the Findings of Fact which support the court's final judgment entry of divorce state that 100% of the proceeds from the sale of the parties' marital residence were traceable to defendant Carr's premarital, separate property and that 100% of such funds 3 should be returned to her. This finding of fact renders 2 While appellant predicates his argument on his adjusted gross income, he (although subpoenaed to do so) brought no financial information whatsoever with him to the January 7, 1993 hearing to prove such income. Hence, he provided the court with no evidence of a change in circumstance to justify a modification of spousal support. See, Leighner v. Leighner (1986), 33 Ohio App.3d 214. Hence, the trial court granted defendant's oral motion to dismiss appellant's Motion to Modify Support (filed one year prior to the hearing) for failure to prosecute pursuant to Local Rule 4(B) "Unprepared for Trial or Hearing." 3 The trial court's "Findings of Fact" state in relevant part that: The Court further finds that from her separate premarital funds Defendant Cathleen [sic] v. Carr invested $58,597.98 in the acquisition of the marital home on Fairmount Boulevard. From her separate funds, Defendant Cathleen V. Carr also invested $83, 210.00 on improvements to the marital residence. (See Exhibits VVV-Recap and Exhibits BBB-MMM, UUU and WWW.) The Court further finds that Defendant Cathleen V. Carr therefore invested a total of $141,807.98 of her separate, premarital funds in the acquisition and rehabilitation of the Fairmount property, which residence was sold in October, 1993 and netted $117,430.27 (Exhibit 30). The court further finds that the $117,430.27 net proceeds from the Fairmount sale were deposited, subject to further order of this Court, into two (2) escrow accounts at Society - 7 - appellant's assignment of error moot as the court's December 21, 1993 order no longer constitutes an "award" of fees in favor of defendant Carr and against appellant as the fees were paid with Carr's money. Hence, if there is no "award" of fees, the issue of "reasonableness" does not arise and appellant cannot complain of 4 prejudicial error with respect to the December 21, 1993 order. Moreover, the court's Judgment Entry of Divorce provides in relevant part that: IT IS FURTHER ORDERED, ADJUDGE AND DECREED that any issue as to interim fees previously awarded to Defendant National-Bank (one in the name of Leonard A. Russell in the amount of $58,715.13-Account #20005123875, and one in the name of Cathleen [sic] v. Carr in the amount of $58,715.14 - Account #0005123904). The Court further finds that all of the funds in both Society National Bank accounts are funds directly traceable to Cathleen [sic] v. Carr's premarital, separate property. Therefore, those funds are declared to be Defendant's separate premarital property and not the property of Plaintiff Leonard A. Russell. The balance of funds in Society National Bank should be returned to her as her separate, premarital property. (Vol. 2518, Pgs. 876-877) 4 We further note that the appellant had the opportunity to challenge the trial court's finding that defendant, Carr was entitled to receive 100% of the proceeds from the sale of the residence by supplementing the record with trial transcripts and or exhibits pursuant to App.R 9(B) as he was in receipt of the court's final judgment entry in December of 1994 nearly six months prior to the review date of this appeal. However, he failed to do so. Hence, we not only find appellant's assignment of error to rendered moot by the trial court's findings of fact, we expressly overrule it on the merits based upon the presumption of regularity which attaches to lower court proceedings in the absence of a record exemplifying the error on appeal. See, Knapp v. Edwards Laboratories (1980), 61 Ohio St.3d 197. - 8 - Cathleen V. Carr is moot in that said interim fee award was paid with Defendant's own premarital property and the issue of an attorney fee and expense award for the entire litigation is now finally determined by this Court. (Vol. 2518, Pgs. 844-845, December 21, 1994) Hence, if appellant takes issue with the court's ultimate disposition with respect to fees, he will have to appeal from the judgment entry of divorce journalized on December 21, 1994. For the foregoing reasons, the trial court's December 21, 1993 order finding appellant in contempt for failure to pay temporary support in the amount of $6,881.64 is affirmed. It is so ordered. - 9 - It is ordered that appellant pay 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 Common Pleas Court, 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. NAHRA, J., AND O'DONNELL, J. CONCUR ANN DYKE PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .