COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67122 ELISSA CONEGLIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH A. CONEGLIO : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Domestic Relations Division Case No. 202876 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: NEAL LAVELLE, ESQ. I. BERNARD TROMBETTA, ESQ. 522 Leader Building 33595 Bainbridge Road #201 Cleveland, Ohio 44114 Solon, Ohio 44139 - 2 - DYKE, J.: The parties were married in 1964 and separated in 1984. Mrs. Coneglio filed for divorce in 1990. Four children were born of the marriage, three of which were emancipated at the time the complaint for divorce was filed. A hearing was held before a domestic relations referee on June 7, 1991. The parties stipulated to a division of assets and custody issues, leaving to the referee the issues of spousal support and attorney's fees. Appellant filed objections to the subsequently filed referee's report and recommendations. Appellant objected to an inequitable division of assets; an inflated spousal support of $325 per month for ten years; the requirement to have both Mrs. Coneglio and their minor child listed as beneficiaries on his life insurance; and, the award to Mrs. Coneglio of $2,000 in attorney's fees. The trial court sustained his objections without specifying which objections were sustained, nor the reasons why. Upon remand, the referee reallocated the proceeds from the sale of the marital home to split the marital assets fifty-fifty, although this was not the allocation stipulated to by the parties. Because this reallocation reduced Mrs. Coneglio's award by $10,500 and increased appellant's award by that same amount, Mrs. Coneglio's need and appellant's ability to pay were both enhanced. The referee therefore increased the attorney's fee awarded to Mrs. Coneglio to $5,000. - 3 - Further objections were filed on November 4, 1991. The domestic relations court overruled the objections and appellant filed the first notice of appeal to this court. This Court reviewed the proceedings and award of spousal support and attorney's fees. We found that the trial court's order sustaining appellant's first set of objections was ambiguous and did not state which objections were sustained, implying that all of the objections were well founded. Elissa Coneglio v. Joseph A. Coneglio (July 1, 1993), Cuyahoga App. No. 62974, unreported. We also found that there was no evidence to support the ten year duration of the spousal support award. The cause of action was remanded for a determination of the spousal support, its duration, and attorney's fees. Prior to the issuance of an opinion from this Court, Mrs. Coneglio filed several motions. The parties agreed to resolve these motions after the appeal was heard and an opinion rendered by this Court. The motions asked for increased spousal support and child support. Requests for attorney's fees were also filed. Following the remand from this Court, appellant filed a motion to recuse Judge Karner on the basis that she had made the mistakes in the first place and was not in a position to resolve those issues on remand. This motion did not have the requisite affidavit alleging any bias or prejudice on the part of the trial judge. A trial was held to gather evidence on the issues remanded from the appellate court and on the issues brought up by the - 4 - motions for support and attorney's fees. The order from the court following the trial found that Mrs. Coneglio is in need of support and that appellant has the ability to pay. The marriage lasted 27 years, during most of which Mrs. Coneglio was a housewife, raising four children. The court also found that Mrs. Coneglio has no marketable skills and will never make more than $15,000 - $17,000 per year. Appellant's income averages $40,000 per year plus the interest on the $100,000 inheritance he recently received. The evidence indicated that Mrs. Coneglio's needs will not terminate at any particular time, therefore the spousal support was awarded for an indefinite period of time. The court increased the spousal support to $500 per month until the death of either party, the remarriage of Mrs. Coneglio, or until further order of the court. The court ordered appellant to pay $400 per month in child support for the fifteen months remaining before the Coneglio's daughter graduates from high school. This amount is $60 less than the guidelines recommend because the court also ordered appellant to pay for his daughter's travel expenses to and from Connecticut when she comes to visit him. The court also ruled that appellant should maintain his daughter on his health care coverage and, as long as he remained current on his support obligations, he could claim her as a dependent for purposes of the tax exemption. The court reviewed the factors listed in R.C. 3105.18 to determine a proper award of attorney's fees. The court noted that Mr. Coneglio's income was two and a half times greater than Mrs. - 5 - Coneglio's income. The court also found that the hours and fees charged in this case were reasonable. A total of $19,569 accrued in attorney's fees for Mrs. Coneglio's lawyer, including the first hearing, the post-decree motions and the retrial of the case. The court specifically found that unless Mrs. Coneglio "is awarded a portion of her attorney's fees her ability to adequately protect her interests would be greatly jeopardized." (Journal Entry p. 22). The court awarded $13,000 in attorney's fees to Mrs. Coneglio, after assessing appellant's ability to pay. Appellant filed a timely notice of appeal from the trial court's decisions, asserting six assignments of error. I THE TRIAL COURT ABUSED ITS DISCRETION BY EXCEEDING ITS JURISDICTION AND THE SCOPE OF THE REMAND BY TRYING THIS CASE DE NOVO. Appellant argues that the appellate court did not order a new trial when the cause was remanded for further proceedings. The trial court exceeded its authority by retrying all of the issues. Appellant's argument is not well taken. This court remanded this cause of action for proceedings consistent with its opinion. This is a general order which allows the trial court to do that which is necessary to resolve the issues remaining. This includes gathering more evidence, especially on issues, such as the duration of spousal support, which we found to be without evidentiary support. The court properly took evidence on the issues of spousal support, duration of that support and - 6 - attorney's fees, not only pursuant to the remand, but also for purposes of ruling on the motions filed by Mrs. Coneglio while the appeal was pending. The trial court did not exceed its jurisdiction. Appellant's first assignment of error is overruled. II THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO RECUSE ITSELF. Appellant asserts that the trial court should have sent the case to the referee to correct the errors cited by the appellate court, rather than retrying the case itself. Appellant's assertion lacks merit. In order to effectuate the recusal of a judge from an action, a party must submit an affidavit to the clerk of the Supreme Court "setting forth the fact of the interest, bias, prejudice, or disqualification." R.C. 2701.03. This was not done in this case. No affidavit accompanied appellant's motion. Nor did appellant cite any evidence of bias, prejudice, interest or other type of disqualification to hear the case. Furthermore, it is a matter of discretion as to when a domestic relations judge submits an issue to a referee for hearing. Civ.R. 53(A). Judge Karner was the judge of record and well within her authority to hear evidence on the issues in this case. Appellant's second assignment of error is overruled. III THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING AND - 7 - INCREASING ATTORNEY'S FEES. Appellant claims that the attorney's fee award for Mrs. Coneglio was increased in error. It is his contention that the fee award could have been corrected based upon the original testimony and findings. The original recommendation of the referee awarded Mrs. Coneglio $2,000 in attorney's fees. Appellant argues that the trial court sustained appellant's objection to this award. The amended recommendation increased the fees to $5,000. After the appellate court remanded the case and the trial court retried the issue of attorney's fees, the award was further increased to $13,000. Appellant argues that his present earnings were improperly considered when adjusting the award when the only relevant factors were the parties' economic positions in 1991. Any added costs incurred in the trial, appeal or post decree motions should not be considered because this would be analogous to rewarding an unsuccessful litigant, according to appellant's argument. We are not persuaded by this argument. An award of alimony may include an allowance for reasonable attorney fees. A decision to award or not award attorney fees should not be interfered with absent a clear showing of abuse or prejudice by the trial court. Birath v. Birath (1988), 53 Ohio App.3d 31, at paragraph four of the syllabus. The appellate court found that the $5,000 award in Birath was not supported by the evidence. The hours expended by the attorney multiplied by the standard rate was $26,520. The court failed to explain how it reached the $5,000 amount. However, the trial court in the present case carefully - 8 - presented a clear analysis of the factors relied upon to support the $13,000 award of attorney's fees. Because Mrs. Coneglio's post-decree motions included requests for attorney's fees, the court properly considered the fees generated by the first trial ($6,435), the motions following the trial ($1,455), the appeal ($1,635), the post-decree motions ($4,620), and the retrial ($5,550). Under R.C. 3105.18(H), a court is permitted to award attorney's fees "if it determines that the other party has the ability to pay." Furthermore, this section requires the court to "determine whether either party will be prevented from fully litigating his rights and adequately protecting his interests if it does not award reasonable attorney's fees." R.C. 3105.18(H). The trial court specifically found that appellant had the ability to pay and that Mrs. Coneglio's ability to protect her interests would be compromised without the award. The trial court adduced evidence on each of the factors related in R.C. 3105.18(C)(1)(a) - (n), to determine the amount of a reasonable award. The court found that the parties had disparate incomes of $40,000 to $15,000 and that appellant's earning ability is approximately two and a half times greater than Mrs. Coneglio's earning ability. The court reviewed the parties' educational backgrounds and health. The court also found that the marriage was of long duration, twenty-seven years, and that the parties had enjoyed a modest middle-income standard of living during that - 9 - marriage. The court considered the relative assets and liabilities of the parties, including appellant's inheritance and potential executor's fee. The court also reviewed the tax consequences to the parties of the spousal support award. We can not find that the trial court abused its discretion in awarding attorney's fees to Mrs. Coneglio based upon the factors enumerated in R.C. 3105.18(C)(1) and the evidence adduced upon retrial. The motions and issue on remand from this Court were properly before the court to be decided on retrial. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ABUSED ITS DISCRETION IN ITS AMENDMENT OF THE SPOUSAL SUPPORT ORDER. Appellant argues that the trial court improperly examined his recent inheritance and executor's fee and the use he made of the proceeds from the marital property when the court retried the issue of spousal support. Appellant also asserts that the court's determination that the period of time be indefinite during which Mrs. Coneglio is entitled to support was excessive. The trial court properly considered appellant's financial position as it existed at the time of the retrial. Mrs. Coneglio had filed a motion to modify her spousal support during the time the appeal was pending. The court had retained jurisdiction to modify as required under R.C. 3105.18(E)(1). Furthermore, we do not find that the indefinite period of time is excessive. The trial court relied upon evidence that Mrs. - 10 - Coneglio is in her mid-fifties with no marketable skills. She is not susceptible to financial improvement by education at this point in her life and will only make $15,000 - $17,000 per year. The Ohio Supreme Court determined that spousal support could be awarded for an indefinite period of time given a situation like the one in the present case. Except in cases involving a marriage of long duration, parties of advanced age or a homemaker-spouse with little opportunity to develop meaningful employment outside of the home, where a payee spouse has the resources, ability and potential to be self-supporting, an award of sustenance alimony should provide for the termination of the award, within a reasonable time and upon a date certain, in order to place a definitive limit upon the parties' rights and responsibilities. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, at paragraph one of the syllabus. The trial court did not abuse its discretion in awarding the spousal support for an indefinite time period, subject to death of the parties, the remarriage of Mrs. Coneglio, or a substantial change in the circumstances of either of the parties. Appellant also complains that the trial court exceeded its authority when it increased the amount of support without a substantial change in Mrs. Coneglio's circumstances. R.C. 3105.18(E) allows a modification of spousal support if there is a determination by the court "that the circumstances of either party have changed." The court noted that the circumstances for appellant had much improved since 1991, the year of the divorce. The court then listed each of the ways in which - 11 - appellant's circumstances justified an increase in his spousal support payment: he had inherited $100,000 from his mother and was entitled to a $7,000 - $8,000 fee as her executor; appellant voluntarily increased his 401(K) savings from 6% to 10% of his income; appellant had only fifteen months remaining on his obligation to pay child support; and, finally, his income had increased from $28,000 in 1991 to $63,000 in 1992, the year after the divorce. We do not find that the trial court abused its discretion in awarding spousal support of $500 per month to Mrs. Coneglio. Appellant's fourth assignment of error is overruled. V THE TRIAL COURT ERRED AT LAW AND ABUSED ITS DISCRETION IN IMPOSING LIMITATIONS, NOT RECOGNIZED BY LAW, UPON DEFENDANT'S RIGHT TO SEEK A MODIFICATION OF THE SUPPORT ORDER. Appellant asserts that the court's imposition of a limitation on appellant's ability to seek a modification of the support order is contrary to R.C. 3105.18(F). The statute gives two other factors which could constitute a change in circumstances, besides the circumstance of any increase or involuntary decrease in wages. According to appellant's brief, the court stated that any change between $25,000 and $65,000 would not be considered a change in circumstances to justify a modification of the support order, without mentioning the possible changes in living expenses or medical expenses cited by the statute. Appellant argues that it was an abuse of discretion to limit the definition of a change in - 12 - circumstances. Appellant misreads the order of the domestic relations court. The court specifically reserved jurisdiction "to modify and review this spousal support order in the event of a significant change of circumstances that cannot be foreseen or anticipated." (Journal entry pp. 15-16). This statement comports with R.C. 3105.18(F) in that it is inclusive of any significant changes in the parties' circumstances. The order continues, defining what would constitute an increase or involuntary decrease in appellant's wages, given the evidence that he has significant control over his income and also the ability to defer compensation from one year to the next: The court is specifically finding, however, that modification cannot be based on only one year earnings, without other changes, for it is clear that Mr. Coneglio's income can range anywhere from $26,000.00 to $65,000.00 per year. The Court therefore finds that spousal support should not be modified downward should Mr. Coneglio's income fall to $25,000.00 a year unless other changes in circumstances are shown. The Court, in setting the spousal support order of $500.00 a month, is cognizant of the fact that there may be a period of time when Mr. Coneglio's income falls to the lower end of what he has made over the past eight (8) years. By the same token, the support should not be increased if Mr. Coneglio's income reaches the higher end of $65,000.00, unless other changes in circumstance are shown. Should, however, Mrs. Coneglio's situation improve and her earned income reach above $20,000.00 per year then the Court can revisit spousal support and make any modification then deemed appropriate. (Journal entry p. 16). Appellant's rights to seek modification of the spousal support order have not been limited by the above quoted order. The court clearly recognized the possibility of other changes in circumstance which could render the modification necessary. The qualification - 13 - of any increase or decrease in appellant's wages is supported by the evidence in the record and is not prohibited by any statutory provision or case interpretation thereof. Appellant's fifth assignment of error is overruled. VI THE FINDINGS OF FACT AND CONCLUSION OF LAW WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, CONTRARY TO LAW AND AN ABUSE OF DISCRETION. Appellant asserts that the court misinterpreted his earnings and erred in considering his executor's fee to determine that he had the ability to pay the increased attorney's fee award. Appellant also claims that the trial court erred in considering his pension and 401(K) plans to determine his ability to pay spousal support, child support and attorney's fees. He argues that any increases since the original findings of fact are irrelevant to the determination. Appellant asserts that the trial court mistakenly found that he had income for 1994 in the amount of $45,000. The evidence also failed to support the trial court's findings that appellant had expensive hobbies. Finally, appellant objects to the court's determination that the unilateral separation did not terminate the marriage, but that the 1991 date of the divorce decree was the actual date of termination. None of appellant's assertions has merit. Appellant is essentially asking this Court to retry the cause of action because he did not like the way the domestic relations court retried it. That is not our function. The trial court did - 14 - not abuse its discretion in interpreting appellant's earnings; considering his executor's fee; considering his pension plans; assessing his income for 1994; finding that he occasionally goes golfing; or in determining that the marriage ended in 1991, rather than the date of the separation in 1984. Evidence in the record from referee's findings of fact, the trial and stipulations by the parties supports each of the determinations by the court complained of in this assignment of error. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. We will not reverse the judgments of the domestic relations court when they are supported by some competent, credible evidence. Appellant's sixth assignment of error is overruled. The order of the trial court is affirmed. - 15 - 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 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. PATTON, C.J., AND HARPER, J., CONCUR ANN DYKE 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, at which time it will become the judgment and order of the court and time period for review will begin to run. .