COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67441, 67484, 67729 and 67730 ROSEMARY WATERS : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : VICTOR O. WATERS : OPINION : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division, No. D-191774. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Mary Boyle, Esq. 55 Public Square Suite 1490 Cleveland, OH 44113 For Guardian Ad Litem: Steven E. Wolkin, Esq. 1040 Leader Building 526 Superior Avenue N.E. Cleveland, OH 44114-1402 For Defendant-Appellant: Joseph G. Stafford, Esq. John J. Dyer, III, Esq. 100 Courthouse Square 310 Lakeside Avenue W. Cleveland, OH 44113 Victor O. Waters (pro se) P.O. Box 40122 499 Dover Court Road Bay Village, OH 44140 -3- DAVID T. MATIA, J.: Victor O. Waters, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, which adopted the report and recommendation of the domestic relations referee finding defendant-appellant in contempt of court and awarding Rosemary Waters, plaintiff-appellee, attorney fees in the amount of $1,785. Defendant-appellant assigns four errors for this court's review. I. THE FACTS Defendant-appellant and plaintiff-appellee were granted a divorce on December 18, 1989. Custody of the minor children, Benjamin and Joseph, was awarded to plaintiff-appellee subject to visitation rights of defendant-appellant. Defendant-appellant was ordered to pay $500 per month for each child and $1,000 per month to plaintiff-appellee for spousal support as well as a lump sum payment of $10,000 for plaintiff-appellee's attorney fees. During the pendency of the domestic relations action as well as after the parties' divorce, defendant-appellant, a medical doctor, has been either unwilling or unable to pay the child support and spousal support as agreed in the judgment entry of divorce. Defendant-appellant's failure to comply with the terms of the judgment entry has resulted in his imprisonment in the Cuyahoga County Workhouse for contempt of court. On December 22, 1992 defendant-appellant and plaintiff-appellee entered into an agreed judgment entry in which defendant-appellant -4- consented to pay plaintiff-appellee $3,000 per month to be allocated as follows: a) $1,000 toward admitted arrearage; b) $1,000 for spousal support; and c) $1,000 for child support. On June 2, 1993 plaintiff-appellee filed a motion to show cause requesting the trial court to require defendant-appellant to show cause why he should not be held in contempt of court for failure to pay spousal support, child support and arrearage as agreed in the December 22, 1992 judgment entry. On December 15, 1993 the domestic relations referee held a hearing on plaintiff-appellee's motion to show cause and defendant- appellant's motion to dismiss. Defendant-appellant failed to appear at the hearing although he was represented by counsel. Plaintiff-appellee and her counsel were present at the hearing. On January 5, 1994 the domestic relations referee issued her report and recommendation relative to the December 15, 1993 hearing in which she recommended that defendant-appellant be held in contempt of court for his failure to comply with his support obligations. The referee recommended further that defendant-appellant be sentenced to 60 days in the county jail. The execution of sentence was suspended provided defendant-appellant purge his contempt by doing both of the following: (1) comply with the court's order of December 22, 1992 journalized at Vol. 2093, pgs. 402-407, and all of its particulars; and -5- (2) pay plaintiff-appellee the sum of $11,000, plus poundage, no later than January 31, 1994 and the sum of $11,000, plus poundage, no later than March 31, 1994, both through the Cuyahoga Support Enforcement Agency. Plaintiff-appellee's motion to show cause requested an award of attorney fees incurred in prosecuting the motion. The trial court referee specifically reserved jurisdiction to consider plaintiff- appellee's request for attorney fees until March 4, 1994. At the March 4, 1994 hearing, plaintiff-appellee's counsel testified regarding the attorney fees incurred by plaintiff- appellee in prosecuting the motion to show cause. Plaintiff- appellee's counsel maintained that attorney fees in the amount of $2,280 were incurred in prosecuting the motion to show cause. Once again, defendant-appellant and his counsel failed to appear for the hearing. On March 17, 1994, the referee issued a report and recommendation relative to the March 4, 1994 hearing in which she recommended that defendant-appellant be ordered to pay to plaintiff-appellee the sum of $1,785 as attorney fees. The trial court overruled defendant-appellant's objections and approved the report of the referee finding defendant-appellant to be in contempt of court and ordering defendant-appellant to pay $1,785 to plaintiff-appellee for attorney fees. It is from this ruling by the trial court that defendant-appellant now appeals. -6- II. FIRST ASSIGNMENT OF ERROR Defendant-appellant's first assignment of error states: THE TRIAL COURT'S ORDER OF MAY 18, 1994, LOCATED AT VOL. 2379, PGS. 0199-0200 IS IMPROPER AND AN ABUSE OF DISCRETION AS THE TRIAL COURT FAILED TO ALLOW THE APPELLANT TO PURGE HIS CONTEMPT. A. THE ISSUE RAISED: OPPORTUNITY TO PURGE CONTEMPT Defendant-appellant argues through his first assignment of error that the trial court's order holding him in contempt of court constitutes an abuse of discretion since the trial court did not afford defendant-appellant the opportunity to purge himself of his contempt. Defendant-appellant maintains that the trial court's order amounts to an attempt to regulate future conduct and is therefore invalid. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR CONTEMPT In examining the propriety of the sanction imposed by the trial court, the threshold inquiry must be whether the contempt was criminal or civil in nature. Offenses against the dignity or process of the court, where the primary purpose of the punishment imposed is to indicate the court's authority by punishing the contemnor for disobedience, are criminal contempt. Violations which are primarily offenses against the party for whose benefit the order was made, and where the primary purpose of the punishment is remedial or coercive and for the benefit of the complainant, are civil contempt, and the sanction must afford the -7- contemnor the opportunity to purge himself of the contempt. Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250; State v. Kilbane (1980), 61 Ohio St.2d 201; Tucker v. Tucker (1983), 10 Ohio App.3d 251; Kassouf v. Pantona (Sept. 1, 1994), Cuyahoga App. No. 66196, unreported at 3. In Tucker v. Tucker, supra, the Franklin County Court of Appeals held that a contempt order suspending punishment on condition that the contemnor comply in the future with the terms of a pre-existing child support order did not properly allow for purging. In so holding, the court stated: *** Had the order provided for suspending the jail sentence on condition that plaintiff purge himself of his violation of the support order by paying the arrearage, it would have provided a true opportunity for purging. *** C. TRIAL COURT AFFORDED DEFENDANT-APPELLANT THE OPPORTUNITY TO PURGE HIMSELF OF CONTEMPT. Here, defendant-appellant incorrectly interprets the trial court's order as an attempt to regulate the future conduct of defendant-appellant. If that were true, the order would, in fact, be invalid. See McCray v. McCray (Oct. 16, 1986), Cuyahoga App. No. 51263, unreported. However, a review of the trial court's order demonstrates that defendant-appellant was given an opportunity to purge himself of his contempt of court by paying the accrued arrearages pursuant to the support order dated December 22, 1992. The contempt order does not regulate nor is it dependent upon defendant-appellant's future compliance with the prior court order. Any future violations of the support -8- order would require new notice, hearing and determination before further contempt sanctions could be imposed. See Grahaske v. Grahaske (June 16, 1993), Franklin App. No. 82-AP-948, unreported. Accordingly, defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT Defendant-appellant's second assignment of error states: THE TRIAL COURT DID NOT HAVE JURISDICTION TO AWARD APPELLEE ATTORNEY FEES. A. THE ISSUE RAISED: JURISDICTION Defendant-appellant argues that the trial court did not possess the requisite jurisdiction to impose an award of attorney fees against him and in favor of plaintiff-appellee. Defendant- appellant maintains that the January 5, 1994 referee's report, which was an interim order issued pursuant to Civ.R. 53(E)(7), expired as a matter of law on March 3, 1994 one day before the court conducted a hearing on the plaintiff-appellee's request for attorney fees. It is defendant-appellant's position that the trial court's jurisdiction to rule on the request for attorney fees ended on March 3, 1994. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR INTERIM ORDERS Civ.R. 53(E)7), which pertains to permanent and interim orders of court, states in part: An interim order shall not extend more than twenty-eight (28) days from the date of its entry unless, within that time and for good cause shown, the court extends the interim -9- order for an additional twenty-eight (28) days. Civ.R. 53(E)(7) does not permit the trial court to extend the term of an interim order beyond 56 days. C. TRIAL COURT HAD JURISDICTION. Here, a review of the record demonstrates that, while defendant-appellant correctly characterizes the trial court's entry dated January 5, 1994 as an interim order, defendant- appellant incorrectly maintains that the expiration of the order divested the trial court of jurisdiction to rule on plaintiff- appellee's request for attorney fees. The pertinent section of the trial court's interim order entered January 5, 1994 states: Jurisdiction is specifically reserved for consideration of plaintiff's request for attorney fees contained within her motion to show cause, and said issue shall be heard contemporaneously with other pending motions in this case, presently scheduled for March 4, 1994. Since the trial court clearly indicated that it was reserving jurisdiction on plaintiff-appellee's request for attorney fees, that request was not litigated on December 15, 1993 and was not a part of the January 5, 1994 interim order. As such, the trial court retained jurisdiction until such time as an evidentiary hearing could proceed on the reasonableness and necessity of an award for attorney fees. The interim order of January 5, 1994 related specifically to defendant-appellant's contempt of court citation and penalties if he failed to purge himself of his contempt, not the issue of attorney fees. -10- Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Defendant-appellant's third assignment of error states: THE TRIAL COURT'S AWARD OF ATTORNEY FEES IS AN ABUSE OF DISCRETION. A. THE ISSUE RAISED: ABUSE OF DISCRETION Defendant-appellant, through his third assignment of error, argues that the trial court abused its discretion in awarding attorney fees to plaintiff-appellee in the amount of $1,785, said sum representing plaintiff-appellee's attorney fees incurred in prosecuting the motion to compel. The trial court's award of attorney fees constitutes, according to defendant-appellant, an abuse of discretion since the trial court failed to take into consideration the ability of defendant-appellant to pay, reasonableness of the attorney fees and the novelty and skill of the questions involved. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW APPLICABLE TO THE AWARDING OF ATTORNEY FEES The awarding of attorney fees is within the sound discretion of the trial court. Swanson v. Swanson (1976), 48 Ohio App.2d 85, 90. In divorce or legal separation proceedings, the trial court may award reasonable attorney fees to either party at any stage of the proceedings, including, but not limited to, any -11- appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it determines that the other party has the ability to pay the attorney fees the court awards. Oatey v. Oatey (1992), 83 Ohio App.3d 251. Upon appeal the only questions for inquiry are whether the factual conclusions upon which this trial court based the exercise of its discretion were against the manifest weight of the evidence; or, whether there was an abuse of discretion. Swanson at 90. [T]ime expended is only one of the factors to be considered. The value of services may be greater or less than that which would be reflected by a simple multiplication of an hourly rate by time expended. We think that in divorce cases, as in probate cases, "[t]o employ the timeclock method alone as the test for legal services *** would certainly be improper and result in completely inadequate fees in large estates and disproportionately high fees in modest ones." Indeed, it is recognized that domestic relations cases tend to consume a considerable amount of time and that counsel must generally realize that he cannot always expect full compensation for the time so consumed. (Citations omitted.) Id. at 92. The trial court's decision to award attorney fees to plaintiff-appellee will not be disturbed on appeal unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: -12- The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING ATTORNEY FEES. Plaintiff-appellee initially sought $2,280 in attorney fees incurred in prosecuting the motion to show cause in the case sub judice. The trial court's award of $1,785 is approximately 20 percent to 25 percent less than the amount sought. The evidence relied upon by the trial court was sufficiently indicated on the record and in the referee's report. Plaintiff-appellee's counsel testified as to her normal hourly rate, her years of experience as an attorney and her specific experience in domestic relations court. In addition, the trial court took into consideration the itemized bill submitted by counsel for plaintiff-appellee subtracting unnecessary or unrelated charges. There is nothing in the record to indicate an abuse of discretion on the part of the trial court in its award of attorney fees to plaintiff- appellee. See Blakemore, supra. Defendant-appellant's third assignment of error is not well taken. -13- -14- V. FOURTH ASSIGNMENT OF ERROR Defendant-appellant's fourth assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO MAKE A DE NOVO REVIEW OF THE REFEREE'S REPORTS. A. THE ISSUE RAISED: DE NOVO REVIEW Defendant-appellant argues through his fourth and final assignment of error that the trial court abused its discretion by adopting the legal conclusions of the referee. Specifically, defendant-appellant contends that the referee's report did not contain relevant facts establishing a basis for the recommendation of the liquidation of the support arrearage or for the payment of attorney fees. Defendant-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW APPLICABLE TO DE NOVO REVIEW Civ.R. 53(E)(5) states: The report of a referee shall be effective and binding only when approved and entered as a matter of record by the court. The referee's findings of fact must be sufficient for the court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment order. The court may adopt the referee's recommendations about appropriate conclusions of law and the appropriate resolution of any issues. However, the court shall determine whether there is any error of law or other defect on the face of the referee's report even if no party objects to such an error or defect. The court shall enter its own judgment on the issues submitted for action and report by the referee. -15- In Nolte v. Nolte (1978), 60 Ohio App.2d 227, 231, the court stated in pertinent part: The report of a referee requires at a minimum a statement of the basis of his findings and recommendations in order that the trial court be able to make an independent analysis of the validity of the report before approving it and entering judgment. *** Thus, when a referee's report contains a conclusion regarding an issue in the case, the facts that lead to that conclusion must also be included in the report. *** The report must contain not only a recommendation of the court's order but also the facts presented to the referee upon which that order is based. *** The trial judge may not render judgment unless and until he has independently analyzed the case; he is in no position to make such an analysis unless the referee's report includes a statement of the facts relevant to the issue before the court. *** Whenever a referee's report contains a legal conclusion but omits the facts necessary to reach that conclusion, the judgment is voidable. The trial court must undertake the equivalent of a de novo determination, in light of any filed objections, when independently assessing facts and conclusions contained in the referee's report. The trial court does not apply the same manifest weight of the evidence standard used on review by the court of appeals. DeSantis v. Sollar (1990), 70 Ohio App.3d 226. Generally, in a domestic relations matter, a reviewing court should apply the abuse of discretion standard. Booth v. Booth -16- (1989), 44 Ohio St.3d 142, 144. As previously stated, an abuse of discretion connotes more than an error of law or judgment, it implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore, supra, at 219. Therefore, this court will not reverse the judgment below unless it determines that the trial court's decision implies an unreasonable, arbitrary or unconscionable attitude on the part of the trial court. When applying the abuse of discretion standard, a reviewing court is not free to substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135; Ericks v. Ericks (1992), 79 Ohio App.3d 657, 665. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION. In the case sub judice, the referee's reports contain sufficient factual findings to enable the trial court to make an independent analysis of the issues and to apply appropriate rules of law in reaching a judgment. Defendant-appellant offers no evidence to demonstrate that the trial court did not enter its own judgment on the issues submitted for action and report by the referee pursuant to Civ.R. 53(E)(5). Accordingly, defendant- appellant's fourth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -17- 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 Domestic Relations Division 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, C.J. and O'DONNELL, J., CONCUR. DAVID T. MATIA JUDGE 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 .