COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68341 GLORIA J. TOTH : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY CROSS-APPELLANT : v. : AND : : OPINION THOMAS J. TOTH : : : DEFENDANT-APPELLANT : CROSS-APPELLEE DATE OF ANNOUNCEMENT OF DECISION: AUGUST 24, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Division of Domestic Relations, Case No. DM-191398. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee Rita M. Jarrett, Esq. Cross-appellant: Thomas A. Kondzer, Esq. Kolick & Kondzer 24500 Center Ridge Road Suite 175 Westlake, Ohio 44145 For Defendant-appellant Wilson A. Leece II, Esq. Cross-appellee: 9840 Lorain Avenue Cleveland, Ohio 44102 - 3 - SWEENEY, JAMES D., J.: Defendant/appellant/cross-appellee Thomas J. Toth (date of birth February 19, 1926) appeals from the trial court's December 5, 1994 adoption of the referee's report and recommendation relative to a motion to show cause and for attorney fees. Plaintiff/appellee/cross-appellant Gloria J. Toth (date of birth October 5, 1940) cross-appeals from that same order of December 5, 1994. For the reasons adduced below, we affirm. A review of the record indicates that the parties were married in 1964 and their marriage dissolved in 1989. Two children, both of whom were emancipated no later than 1988, were born during the marriage. The separation agreement, which was drafted by the wife's counsel and incorporated into the final dissolution decree, contained the following provision regarding a life insurance policy through Ameritech: Husband is the owner of a life insurance policy in the amount of $190,000.00, through his employer, Ameritech. Husband shall maintain the policy in full force and effect and wife shall remain the full beneficiary. The Husband further agrees that he shall produce evidence that he is in compliance with this provision upon request by the Wife and that in the event that such evidence of compliance is not forthcoming, and it is necessary for the Wife to file an appropriate motion with the court having jurisdiction of this matter, the Husband shall reimburse Wife for all attorneys' fees incurred relative to the motion. Journal Vol. 1454, pages 336-337. - 4 - The separation agreement also contained the following provision with respect to the payment of legal fees: The parties agree that Husband shall be responsible for and pay all legal fees in connection with the negotiation and preparation of this agreement and any proceedings for divorce and/or dissolution. Journal Vol. 1454, pages 335-336. At the time of the dissolution, the husband had basic group term life insurance through the employer in the amount of $48,000.00, and had purchased supplemental group term life insurance through the employer in the amount of $192,000.00, for a total coverage of $240,000.00. According to the employer's benefits plan (See Joint Exhibit 1), of which the husband had a copy at the time of the dissolution (while the wife did not have such a copy), the employer provided, at no cost to an employee, basic group term life insurance coverage to an employee in an amount equal to one year's salary, which in the husband's case was $48,000.00. The benefits plan also permitted the employee to purchase additional supplemental term coverage up to an amount equal to four times the basic coverage, which in the husband's case cost him approximately $324.00 per month as a premium for the supplemental coverage purchased before he retired. The husband voluntarily retired from Ameritech in June of 1989 at the age of sixty-three (63), at which time he received a lump-sum pension distribution of approximately $250,000.00, of which the wife received 20% pursuant to the terms of the separation agreement. The husband also received his 401(k) plan proceeds in the amount of - 5 - $15,616.03, which the wife did not share in according to the terms of the dissolution decree. The basic term coverage from Ameritech is available and effective after the age of 65 for an employee who retires before the age of 65, as follows: 1. A 10% reduction is applied to the basic coverage for each year after the employee reaches age 65 (thus, the reductions of 10% per year start on the employee's 66th birthday); 2. The amount of basic coverage at age 70 and after would be 50% of the original coverage amount, regardless of an employee's status. The supplemental term coverage from Ameritech is available and effective under the following conditions: 1. If an employee continues working until any age and continues making contributions, the coverage is effective; 2. If an employee retires before age 65, coverage on the supplemental policy will continue only to age 65; 3. If an employee retires on a service or disability pension, supplementary coverage is available only to age 65; 4. If an employee retires before age 65, contributions for that supplemental coverage can be deducted from the employee's pension checks. In September, 1992, the wife's counsel checked with the husband's employer, Ameritech, as to the status of the husband's life insurance coverage. At that time it was discovered that supplemental life insurance coverage through the employer - 6 - sufficient to comply with the $190,000 decree requirement had been terminated by the husband on June 8, 1989 at the time of his retirement from Ameritech at the age of sixty-three. The wife, in July of 1993, then filed a motion to show cause (#229735-for the husband's failure to maintain the requisite level of life insurance), a second motion to show cause (#233336-for the husband's failure to pay attorney fees relating to the dissolution), and a motion for attorney fees (#234563) in pursuing 1 this post-judgment matter. The husband in turn filed a motion for attorney fees and expenses (#223679) for having to defend the wife's post-judgment motions. Following extensive briefing by the parties, the matters raised in these motions were heard before a referee of the trial court on May 6, 1994. On June 23, 1994, the referee filed her report. Following objections to the referee's report by both parties, the trial court, on December 5, 1994, overruled those objections and approved the recommendations of the referee, stating in pertinent part the following: Defendant/1's [Wife] Motion to Show Cause #229735 and Motion to Show Cause for Failure to Pay Attorney Fees #233336 are hereby granted. Defendant/2 [Husband] is found in contempt of Court for failure to comply with this Court's previous orders concerning maintenance of life 1 At the time of the wife's filing the motions herein in 1993, the husband was sixty-seven (67) years old. Thus, according to the terms of the Ameritech benefits plan, supplemental coverage automatically ceased at age sixty-five for the husband-former employee, while the basic coverage was automatically being reduced on a pro-rated basis. - 7 - insurance and payment of attorney fees. Defendant/1's Motion for Attorney Fees #234563 and request for fees contained in her Motion to Show Cause #229735 are hereby granted. Defendant/2 shall pay $5,685.85 towards Defendant/1's attorney fees. Defendant/2's Motion for Attorney Fees and Expenses #223679 is hereby denied. By reason of his contempt Defendant/2 is hereby sentenced to fifteen (15) days in jail, or in the alternative to perform not less than 100 hours of community service, in lieu of actual incarceration, ***. However, Defendant/2's sentence will be suspended and his contempt deemed purged provided that he: 1) pay the attorney fees in the amount of $2,487.50 incurred in the dissolution proceedings within 30 thirty days of journalization of this order and present proof thereof, or make immediate arrangements to pay them on terms acceptable to Defendant/1 ***, and 2) pay $5,685.85 to Defendant/1 for her attorney fees as additional spousal support, within 60 days of journalization of this order. Furthermore, Defendant/2 is hereby ordered to maintain Defendant/1 as beneficiary of the basic life insurance policy of coverage he has through Ameritech and provide proof of the beneficiary designation immediately to Defendant/1. [Explanation added.] * * * This appeal and cross-appeal followed. The first assignment of error presented by appellant-husband provides: THE COURT ERRED IN ADOPTING THE REFEREE'S RECOMMENDATIONS HOLDING APPELLANT IN CONTEMPT WHEN APPELLANT DID NOT WILLFULLY VIOLATE AN ORDER OF THE COURT. Appellant-husband argues that a finding of civil contempt was inappropriate where he did not willfully violate an order of court in that after age sixty-five, he was unable to purchase the - 8 - supplemental insurance in the Ameritech policy sufficient to maintain the $190,000 in coverage for the wife's benefit. Appellant's argument is flawed in several respects. First, proof of a willing or intentional violation of a court order is not a prerequisite to a finding of contempt. Pugh v. Pugh (1984), 15 Ohio St.3d 136. Second, the record is clear that Mr. Toth unilaterally cancelled his supplemental coverage on the Ameritech insurance policy at the age of sixty-three at the time he retired, even though he had agreed six months prior to retirement to maintain that coverage and could have done so until the age of sixty-five despite being voluntarily retired. From this violation of the dissolution decree, the court did not abuse its discretion in finding the husband to be in contempt of that court order. The first assignment of error by the appellant-husband is overruled. The second assignment of error presented by appellant-husband provides: THE COURT ERRED IN ADOPTING THE REFEREE'S RECOMMENDATION HOLDING APPELLANT IN CONTEMPT FOR FAILURE TO PAY ATTORNEY FEES WHEN THAT CLAIM IS DEFICIENT AS A MATTER OF LAW. As previously set forth in this opinion, the dissolution decree provided that the husband was obligated to pay the attorney fees relating to the dissolution proceedings. The husband admitted that he received a bill from the wife's dissolution counsel (Seeley, Savidge & Aussem Co., L.P.A.) dated March 23, 1993, in the - 9 - amount of $2,487.50. See Joint Exhibit 2. This billing statement details the type of services rendered, the date of those services, the amount of time (total-22.4 hours) charged for each service and total hourly charges ($2,370.50), the initials of the attorney responsible for the particular service, costs and advances totalling $162.00, payments on the cost account totalling $45.00, and current balance owed of $2,487.50 ($2,370.50 in service fees + 2 $117.00 in costs). Appellant-husband argues this billing statement is deficient because it does not comply with the holding in Farley v. Farley (Cuyahoga, 1994), 97 Ohio App.3d 351. In Farley the trial court made an award of attorney fees in a post-divorce proceeding and this court held that the mechanical procedure of simply multiplying the number of hours spent by a particular hourly rate to arrive at the amount of attorney fees requested "is deficient as a matter of law, because it is based on only one of the factors to be considered." Id. at 356 (Emphasis in the original). The factors mentioned in Farley relate to evidence submitted by the movant demonstrating the reasonable value of the services performed and itemized. See Oatey v. Oatey (1992), 83 Ohio App.3d 251; RC 3105.18; DR 2-106(B). Unlike Farley, in this case it must be remembered that the husband agreed to pay the attorney fees related 2 Although the statement does not contain a reference to the hourly rate, the hourly rate can be easily determined by dividing total hourly charges ($2,370.50) by the total time (22.4 hours) for an hourly rate of $105.82 per hour. - 10 - to the dissolution and put no limitation on the billable rate. If the husband was dissatisfied about the amount of fees incurred in the dissolution or the hourly rate of counsel (which was not provided in the dissolution decree), he should have pursued a timely appeal from the original dissolution decree or sought timely relief from that judgment when presented with the attorney's bill. From the record presented, it would appear that the trial court did not abuse its discretion in finding that the services performed were reasonable, that the husband was obligated to pay them, and that his failure to pay them constituted an act of civil contempt. The second assignment of error by the appellant-husband is overruled. The third assignment of error presented by appellant-husband provides: THE COURT ERRED IN ADOPTING THE REFEREE'S RECOMMENDATION AWARDING ATTORNEY FEES IN THE AMOUNT OF $5,685.85. In this assignment, the $5,685.85 figure represents the amount of attorney fees awarded to the wife in pursuing her post-judgment motions herein. The record indicates that the firm of Kolick & Kondzer represented the wife on these motions, submitting a sixteen page billing statement into evidence supporting the award. See Plaintiff's Exhibit 7. This billing statement is an itemized report of the description of the service provided, the date the service was provided, the initials of the person who provided the service (to wit, partner, associate, or law clerk's initials), the - 11 - hourly rate of the provider ($110/hour for partner, $90/hour for associate, and $25/hour for law clerk), the hours spent on the service broken down into increments of tenths of an hour, the charge for the service based on the hours spent and the hourly rate, and any costs, advances or payments. This statement was testified to by attorney Kondzer at the referee's hearing. R. 112- 119. The referee, applying the standard for awarding attorney fees announced in Swanson v. Swanson (Cuyahoga, 1976), 48 Ohio App.2d 85, stated the following in her report relative to this award of attorney fees: The Referee further finds that an award of attorney fees and expenses in the amount of $5,685.85 for those hours expended by counsel in prosecution of Defendant/1's [wife] motions is reasonable based upon the following considerations: 1. The issues were relatively straightforward but were complicated by having to obtain information from Ameritech's benefits department in Michigan, and because of Defendant/2's [husband] efforts to limit discovery (notwithstanding that Defendant/2's first motion for protective order was granted); 2. The hourly rate of $110.00, $90.00 and $25.00 is reasonable given the nature of pertinent services and fees customarily billed in this locality; 3. Counsel [attorney Thomas A. Kondzer] for Defendant/1 has been licensed to practice law for 19 years and is an experienced attorney who regularly practices in Domestic Relations Court devoting 30% of his practice to Domestic Relations matters; - 12 - 4. Defendant/2's failure to comply with a prior order of this Court required Defendant/1 to incur attorney fees to enforce such order. In determining the amount of reasonable fees for this case, consideration was given as to whether all the legal services rendered were necessary and whether under the facts of this case the amount of time expended on such services was fully compensable. The Referee further finds that Defendant/1's present salary is $28,860.00 annually and that no evidence was presented with regard to any source of income for Defendant/2 other than the fact that he received a lump sum upon retirement. Giving consideration to the relative financial positions of the parties as presented here, the Referee recommends that Defendant/2 pay $5,685.85 to Defendant/1 towards her attorney fees in this litigation. [Explanation added.] Referee report of June 23, 1994, at 7. From the record presented, we find no evidence to support the husband's assertions that this use of legal services by the wife was an attempt to punish, harass, coerce or intimidate Mr. Toth. See Farley, supra. Further, we find no abuse of discretion in the award of attorney fees under this assignment. The third assignment of error by the appellant-husband is overruled. The fourth, and final, assignment of error presented by appellant-husband provides: THE COURT ERRED IN ADOPTING THE REFEREE'S RECOMMENDATION DENYING APPELLANT'S REQUEST FOR ATTORNEY FEES IN THE AMOUNT OF $350.00. The billing statement presented by husband's counsel consisted of the following: - 13 - Preparation and filing: Motion for Protective Orders Motion for Consolidation Motion to Stay and Order 3.5 hours $100.00 @ hour $350.00 With regard to the attorney fees sought by the husband under this assignment, the referee made the following finding in her report at page 7: With regard to Defendant/2's [husband] Motion for Attorney Fees and Expenses Civil Rule 37(A)(4) #233679 filed September 20, 1993 which requests fees for defending against Defendant/1's [wife] discovery request, the Referee finds that Defendant/2 requests fees in the amount of $350.00 for the preparation and filing of the motions for protective orders, for consolidation, and to stay filed on September 20, 1993. The Referee notes that one of Defendant/2's motions for protective order was partially successful in limiting the scope of discovery. However, before filing these motions Defendant/2's counsel did not attempt to contact Defendant/1's counsel to attempt to resolve the matter without filing a formal motion. The Referee finds that Defendant/1's motions were justified and that circumstances make an award of expenses to Defendant/2 unjust. The Referee recommends that motion #233679 be denied. [Explanation added.] First, it must be noted that the Local Rules of Court for the Court of Common Pleas of Cuyahoga County, Domestic Relations Division, contain no mandate for counsel to contact opposing counsel and attempt to resolve a discovery dispute informally prior to counsel filing for protection from opposing counsel's discovery request. Cf Loc.R. 11(F) of the Court of Common Pleas of Cuyahoga County, General Division. - 14 - Second, the wife was within her rights in attempting to obtain the deposition of the husband in 1993, which resulted in the husband filing a motion for protective order/consolidation/stay, which protection was partially afforded by the trial court at a later hearing as to certain records and items of evidence sought by the wife as they were outside the scope of the wife's motion to show cause relative to the insurance obligation and the failure of husband to pay attorney fees. Based on the totality of the record, we conclude that the trial court did not abuse its discretion in denying husband's request for attorney fees regarding the preparation and filing of the motions at issue in 1993. The fourth assignment of error by the appellant-husband is overruled. We now turn our attention to the cross-appeal filed by the wife, which presents the following lone assignment of error: THE TRIAL COURT ERRED IN FAILING TO RESTORE TO MS. DIFRANCO A BENEFIT IN AN AMOUNT EQUAL TO THAT WHICH SHE WOULD HAVE HAD IF MR. TOTH HAD NOT DISOBEYED THE COURT ORDER. In this cross-assignment, the wife argues that the court erred in not ordering the husband to maintain life insurance in the amount of $190,000.00 through a policy other than Ameritech and naming the wife as the beneficiary of that policy. The referee stated the following in her report at pages 5-6: 3 Ms. DiFranco is the name currently used by the former Mrs. Toth. - 15 - Considering the evidence presented and upon reviewing the separation agreement as a whole, and the life insurance provision in light of the parties' testimony, the Referee believes that there was some intent to provide funds to Defendant/1 [wife] by way of life insurance proceeds in lieu of spousal support and/or as property division. For this reason the lack of disclosure by Defendant/2 [husband] concerning the actual terms of coverage is troubling. Defendant/2 may not have intentionally withheld information from Defendant/1; nonetheless documents were in his possession [the Ameritech benefits booklet] which would have made those terms clear, and he, better than Defendant/1, should have known what was contained in those documents. Page 10 of the separation states that each party has made full disclosure to the other and have relied upon the disclosed information. Had this information actually been divulged to Defendant/1 this issue would have received more information. Unfortunately for Defendant/1 however, the language employed in the agreement drafted by Defendant/1's attorney refers explicitly to the Ameritech policy of insurance and no other. Neither party testified about any other policy in existence. The Referee finds that the provision does not require that Defendant/2 maintain any other policy of insurance other than the one identified. The Referee notes the inequity Defendant/1 will claim should the Court decline to accept her arguments, if the terms of the parties' settlement was uneven. However, the issue before the Court concerns contempt, not the fairness of the settlement or whether a motion to vacate lies. Those issues were not litigated and the Referee makes no findings in that regard. Unfortunately for Defendant/2 the Referee does find that the provision explicitly requires Defendant/2 to maintain the Ameritech policy in effect with the wife as beneficiary, to produce evidence of his compliance at her request, and to reimburse her attorney fees should evidence of compliance not be forthcoming, a circumstance contemplated by the - 16 - parties. As early as June 1989 when Defendant/2 received his retirement benefits Defendant/2 knew supplemental coverage would not continue because he chose to stop purchasing it, and that he was not in compliance yet he never informed Defendant/1 even though they had only recently ended their marriage. Even though maintaining anything beyond basic coverage is now impossible for the Defendant/2 under the terms of this policy, he had the ability to comply with the Court order to maintain coverage from June 1989 until February 1991 (when he turned 65), and he purposely did not. The Referee finds that even though Defendant/2 survived to age 68 and the coercive aspect of a contempt finding for failure to maintain coverage is lost by the impossibility of performance, Defendant/2 flagrantly disobeyed a Court order and should justly be held accountable. The Referee finds that Defendant/2 should be held in contempt for his failure to strictly adhere to the separation agreement, insofar as possible, and should be ordered to reimburse Defendant/1 for all attorney fees incurred in connection with this motion to purge his contempt, as the parties provided in the last sentence of the separation agreement. [Explanation added](Emphasis added). "The trial court's authority to enforce a divorce decree is discretionary." Rohde v. Rohde (February 11, 1993), Cuyahoga App. No. 61757, unreported, at 7, citing Kelley v. Kelley (November 27, 1991), Cuyahoga App. No. 42805, unreported, at 6. The separation agreement was clearly limited to the husband being obligated to provide the life insurance through his policy with Ameritech. This agreement, which was drafted by the wife's counsel, makes no provision for the husband's retirement or continued employment or the purchase of additional/alternate coverage from another source should the Ameritech coverage become - 17 - unavailable for whatever reason. There is no evidence as to the state of the husband's present health or that the husband, at the age of sixty-nine, is able to obtain life insurance, or if he is able, at what cost. The trial court, in its order, rather than modifying the terms of the order by calling for alternate insurance coverage where none was contemplated gave effect to the plain language of the agreement which was still possible of performance, thereby leaving the wife in the regrettable position of being the beneficiary of the basic coverage remaining available on the Ameritech policy. The effect of the court order in not restoring the $190,000.00 in life insurance coverage to the wife was not an abuse of discretion. The cross-assignment of error is overruled. Judgment affirmed. - 18 - It is ordered that plaintiff/appellee/cross-appellant and defendant/appellant/cross-appellee equally share 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, Divison of Domestic Relations, 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. Exceptions. LEO M. SPELLACY, P.J., and JOSEPH J. NAHRA, J., CONCUR. JAMES D. SWEENEY 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 journalization, at which time .