COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68197 : CHERYL GILLESPIE : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : GEORGE GILLESPIE : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MARCH 21, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Division Common Pleas Court Case No. D-202056 JUDGMENT: Affirmed in part, Reversed and Remanded in part. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOSEPH G. STAFFORD, ESQ. DONNA RAMSEY-CAPUTO, ESQ. JOHN J. DYER, ESQ. 13451 Pearl Road 100 Courthouse Square Strongsville, Ohio 44136 310 Lakeside Avenue Cleveland, Ohio 44113 - 3 - PATRICIA ANN BLACKMON, P.J.: George Gillespie, defendant-appellant, appeals a decision from the trial court's findings of fact and conclusions of law rendered in a divorce action filed by Cheryl Gillespie, plaintiff-appellee. 1 George Gillespie assigns nine errors for our review. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court in part and reverse it in part. The apposite facts follow. Cheryl and George Gillespie were divorced in 1992. The parties agreed that George Gillespie was to pay $252.31 per month as child support for each of the couple's two children. They also agreed to divide George Gillespie's employee benefits equally by a Qualified Domestic Relations Order (QDRO) from July 8, 1984 through July 8, 1992. George Gillespie agreed to pay the couple's debt to the East Ohio Gas Credit Union and the Metro Health Medical Center. The court determined the issues of temporary spousal support arrearages, attorney fees, and property division. The trial court ordered George Gillespie to pay $255.00 per month in spousal support for forty-eight months or until Cheryl Gillespie's remarriage or either party's death. Cheryl Gillespie was awarded her personal belongings as well as the refrigerator, washer, dryer, microwave oven, rocker, children's bedroom furniture and toys. George Gillespie was also ordered to pay Cheryl Gillespie $5000 in legal fees as well as court costs. George Gillespie was ordered to 1 See Appendix. - 4 - name the couple's children as irrevocable beneficiaries on his employer-issued life insurance policies. In Gillespie v. Gillespie (June 30, 1994), Cuyahoga App. No. 65518, unreported, George Gillespie appealed the trial court's decision. This Court remanded the case to the trial court and ordered: the trial court to issue specific findings of fact and conclusions of law; to reduce its support order to no more than 55% of George Gillespie's net wages in order to comply with R.C. 3113.21(D)(1)(a); to specify the dates of the marriage; to enumerate the marital debts; and to modify its journal entry to reflect that the couple's children should be named as beneficiaries to George Gillespie's employer-issued insurance policies only until they reach the age of majority or graduate from high school, whichever is later. Upon remand, the Court issued its findings of fact and conclusions of law on October 20, 1994. The Court found the duration of the marriage was from April 1979 to July 8, 1992. The trial court found George Gillespie agreed to pay a total of $504.62 per month plus poundage as child support for the couple's two 2 children. The Court also found that George Gillespie was $14,250.50 in arrears on temporary support and ordered him to pay the arrearage at the rate of $90.00 per month. George Gillespie was ordered to pay Cheryl Gillespie $255.00 2 Although the court's journal entry reads $252.31 per month plus poundage, both parties agreed in oral argument that George Gillespie was ordered to pay $252.31 for each child or a total of $504.62. - 5 - per month for forty-eight (48) months as spousal support. The Court found he was $3000.00 in arrears on temporary spousal support payments and ordered him to pay $10.00 per week plus poundage toward the arrearage. The Court also ordered George Gillespie's employee benefits to be divided equally between the parties by a Qualified Domestic Relations Order (QDRO) from the period of time of July 8, 1984 through July 8, 1992. With respect to the parties' marital debts, the trial court issued the following finding of fact: The Court further finds that the Plaintiff testified that currently the only marital debts are medical bills in the approximate amount of $350.00 which were incurred for children's clothing. On the issue of attorney fees, the Court found Cheryl Gillespie's attorney fees totaled $10,025.50 and issued the following findings: The Court further finds that the attorney fees were fair and reasonable pursuant to Swanson vs. Swanson (1979), 48 Ohio App.2d 85, and Local Rule 21. Counsel for the Plaintiff is an experienced domestic relations attorney and his fees were reasonable pursuant to the standards of this Court. The Court further finds that the Defendant should pay $5000.00 of the Plaintiff's attorney fees. After his objections to the form of the journal entry were overruled, George Gillespie filed this appeal. In his first and second assignments of error, George Gillespie argues the trial court erred and abused its discretion in awarding - 6 - attorneys fees to Cheryl Gillespie because he is unable to pay the fees and there was no evidence introduced to prove the reasonableness of the fees. A trial court's award of attorney fees will not be disturbed absent a clear showing of abuse or prejudice by the trial court. Birath v. Birath (1988), 53 Ohio App.3d 31,39. Under Loc.Dom.Rel. R. 21, a party seeking attorney fees must describe the services rendered including the time spent and the hourly rate requested, present testimony about the complexity of the case, list the attorney's years of experience, and present evidence of the parties' respective income and expenses. George Gillespie argues the trial court failed to conduct a hearing on the issue of attorney fees. However, our review of the record indicates a handwritten note by the trial court dated 9/4/92 which reads as follows: Hearing on atty fees had in Gillespie Case No. D205056. Both Stafford and Caputo present. Stipulate to submitting fee bill. [Defendant] attorney given leave to file supl. brief. Briefs due 9/14/92. George Gillespie admits the parties met in chambers on the issue of attorney fees. The record contains an itemized bill from Cheryl Gillespie's attorney listing the services rendered and the time spent. Although he claims no other evidence was presented on the issue of fees, the trial court indicates otherwise in its journal entry which indicates that "the court took evidence on the issue of attorney fees pursuant to Local Rule 21." Because the record does not contain a transcript of the in-chambers hearing, we - 7 - must presume regularity in the proceedings below. Consequently, George Gillespie's assignments of error are overruled. In his fourth assignment of error, George Gillespie argues the trial court erred in finding that Cheryl Gillespie was unable to work because the couple's children were severely ill. Cheryl Gillespie testified she has difficulty maintaining her class schedule due to the illnesses of the children and misses as many as three weeks per quarter. She stated her intention is to secure full time employment when she completes her course studies. The Court was presented with competent, credible evidence that Cheryl Gillespie would have considerable difficulty maintaining a job due to her children's illnesses. Accordingly, we overrule George Gillespie's fourth assignment of error. George Gillespie also claimed the trial court's spousal support order violated R.C. 3113.21(D)(1)(a) and Section 303(b) of the Consumer Credit Protection Act, 15 U.S.C. 16573(b), which provide that the amount to be withheld from an obligor's personal earnings must not exceed 55% of the obligor's earnings where the obligor is paying support for more than one family. In the first appeal of this case, this Court determined that no more than $1083.36 could be withheld from George Gillespie's earnings. In this case, the total amount withheld was $1310.37 ($420.75 in child support to the children of his first marriage + $504.62 in child support to his children with Cheryl Gillespie + $90.00 in child support arrearages + $255.00 to Cheryl Gillespie for spousal support + $40.00 in spousal support arrearages). Because the trial - 8 - court failed to obey the Court of Appeals' order to limit the total support award to no more than 55% of George Gillespie's disposable earnings, we again remand this case to the trial court with instructions to modify the award to comply with the applicable statute. In his third, fifth, sixth, seventh and eighth assignments of error, George Gillespie argues the trial court abused its discretion in its award of spousal support, its allocation of the parties' marital debt, and its division of marital property. George Gillespie raised these issues in the first appeal of this case, but the Court of Appeals ruled that it could not address these issues because the trial court failed to make adequate findings of fact. Specifically, the Court of Appeals ruled the trial court erred in failing to make specific findings of facts as to the parties' income and expenses, the dates of the marriage, and the number and amount of marital debt. We conclude the trial court's findings of fact and conclusions of law did not fully comply with the Court of Appeals' mandate. The trial court failed to state the accrual and termination date of the marital debts or to properly enumerate the marital debts for which George Gillespie was found responsible. The Court's finding of fact #18 reads as follows: The Court further finds that the Plaintiff testifies that currently the only marital debts are medical bills in the approximate amount of $350.00 which were incurred for children's clothing. The Court's finding of fact with respect to the parties' - 9 - marital debt is confusing and contradictory and does not afford us with a sufficient explanation of how the trial court arrived at its decision with respect to the allocation of the marital debts. In addition to the trial court's complete failure to address the issue of the accrual and termination dates of the parties' marital debts, this finding of fact fails even to clearly identify what is a debt. We also conclude the trial court's findings of fact and conclusions of law were inadequate with respect to the issue of property division. The trial court awarded Cheryl Gillespie the refrigerator, washer, dryer, children's furniture, children's stereo, toys, entertainment stereo, microwave, and oak rocker. The Court found that the washer and dryer were gifts to Cheryl Gillespie for Christmas and should remain as her separate property. However, the Court failed to make any further findings of fact listing the parties' marital property as opposed to their separate property. When reviewing a trial court's division of marital property, we must apply an abuse of discretion standard. deLevie v. deLevie (1993), 86 Ohio App.3d 531,538. However, without information about what property was involved, we are unable to determine whether the Court's property division was unreasonable, arbitrary, or unconscionable. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,219. The Court also failed to comply with the Court of Appeals' mandate to determine to dates of the marriage. In its findings of fact, with respect to spousal support, the Court stated that "the duration of the parties' relationship and the inability of the - 10 - Plaintiff to properly provide support for herself dictates that the Defendant should have an obligation to assist the Plaintiff for a period of time." On remand, the Court found that the parties were married in April 1979; the findings of fact provide us with no information about how it arrived at that date. Although the parties stipulated that a common-law marriage existed between them, the record does not contain any stipulation as to the duration of the marriage. Because the duration of the marriage is a relevant factor for the Court's consideration in making its spousal support determination under R.C. 3105.18, the trial court erred in failing to take evidence on this issue. Therefore, we must remand this case to the trial court with instructions to hear additional evidence on the issue of the duration of the marriage. The trial court is ordered to issue a specific finding as to the date of the marriage and must state the facts upon which its finding is based. George Gillespie's third, fifth, sixth, seventh, and eighth assignments of error are well taken. Finally, George Gillespie argues the trial court erroneously approved a judgment requiring George Gillespie to maintain the couple's minor children as beneficiaries of his employer-issued life insurance policies. We conclude this assignment of error is well taken. In the prior appeal of this case, this Court ordered the trial court to amend its journal entry to specify that the children must be named as beneficiaries on the employer-issued life insurance policies only until they reach the age of majority or graduate from high school, whichever is later. Since the trial - 11 - court failed to modify the journal entry as ordered, we remand this case to the trial court with instructions to make the required modification. George Gillespie's ninth assignment of error is well taken. This case is hereby remanded for the issuance of additional findings of fact with respect to the duration of the marriage, the parties' separate property, marital property, and marital debts. The trial court is hereby ordered to modify its journal entry to specify that the parties' minor children must be named as irrevocable beneficiaries on George Gillespie's employer-issued life insurance policies only until they graduate from high school or until they reach the age of majority, whichever is later. The trial court is also ordered to modify its support order to comply with R.C. 3113.21(D)(1)(a) and Section 1673(b)(2), Title 15, U.S.Code. Judgment affirmed in part, reversed and remanded in part. - 12 - It is ordered that Appellant and Appellee share 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 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. SARA J. HARPER, J., and ANN DYKE, J., CONCUR. PATRICIA ANN BLACKMON 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 announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. - 13 - APPENDIX ASSIGNMENTS OF ERROR I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING ATTORNEY'S FEES TO THE PLAINTIFF WHEN THE DEFENDANT CLEARLY IS UNABLE TO PAY SAID FEES AND THERE WAS NO EVIDENCE INTRODUCED TO PROVE THE REASONABLENESS OF SAID FEES. II. THE TRIAL COURT ERRONEOUSLY FOUND THAT "THE COURT TOOK EVIDENCE ON THE ISSUE OF ATTORNEY'S FEES PURSUANT TO THE LOCAL RULE 21". III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING SPOUSAL SUPPORT TO THE PLAINTIFF AND DID NOT PROPERLY APPLY THE FACTORS ENUMERATED IN R.C. 3105.18 WHEN THE DEFENDANT HAS NO ABILITY TO PAY SPOUSAL SUPPORT AND THE AMOUNT ORDERED IS IN EXCESS OF 60% OF DEFENDANT'S WAGES WHEN COMBINED WITH HIS CHILD SUPPORT ORDERS. THE TRIAL COURT FURTHER ERRED IN FAILING TO COMMENCE SPOUSAL SUPPORT EFFECTIVE AUGUST 1, 1992. IV. THE TRIAL COURT ERRONEOUSLY FOUND THAT PLAINTIFF WAS UNABLE TO WORK BECAUSE THE MINOR CHILDREN ARE SEVERELY ILL AND SUCH FINDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. V. THE TRIAL COURT ERRONEOUSLY DETERMINED THAT THE PARTIES WERE MARRIED BY COMMON LAW IN APRIL OF 1979 WHEN THERE WAS ABSOLUTELY NO EVIDENCE TO SUBSTANTIATE THIS. VI. THE TRIAL COURT ERRED IN MANDATING THAT DEFENDANT PAY ALL MARITAL DEBTS WHEN HE ALREADY ASSUMED MEDICAL BILLS FOR THE MINOR CHILDREN IN THE SUM OF $15,712.00, AND OTHER OUTSTANDING MEDICAL BILLS FOR THE CHILDREN, AND THE BULK OF THE ADDITIONAL MARITAL DEBT WAS INCURRED BY PLAINTIFF AFTER THE SEPARATION. THE TRIAL COURT ERRED IN NOT STATING THE ACCRUAL AND TERMINATION DATE OF THE MARITAL DEBTS ENUMERATING THE MARITAL DEBTS FOR WHEN THE DEFENDANT WAS FOUND RESPONSIBLE. - 14 - VII. THE TRIAL COURT ERRONEOUSLY FOUND THAT "CURRENTLY THE ONLY MARITAL DEBTS ARE MEDICAL BILLS IN THE APPROXIMATE AMOUNT OF $350.00, WHICH WERE INCURRED FOR CHILDREN'S CLOTHING". (sic) VIII. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING ADDITIONAL PERSONAL PROPERTY TO THE WIFE WHEN SHE HAD ALREADY TAKEN MANY ITEMS FROM THE MARITAL HOUSEHOLD; THE APPLIANCES WERE THE ONLY ONES TO WHICH DEFENDANT HAD ACCESS; AND PLAINTIFF HAD ACCESS TO THE APPLIANCES SHE DESIRED. IX. THE TRIAL COURT ERRED IN APPROVING A JUDGMENT CONTAINING DEFENDANT'S RESPONSIBILITY TO MAINTAIN LIFE INSURANCE POLICIES WITH THE CHILDREN AS THE IRREVOCABLE BENEFICIARIES WHEN .