COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71162 THOMAS L. MEROS : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION PEGGY MEROS : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION MAY 15, 1997 CHARACTER OF PROCEEDING Appeal from Court of Common Pleas Domestic Relations Division Case No. D-175281 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: FORD L. NOBLE, ESQ. PEGGY MEROS, PRO SE 950 Standard Building 23312 Roger Road 1370 Ontario Street Euclid, Ohio 44123 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Plaintiff-appellant Thomas L. Meros (husband) appeals from an order of the Domestic Relations Court overruling his motion to dismiss motions of his ex-wife, defendant-appellee Peggy Meros (wife), to hold him in contempt for child support arrearages. Plaintiff contends the wife's motions should have been summarily dismissed because of her failure to attend the first day of the hearing on the motions. Plaintiff also challenges the award of attorney fees of $7,856.10 to his wife when she failed to prevail on any of her motions. We find no reversible error and affirm for the reasons hereinafter stated. The parties were married on July 27, 1974. Two children were born of the marriage. Following the husband's instigation of divorce proceedings, the parties entered into an in-court settlement on December 3, 1987 resolving all issues relating to divorce, child custody, visitation and support. The judgment entry finalizing the divorce was journalized on December 30, 1987. This did not end the matter and various post decree issues were contested including failures to maintain child support and attorney fees. These issues were ultimately appealed to this Court, which affirmed the trial court's judgment in Meros v. Meros (Nov. 14, 1991), Cuyahoga App. No. 59346, unreported (Meros I). Disputes between the parties apparently continued. The instant matter began with the filing on August 10, 1992 of four motions by the wife to hold the husband in contempt for being - 3 - in arrears on child support and to increase child support. On September 25, 1992, the husband filed his own motion to reduce child support. After discovery, including depositions and the exchange of documents, the motions proceeded to hearing on November 29, 1994 before a referee, continued on November 30, 1994 and March 8-10, 1995. However, on November 29, 1994, over objection of the husband's counsel, the referee commenced the hearing on the motions in the absence of the wife. The wife was represented by counsel. The plaintiff made an unsuccessful oral motion on the record to dismiss the wife's pending motions for her failure to appear and subsequently filed a similar written motion to dismiss, which was also overruled. The hearing proceeded despite the absence of the moving party. Apparently, the wife appeared on the second day (November 30) and, as far as the record discloses, continued to attend on the subsequent hearing days. On September 12, 1995, the referee issued her report and recommendations finding that the husband had, in fact, overpaid his child support by $3,974, found him in contempt for failing to post a $1,000 bond with CSEA and overruled the wife's motions to increase child support. The referee reduced the amount of child support and recommended an award of attorney fees to the wife. Upon review of the referee's recommendations and the husband's objections, on March 21, 1996, the trial court sustained the objections in part, found the husband was not in contempt and held - 4 - that the husband had substantially complied with his child support obligations. The court stated: "The issue of attorney fees shall be reviewed by the Referee who shall issue findings and a recommendation in light of the above ruling of the Court." On April 23, 1996, the referee filed an amended supplemental report recommending that the husband should pay a share of defendant-wife's attorney fees in the sum of $7,856.10. On July 25, 1996, the trial court overruled the husband's objections and, after credit for the child support overpayment, ordered the husband to pay $4,613.44 of the wife's attorney fees as additional child support. A timely notice of appeal from these orders followed. Appellant-husband has filed a partial transcript of three pages recording his objection to proceeding with the November 29th motion hearing. Appellee-wife has not filed a brief herein and by letter dated December 4, 1996, her trial counsel notified the Court that he was not representing her on this appeal. We will address plaintiff's assignments of error in the order presented. - 5 - I. THE TRIAL COURT ERRED IN NOT DISMISSING THE PENDING MOTIONS AT THE COMMENCEMENT OF THE HEARING WHEN THE APPELLEE, AS THE MOVANT, DID NOT ATTEND THE TRIAL/HEARING. A. THE TRIAL COURT ERRED IN PERMITTING AN ATTORNEY, WITH WHOM THERE IS NO JUSTICIABLE CONTROVERSY, TO REPRESENT AN ABSENT CLIENT, WHO HAS BROUGHT THE ACTION WHICH WAS THE SUBJECT OF THE HEARING OR TRIAL. B. THE TRIAL COURT ERRED IN FOLLOWING A LOCAL RULE THAT VIOLATES THAT CONSTITUTION OF THE STATE OF OHIO, AND THE CONSTITUTION OF THE UNITED STATES, AND WHICH VIOLATED THE PLAINTIFF/ APPELLANT'S RIGHT TO DUE PROCESS OF LAW. Plaintiff contends that because the defendant-wife was not present at the first day of the hearing on November 29, 1994, although she was represented by counsel, the trial court should have dismissed her pending motions with prejudice for failure to prosecute under Civ.R. 41(B)(1), which states as follows: Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim. We are not convinced that Civ.R. 41(B)(1) applies to the facts at hand. It literally governs dismissal of a plaintiff's "action or claim" for failure to prosecute after notice. However, the plaintiff-husband here attempted to invoke the rule to dismiss the defendant-wife's motions. There is no record of notice given. Plaintiff does not cite any case squarely on point and our own research is unavailing. - 6 - It is doubtful that motions to modify child support should be resolved with prejudice without a hearing or for pleading deficiencies. The interests of children would dictate a hearing in which the trial court can make the necessary determination as to whether changed circumstances warrant a modification of child support. Wogoman v. Wogoman (1989), 44 Ohio App.3d 34, 37; Bright v. Collins (1982), 2 Ohio App.3d 421, 423. We also note that the rule is permissive, not mandatory, and for failure to prosecute the trial court may dismiss an action or claim. Nor do we find that Loc.R. 4(A) of the Division of Domestic Relations for Cuyahoga County is in conflict with Civ.R. 41(B)(1) as plaintiff-husband contends. Loc.R. 4(A) does not recommend dismissal of an action where a party personally fails to appear. The rule specifically provides that a party may appear at a scheduled trial or hearing by way of counsel. Dom. Rel.Loc.R. 4(A) provides: Nonappearance. If a party seeking relief fails to appear on the scheduled trial or hearing date, either in person or by counsel, the Court may enter an order dismissing the action for want of prosecution. If the other party fails to appear, either in person or by counsel, and the party seeking relief does appear, the Court may allow the case to proceed and hear and determine all matters. Defendant in the case below was properly represented by counsel, therefore, the referee correctly allowed the matter to proceed. Plaintiff cites Allstate Ins. Co. v. Rule (1980), 64 Ohio St.2d 67 for the proposition that when the plaintiff fails to - 7 - appear for a hearing, Civ.R. 41(B)(1) limits the court's options to either granting a continuance or, after notice to the party's counsel, dismissing the case. Thus, plaintiff argues the trial court erred in proceeding with the hearing in the face of defendant's absence and should have continued the hearing or dismissed defendant's motions instead. We disagree. Allstate dealt with the situation where the party and his counsel were both absent from the hearing. In that case, the party had, within the meaning of Civ.R. 41(B), "failed to prosecute" his claim. Allstate is distinguishable from the present case where defendant's counsel attended the hearing and apparently pursued her motions on cross-examination of the plaintiff husband. Here, defendant was represented at the hearing, and did not fail to prosecute her claim. Under the circumstances, Civ.R. 41(B) was not implicated and the proper procedure was to permit defense counsel the opportunity to present defendant's case. See Brown v. Best (1974), 44 Ohio App.2d 82. In any event, apparently defendant's absence from the first day of a five-day hearing did not delay the presentation of evidence or the conduct of the hearing. Plaintiff acknowledges the wife was present on the second day of the hearing. (Aplt's Brf. at 8, 14). Defense counsel was present on the first day and called plaintiff on cross-examination in support of the wife's pending motions. Since we do not have a full hearing transcript, we can not determine at what point the wife appeared, nor can we determine - 8 - that plaintiff was prejudiced by defendant's first day absence. Furthermore, since plaintiff prevailed on the defendant's motions, we doubt that he has standing to claim prejudice from her absence. We find no abuse of discretion in the referee going forward on the pending motions under these circumstances. Plaintiff's Assignment of Error I is overruled. II. THE TRIAL COURT ERRED IN GRANTING ATTORNEY FEES WHEN THERE WAS NO BASIS IN LAW OR IN FACT FOR GRANTING ATTORNEY FEES. Plaintiff essentially contends that defendant was not entitled to an award of a portion of her attorney fees because she was unsuccessful on her four motions. The plaintiff overlooks that a portion of the wife's attorney fees were expended in defending (unsuccessfully it turns out) against plaintiff's efforts to reduce his child support payments. The plaintiff relies on this Court's decision in Farley v. Farley (1994), 97 Ohio App.3d 351 in support of its effort to overturn the trial court's award of partial attorney fees to the wife. That reliance is misplaced. We review allocation of attorney fees for an abuse of discretion. We find none here. Since we do not have a hearing transcript we have no way of knowing to what extent the evidence at the hearing supported the defendant's application for fees. We are limited to a review of the referee's "Amended/Supplemental" findings which state in full text as follows: The Referee finds that Defendant has filed a motion requesting attorney fees; that Defendant - 9 - has incurred a total expense of $11,094.05 for attorney fees and costs as a result of this action, based on 53.80 hours including 2.0 hours on March 10, 1995 at a billing rate of $200.00 per hour. An itemization of said legal services was admitted into evidence and marked as Defendant's Exhibit KK. The Referee finds that attorney fees in the amount of $10,445.00 are reasonable based on the following considerations: The hourly rate requested is commensurate with the customary fees in this locality and experience of Defendant's counsel. Further, the amount of time Defendant expended in prosecuting her motion to modify support and defending against Plaintiff's Motion to Modify Support was exceptional due to the uncooperative nature of the Plaintiff prior to trial and as a witness at trial; the issues which are normally routine and straightforward, were not, because discovery was tedious, deposition of Plaintiff prematurely ended due to talk of settlement, broken settlement, Plaintiff obtains counsel, trial held over five (5) days where Plaintiff/Movant failed to verify his income sufficiently, and that but for Defendant's efforts to secure a witness to provide the best evidence on Plaintiff's income, both motions may have been summarily defeated. In determining the amount of reasonable attorney fees for this case as it relates to Defendant's motion to modify support and in defense against Plaintiff's motion for same, consideration was given as to whether all the legal services rendered were necessary and fully compensable. Upon consideration of the relative financial position and earning abilities of the parties, the Referee finds and recommends that Plaintiff should pay Defendant's share of attorney fees in this case or $7,856.10 which includes all costs as and for additional child support; and that of this amount $3,242.66 should be deemed paid as of this date from the cumulative - 10 - overpayment of child support which occurred from May 14, 1991 to March 10, 1995. The remaining balance to be paid by Plaintiff to Defendant is $4,613.44. The Referee further recommends that Defendant is awarded judgment against the Plaintiff in the amount of $4,613.44, upon which execution may issue in 31 days after the journalization of the Court's order should Plaintiff fail to pay same. The trial court adopted the referee's recommendatons over the plaintiff's objectons. The principles that guide our review of the award of attorney fees are set forth as follows in McCoy v. McCoy (1993), 91 Ohio App.3d 570, 583: An award of alimony may be made in the form of an allowance for reasonable attorney fees. Swanson v. Swanson (1976), 48 Ohio App.2d 85, 89, 2 O.O.3d 65, 68, 355 N.E.2d 894, 897. Consideration must be given to the reasonableness of the fee award and to the criteria used in the granting of an alimony award. Id. at 90, 2 O.O.3d at 68, 355 N.E.2d at 898. On appeal, the only questions for inquiry are whether the factual conclusions upon which the trial court based the exercise of its discretion were against the manifest weight of evidence, or whether there was an abuse of discretion. Id.; Oatey v. Oatey (1992), 83 Ohio App.3d 251, 263, 614 N.E.2d 1054, 1061; Birath v. Birath (1988), 53 Ohio App.3d 31, 39, 558 N.E.2d 63, 71. It is clear from the referee's findings that the court discounted the defendant's fee application from $11,094.05 to $7,856.10; gave plaintiff a credit for support overpayments of $3,242.66, reducing the net amount of fee payments due to $4,613.44; that it was plaintiff-husband's uncooperative conduct - 11 - which prolonged and delayed a straight forward disposition of the issues; that the award took into consideration the relative financial position and earning abilities of the parties; that the legal services were necessary and reasonable; and that the hourly rates were commensurate with community standards. We find nothing unreasonable or unconscionable about these findings on their face and no reason to disturb them in the absence of a hearing transcript. Assignment of Error II is overruled. Judgment affirmed. - 12 - 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, J., CONCURS. O'DONNELL, J., DISSENTS. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .