COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72415 SHARON LEASURE : : Plaintiff-appellee : : : -vs- JOURNAL ENTRY : AND HOWARD LEASURE OPINION : Defendant-appellant : : DATE OF ANNOUNCEMENT : MARCH 12, 1998 OF DECISION CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. C.P. D-202534 JUDGMENT Affirmed in part, reversed in part and remanded. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Lisa R. Kraemer, Esq. John S. Salem, Esq. 310 Chagrin Plaza East Zashin & Rich 23811 Chagrin Blvd. 1490 Illuminating Bldg. Cleveland, Ohio 44122 55 Public Square Cleveland, Ohio 44113 MICHAEL J. CORRIGAN, J.: Appellant Howard Leasure appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. D-202534, in which the trial court overruled appellant's -2- motion to modify custody, found appellant in contempt of court for failure to pay child support and ordered appellant to pay the attorney fees of appellee Sharon Leasure in the amount of $2,500 as well as the guardian ad litem fees incurred in the case in the amount of $2,400. Appellant assigns four errors for this court's review. Appellant Howard Leasure and appellee Sharon Leasure were married in Cleveland, Ohio on June 20, 1983. Two children were born as issue of this marriage; Jason (date of birth 1-18-84) and Megan (date of birth 8-5-85). On January 24, 1991, the parties were divorced pursuant to a divorce decree under which appellee was awarded custody and control of the couple's two minor children, Jason and Megan, subject to appellant's right of reasonable visitation. At the time of the divorce, appellant was ordered to pay child support in the amount of $584 per month. Subsequently, appellant relocated to California and remarried in September 1992. On September 9, 1994, appellant filed a motion to modify custody and child support in which he maintained that both Jason and Megan had expressed a strong desire to live with him in California. Appellant also sought a reduction in his child support obligation based upon his alleged inability to pay the previously determined amount. On February 3, 1995, appellant filed a motion to interview minor children in chambers pursuant to R.C. 3109.04(B)(1). The trial court overruled appellant's motion. -3- On January 5, 1996, the trial court modified appellant's child support obligation to $42.84 per week. (T. 5, 6). All remaining issues were scheduled for hearing by the trial court. On November 25, 1996, appellee filed a number of motions including a motion to find appellant in contempt of court for failure to pay child support, a motion for reasonable attorney fees and a motion for payment of guardian ad litem fees. The trial court consolidated appellee's motions and scheduled them for hearing along with appellant's motions on March 19, 1997. At the hearing, appellant argued that his children maintained a constant and sincere desire to live with him in California. (T. 140, 141). Appellant argued further that, as of January 1997, he has lived with his current wife in a mobile home located in San Lois Obispo, California. The mobile home, a double wide, could allegedly accommodate appellant, his current wife and both minor children comfortably. (T. 119). Appellant testified that, due to recurring health problems, he has been substantially unemployed since the date of the parties divorce. It was appellant's position that, in spite of having no steady income source since 1991, he has attempted to pay as much child support as possible since the divorce. Lastly, appellant stated that he had experienced continued problems with visitation and telephone contact with his children. Appellant blamed the majority of the problems upon the allegedly willful actions of appellee. (T. 137-139). -4- Appellee maintained that, while the children have expressed an interest in spending more time with their father, that interest has never risen to a constant and sincere desire to live with him. Appellee maintained further that, during the course of the post- decree litigation, appellant has lived in at least three different locations and has had approximately five different telephone numbers. (T. 114, 157). It was appellee's position that the transitory nature of appellant's living arrangements was the main factor in any alleged difficulty the children may have had in contacting appellant over the telephone, not any willful or deliberate attempt by appellee to prevent communication. (T. 113). Appellee disputed appellant's contention that he had been substantiallyunemployed since the divorce arguing to the contrary that appellant had a number of different employers since moving to California. It was appellee's position that much of appellant's actual income was unreported during this time period. Appellant himself admitted during his testimony that some of his past income had been under the table. (T. 123). Appellee also maintained that, with the exception of a couple of voluntary payments after court hearings, appellant had consistently refused to pay the court ordered child support payments. Appellant's failure to provide child support forced appellee to utilize tax refund intercepts of appellant's tax refund check on a number of occasions. (T. 126). -5- Lastly, appellee testified that, in contrast to appellant, she has been steadily employed with Ohio Business Machines for approximately sixteen years as a senior data entry employee. (T. 31). Appellee stated further that she lived within the Lakewood School District for a number of years in order to provide a stable environment for the children. (See Family Conciliation Services Report dated 11/25/96). At the conclusion of the hearing, the following exhibits were offered into evidence; a report from Family Court Services of the San Lois Obispo Superior Court for the State of California which was designated as Court Exhibit 1; a report from the Family Conciliation Services of Cuyahoga County Common Pleas Court, Domestic Relations Division, designated as Court Exhibit 2; the report of the guardian ad litem designated as Court Exhibit 3; a letter purported to be a letter of reference from appellant's current employer designated as defendant's Exhibit A; and a psychiatric report regarding appellant's mental health designated as Defendant's Exhibit B. On March 26, 1997, the trial court issued its judgment entry disposing of all post decree motions. The trial court found appellees' motions for contempt for failure to pay child support, attorney fees and guardian ad litem fees to be well taken and granted. The trial court overruled appellant's motion for a change of custody. The trial court then found appellant in contempt of court and ordered him to serve thirty days in the Cuyahoga County Jail and -6- assessed a $250.00 fine. The trial court found further that appellant could purge the contempt order by paying appellee's attorney fees in the amount of $2,500 and the guardian ad litem fees in the amount of $2,400. Lastly, the trial court suspended appellant's visitation rights until such time as the above stated amounts were paid in full. On April 25, 1997, appellant filed a timely notice of appeal from the judgment of the trial court. I Appellant's first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY REFUSING TO INTERVIEW THE MINOR CHILDREN IN CHAMBERS AND DENYING APPELLANT'S MOTION FOR AN IN CHAMBERS INTERVIEW. Appellant maintains, through his first assignment of error, that the trial court improperly refused to interview the couple's minor children pursuant of R.C. 3109.04(B(1) in spite of numerous requests to that effect by appellant. R.C. 3109.04(B)(1), which deals with the allocation of parental rights and responsibilities for care of children, provides: (B)(1) When making the allocation of the parental rights and responsibilities for the care of the children under this section in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child's best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in -7- chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation. Where the language of a statute is clear and unambiguous, there is no need for statutory interpretation. The statute must be applied as written. Wingate v. Hordge (1979), 60 Ohio St.2d 55, 58, 396 N.E. 2d 770. A review of R.C. 3109.04(B)(1) demonstrates that the language of the statute is clear and unambiguous and should, therefore, be applied as written. Zygela v. Euler (Dec. 30, 1996), Lucas App. No. L-95-323, unreported. R.C. 3109.04(B)(1) provides that upon the request of either party to the action, the trial court shall interview the minor children in chambers. The use of the word shall denotes mandatory compliance with the requirements of the statute. Ohio Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 534, 605 N.E. 2d 368. In this case, appellant not only filed a motion with the trial court requesting an in chambers interview of the minor children pursuant to R.C. 3109.04(B)(1), appellant also renewed that request on a number of occasions during the hearing of March 19, 1997. (T. 13, 14, 180). Clearly, under the present facts, the trial court was obligated to conduct an in chambers interview of the two minor children in accordance with the mandates of R.C. 3109.04(B)(1). Such a hearing is absolutely necessary even though the possibility exists that it would not have altered the trial court's ultimate decision on custody in this case. Badgett v. Badgett (July 15, 1997), Mahoning App. No. 95 CA 197, unreported. -8- Appellant requests further that, upon remand, this court direct the lower court to assign this case to an alternate judge. This court declines to act upon appellant's request as the proper method for lodging a complaint against a sitting judge is through a motion for recusal in the trial court and/or an affidavit of disqualifications with the Ohio Supreme Court. Appellant's first assignment of error is well taken. Appellant's second assignment of error states: II THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY TERMINATING/SUSPENDING APPELLANT'S VISITATION AND TELEPHONE RIGHTS BASED SOLELY ON APPELLANT'S FAILURE TO PAY CHILD SUPPORT. Appellant maintains that the trial court improperly suspended his right to visitation and telephone contact with his minor children until such time as appellant purged himself of contempt of court by paying $2,500 in attorney fees and $2,400 in guardian ad litem fees; pay to appellee, in addition to court ordered child support, $1,000 per year to be applied to child support arrearage prior to the exercise of summer visitation; and further limited all telephone contact to one call per week at his expense. It is appellant's position that such an order arising out of a contempt hearing for failure to pay child support is both extremely prejudicial as well as against the weight of existing Ohio law. As appellant correctly asserts, it is well settled in Ohio that, barring URESA cases, visitation and support rights are entitled to separate and distinct enforcement. Flynn v. Flynn (1984), 15 Ohio App.3d 34, 37; Logan v. Vice (1992), 79 Ohio App.3d -9- 838. Accordingly, the denial or suspension of visitation is only appropriate where it can be demonstrated that particularly egregious conduct by the non-custodial parent would result in harm to the children. Conkel v. Conkel (1987), 31 Ohio App.3d 169. The right of visitation with one's children is a natural right and should only be denied under extraordinary circumstances. Pettry v. Pettry(1984), 20 Ohio App.3d 350. Therefore, the fact that a non- custodial parent failed to comply with a mandatory order of the court does not, in itself, justify the denial or suspension of visitation. Johnson v. Johnson (1977), 52 Ohio App.2d 180, 182; Fry v. Fry (1989), 64 Ohio app.3d 519. In this case, appellant was found to be in contempt of court for failure to make child support payments. As a result, the trial court suspended all visitation, an issue which was not even before the trial court, and made future visitation conditional upon the payment of appellee's attorney fees, guardian ad litem fees and child support arrearages. Clearly, the failure of appellant to comply with the trial court's child support order does not, in this instance, rise to the level of egregious conduct that would result in harm to the minor children. Accordingly, the trial court's suspension of appellant's visitation rights constitutes an abuse of discretion and must be reversed. Truitt v. Truitt (1989), 65 Ohio App.3d 126, 132 citing to Andrulis v. Andrulis (1985), 26 Ohio App.3d 164, 166. Appellant's second assignment of error is well taken. Appellant's third assignment of error states: -10- III THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY FINDING APPELLANT IN CONTEMPT OF COURT FOR NON-PAYMENT OF CHILD SUPPORT WHERE THE EVIDENCE BEFORE THE COURT DEMONSTRATED LACK OF ABILITY TO PAY. Appellant maintains that the trial court abused its discretion by finding him in contempt of court for failure to pay child support. It is appellant's position that he submitted sufficient evidence as to his continued unemployment and severe health problems to demonstrate that his failure to pay child support was not an intentional disregard for his legal obligations, but rather, a legitimate inability to pay. The trial court may hold a party in contempt where that party fails to comply with a lawful judgment or court order. See, R.C. 2705.02. An appellate court will not reverse a trial court's contempt order absent an abuse of discretion. Dozer v. Dozer (1993), 88 Ohio App. 3d 296, 302, 623 N.E.2d 1272. An abuse of discretion connotes more than an error of judgment; it implies a decision which is without a reasonable basis, and that is clearly wrong. Angelkavski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159, 463 N.E. 2d 1280. In a contempt proceeding for failure to pay court ordered child support, the movant for contempt must establish by clear and convincing evidence that the obligor is in contempt for failure to pay support. Pugh v. Pugh (1984), 15 Ohio St.3d 136, 472 N.E.2d 1085. The burden then shifts to the obligor to establish inability to pay by a preponderance of the evidence. Id.This shift is necessitated by the fact that the child support order in effect imparts a finding by the trial court that the -11- obligor possesses the ability to pay. Rinehart v. Rinehart (1993), 87 Ohio App.3d 325, 328, 622 N.E.2d 359. Here, it is undisputed that appellant failed to pay a large percentage of the court ordered child support since the couple's divorce in 1991. This fact satisfied appellee's initial burden of demonstrating appellant's noncompliance. The burden then shifted to appellant to prove that his failure to make payments was the result of an inability to pay, not intentional noncompliance. Appellant argued that he was unable to make his child support payments due to chronic unemployment coupled with severe health problems. However, evidence was submitted through the report of Family Court Services of the Superior Court of San Luis Obispo County, California detailing appellant's employment history from 1991 through 1996. During this time period, appellant was employed as an oil refinery derrikman from February 1991 to October 1992; received state disability payments from October 1992 through March 1995 as a result of an employment related injury; worked as a pet store manager from March 1995 to October 1995; and operated a health food restaurant from November 1995 through March 1996. Clearly, a review of the evidence fails to support appellant's assertion that his failure to pay child support was not intentional but based upon financial inability. Appellant himself admitted to having a number of jobs since relocating to California, however, the record shows that little or no voluntary child support payments were made. Under the factual circumstances present, appellant cannot escape a finding of contempt by the trial court by making -12- unsubstantiated allegations, with no supporting evidentiary material, that he was unable to pay the court ordered child support. Spring v. Spring (April 17, 1996), Tuscarawas App. No. 95AP080058, unreported. Accordingly, appellant's third assignment of error is not well taken. Appellant's fourth and final assignment of error states: IV THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY UNREASONABLY AWARDING PLAINTIFF ATTORNEY FEES AND BY ORDERING APPELLANT TO PAY THE ENTIRE AMOUNT OF GUARDIAN AD LITEM FEES. Appellant maintains, through his fourth assignment of error, that the trial court improperly awarded appellee attorney fees arising out of the post-decree hearing on March 19, 1997 as well as ordering appellant to pay the guardian ad litem fees incurred in the case. Appellant argues that the record fails to demonstrate the reasonableness or accuracy of appellee's attorney fees. In addition, appellant maintains that the record fails to support the award of guardian ad litem fees given appellant's stated inability to pay. It is well established that a domestic relations court's determination concerning the award of attorney fees will not be reversed on appeal absent an abuse of discretion. Ingalls v. Ingalls (1993), 88 Ohio App.3d 570, 579-580. In reviewing the trial court's decision under the abuse of discretion standard, a presumption of validity attends the trial court's action *** Volodkerich v. Volodkerich (1989), 48 Ohio App.3d 313. Abuse of -13- discretion connotes more than an error in law or judgment; it implies that the court's action was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Therefore it is the burden of appellant to demonstrate that the trial court's decision was unreasonable, arbitrary or unconscionable. Fascionev. Fascione (July 7, 1994), Cuyahoga App. No. 65125, unreported. In Swanson v. Swawnson (1976), 48 Ohio App.2d 85, 90, this court relied upon DR2-106(B) of the Code of Professional Responsibility as one of the factors used for determining the reasonableness of a fee. The guidelines include: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; and; (5) The experience, reputation, and ability of the lawyer or lawyers performing the services. Id. at 90-91. In the instant case, counsel for appellee presented no evidence concerning the reasonableness of her fees, but simply testified as to the number of hours spent on the case, the amount of the initial retainer received and then applied her hourly rate. (T. 176-177). Without additional evidence relating to the -14- reasonableness of the stated attorney fees, it is apparent that appellee did not meet her evidentiary burden for an award of attorney fees. Farley v. Farley (1994), 97 Ohio App. Ohio App.3d 351, 358-359. Accordingly, the trial court must conduct further proceedings to determine the reasonableness of the attorney fees in question. Similarly, in reviewing the ruling of the trial court relative to an award of guardian ad litem fees, this court is guided by the following considerations: Pursuant to Civ. R. 75(B)(2), a trial court is vested with discretion as to whether or not to appoint a guardian ad litem. State v. Stone (1983), 1 Ohio App.3d 6, 12. Civ. R. 75(B)(2) additionally grants a trial court broad authority to tax the costs of the guardian ad litem's fee to the parties. See Staff Notes to Civ. R. 75(B(2); accord Pruden-Wilgus v. Wilgus (1988), 46 Ohio App.3d 13, 16. In evaluating an order for compensation to a guardian ad litem, a reviewing court shall consider whether the trial court abused its discretion. See Davis v. Davis (1988), 55 Ohio App.3d 196, 200. Fascione, supra citing to Murphy v. Murphy (Oct. 10, 1991), Cuyahoga App. No. 60892, unreported, at 4. Here, a review of the record on appeal demonstrates that the guardian ad litem fees incurred in this case were substantiated by evidence presented in the guardian ad litem's bill filed with the court on November 21, 1996 as well as the testimony of the guardian ad litem regarding additional fees incurred as a result of the post-decree hearing on March 19, 1997. (T. 115-116). However, the trial court's allocation of the entire guardian ad litem fee against appellant is not supported by the record considering that the GAL report indicated that the couple's two minor children had -15- expressed a desire to live with appellant in California thereby lending credence to appellant's motion for change of custody. In addition, the trial court's award of guardian ad litem fees against appellant only is contrary to the intention of the trial court during the post-decree hearing in which the trial court stated: THE COURT: All right. 1200 -- okay. All right. We'll make an order when this is finalized apportioning the G.A.L. bill between the two parties. (T. 116). Accordingly, it is apparent that the trial court's award of the entire guardian ad litem fee against appellant is not supported by the record. Appellant's fourth assignment of error is well taken. Judgment of the trial court is hereby affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. -16- It is ordered that each party shall bare its own costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court, Division 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. PATRICIA ANN BLACKMON, A.J. AND LEO SPELLACY, J., CONCUR. JUDGE MICHAEL J. CORRIGAN 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 .