COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72709 SUSAN B. VILLA : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : HERBERT J. VILLA : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: MAY 14, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Domestic Relations Division Case No. CP-DM-132296 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: MARSHALL J. WOLF, ESQ. WOLF & AKERS 1515 The East Ohio Building 1717 East Ninth Street Cleveland, Ohio 44114 For Defendant-Appellant: JAMES S. CAHN, ESQ. HERMANN, CAHN & SCHNEIDER 1301 East Ninth Street, #500 Cleveland, Ohio 44114 -2- DYKE, P.J.: Appellant, Herbert J. Villa, appeals the order of the trial court finding him in contempt for failing to pay spousal support to appellee, Susan B. Villa; ordering him to pay the attorney fees of appellee; and denying his motion to terminate alimony. For the following reasons, we affirm. The parties' marriage was dissolved on June 2, 1982. The separation agreement stated that the husband agreed to pay to the wife alimony in the sum of One Thousand One Hundred Dollars ($1,100.00) per month until death, remarriage or cohabitation of the wife. The spousal support would be paid regardless of the wife's income. The separation agreement provided that the agreement could only be modified in a writing signed by both parties. Appellant worked as an attorney until 1987, when he opened a bar. The bar failed in June of 1994. When the business failed, appellant ceased making spousal support payments. He also ceased to carry $100,000 of life insurance with the wife listed as beneficiary, as required by the divorce decree. In August of 1995, appellant commenced employment as an attorney in the United States Department of Justice. He earned $78,000 annually, and currently earns $85,000. Appellant remarried in 1987, and his new wife earned $87,500. Appellant testified as follows: He made spousal support payments of $550 in November and December, 1995, and January, February and March of 1996. He made payments of $1,100 in May, June and July of 1996. The total of all these payments was $6,600. The magistrate asked appellant if he paid $550 in April. Appellant -3- first said no, and then said yes. Appellant did not have documentation of his payments. All these payments were made directly to appellee. Appellant said that when he started his new job, he could not make the full $1,100 payment because he needed to repay a personal debt of $3,000. He also needed to purchase clothing and other items for his new job. Appellant testified that in August, 1995, he acquired life insurance. For a short period of time, it was less than the amount required. The parties stipulated as to the qualifications of appellee's attorney and the reasonableness of the rate. Appellee requested $7,500 in attorney fees. The magistrate reviewed the fee state- ments, and disallowed some items. No evidence was presented con- cerning appellee's income or as to the expenses of either party. The trial court found that it lacked jurisdiction to consider the motion to terminate spousal support. The court further found as follows: Appellant had paid $6,050, so he was in arrears $21,450. Appellant was able to comply with the spousal support order from the period of August 21, 1995 to the present. Appellant was in contempt for failure to pay spousal support. Appellant was sentenced to thirty days jail or community service. Appellant could purge his contempt by paying $3,000, exclusive of any funds received by CSEA by way of attachment. The -4- $3,000 payment, is in addition to any obligation to pay current support and other arrearage payments which may be due. The trial court ordered appellant to pay $5,683.02 of the wife's attorney fees incurred in the action for contempt. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED BY ADOPTING THE MAGISTRATE'S DECISION TO AWARD LEGAL FEES TO WIFE. Appellant contends the award of attorney fees was incorrect because no evidence was heard as to appellee's income or expenses. R.C. 3105.18(H) states that the court may award reasonable attorney fees in a proceeding to enforce a prior order, if it determines that the other party has the ability to pay. The court: . . . shall determine whether either party will be pre- vented from fully litigating his rights and adequately protecting his interests if it does not award reasonable attorney's fees. R.C. 3105.18(H). Loc. R. 21(B) of the Cuyahoga County Court of Common Pleas, Domestic Relations Division states: At the time of the final hearing on the motion or plead- ing that gives rise to the request for attorney fees, the attorney seeking such fees shall present: . . . (4) evidence of the parties' respective income and expenses, if not otherwise disclosed during the hearing. Attorney fees for the appeal of a divorce decree could not be awarded absent a finding that the wife was unable to pay, and the husband was able to pay. Farley v. Farley (1994), 97 Ohio App.3d 351, 358. -5- The trial court could conclude that appellant was able to pay the spousal support, based on the evidence. There was no evidence as to the wife's ability to pay, however. Evidence of the wife's ability to pay was not required in this case. A trial court may award attorney fees as part of the costs in a contempt action. State ex rel. Fraternal Order of Police v. Dayton (1977), 49 Ohio St.2d 219, Pontikos v. Pontikos (June 21, 1990), Cuyahoga App. No. 56798, unreported, R.C. 3105.18(G). Neither the common law nor R.C. 3105.18(G) require that the wife's ability to pay be considered. See Wilder v. Wilder (Sept. 7, 1995), Franklin App. No. 94APE12-1810, unreported. The attorney fees are not additional support, but a cost incurred in the con- tempt action. It would be unfair to require appellee to expend her own funds to enforce the separation agreement when appellant wilfully failed to comply. Loc. R. 21(B) cannot require that income and expenses be considered, because local rules cannot establish substantive rights. See Woloch v. Foster (1994), 98 Ohio App.3d. 806, 809. To the extent that it conflicts with this decision, Kassouf v. Pantona (Sept. 1, 1994), Cuyahoga App. No. 66196, unreported, is overruled. Kassouf is distinguishable because there was no evidence as to any of the requirements of Loc. R. 21(B). Appellant contends that there was not sufficient evidence as to the requirements set out in Swanson v. Swanson (1976), 48 Ohio App.2d 85. We find that the items listed in Swanson were stipulated or in evidence. -6- The trial court did not abuse its discretion in the award of attorney fees. See Swanson; Fraternal Order of Police, supra. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED BY NOT CORRECTING THE MAGISTRATE'S ERRONEOUS CALCULATION OF ARREARAGES. Appellant contends that the record only supports the conclu- sion that he paid $6,600 in spousal support, and does not support the trial court's finding that he paid $6,050. The trial court's conclusion that appellant paid only $6,050 was supported by some competent, credible evidence. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. Appellant said the total payments were $6,600. Appellant testified he did not pay $550 for the month of April. Later, appellant said he did pay for April. The question of appellant's credibility was primarily for the trial court. See State v. DeHass (1967), 10 Ohio St.2d 230. Appellant presented no documentation of the payments. We cannot say that the trial court erred in finding appellant was not credible when he testified he made a payment in April. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: THE TRIAL COURT ERRED BY ADOPTING THE MAGISTRATE'S DECI- SION HOLDING HUSBAND IN CONTEMPT. A party can not be held in contempt if it was not in their power to obey the court's order. Courtney v. Courtney (1984), 16 -7- Ohio App.3d 329. The trial court found that appellant had the ability to pay the support and maintain the life insurance when he started working at the Justice Department. The trial court did not err in refusing to accept appellant's arguments that he had to pay off a $3,000 debt and purchase clothing before he could pay support. Appellant was not in compliance with the support order, because he failed to pay the full amount of support for August, 1995 through April, 1996. Appellant and appellee both assert that the $3,000 appellant was ordered to pay to CSEA to purge the contempt would be applied against the arrearage. The trial court's order states that the $3,000 is in addition to current support owed or other arrearage owed. The plain meaning of the order is that the $3,000 could not be applied to another arrearage, only to the arrearage in question. The $3,000 payment to CSEA was not in the nature of a fine for criminal contempt. The order to pay the wife's attorney fees as costs was proper in a civil contempt action. See Fraternal Order of Police, supra. Appellant's arguments concerning criminal contempt do not apply. Accordingly, this assignment of error is overruled. IV. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED BY ADOPTING THE MAGISTRATE'S DECI- SION THAT THE COURT LACKED JURISDICTION TO HEAR HUSBAND'S MOTION TO TERMINATE ALIMONY. For decrees entered after 1986, spousal support ordered in the decree can not be modified unless the decree specifically provides -8- for continuing jurisdiction. R.C. 3105.18(E). For decrees entered before 1986, the law at the time of the decree controls. See Dickson v. Dickson (1991), 74 Ohio App.3d 70. In 1975, R.C. 3105.65 was amended to delete alimony from the list of items which the court has continuing jurisdiction to modify. Subsequently, it was held that the court has continuing jurisdiction to modify alimony ordered in a divorce action, even if the decree was silent as to the court's continuing jurisdiction. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399. In a dissolution action, however, the domestic relations court does not retain continuing jurisdiction to modify alimony payments, unless specifically provided in the separation agreement. Ashley v. Ashley (Cuy. App. 1981), 1 Ohio App.3d 80; Alban v. Alban (1981), 1 Ohio App.3d 146. In an unreported case, this court held that the domestic relations court does retain jurisdiction over alimony in a dissolution action, even if the separation agreement is silent. See McClain v. McClain (Aug. 25, 1983), Cuyahoga App. No. 46179, unreported. McClain was reversed by the Ohio Supreme Court, and the rule set out in Alban, supra was adopted. McClain v. McClain (1984), 15 Ohio St.3d 289. In this case, the dissolution decree was entered in June, 1982. The law at that time was that alimony in a dissolution decree could not be modified, absent a provision in the decree allowing continuing jurisdiction. The decree here did not provide for continuing jurisdiction. The trial court did not err in -9- dismissing appellant's motion to terminate spousal support for lack of jurisdiction. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -10- 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 Common Pleas Court, 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., AND ROCCO, J., CONCUR. ANN DYKE 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 .