COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73022 DILIP UJLA : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION REKHA UJLA : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : JULY 9, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Domestic Relations Division : Case No. D-190316 JUDGMENT : AFFIRMED IN PART; : REVERSED IN PART : AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: JOYCE E. BARRETT Attorney at Law 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: REKHA UJLA, pro se 1834 Coes Post Run Westlake, Ohio 44145 KENNETH A. ROCCO, J.: -2- Appellant appeals the trial court's denial of his motion to terminate spousal support, the trial court's granting of appellee's motion to modify appellant's child support obligation, and the trial court's grant of attorney's fees to appellee. Because the trial court lacked jurisdiction to modify the order and appellant had fully complied with the parties' agreement regarding spousal support, appellant's first assignment of error is well-taken. Since the trial court failed to comply with the statutory mandate regarding attorney's fees, appellant's third assignment of error is well-taken. However, because the trial court's decision regarding the modification of appellant's child support obligation did not amount to an abuse of discretion, appellant's appeal is overruled in part. Appellant, Dilip Ujla, and appellee, Rekha C. Ujla, were married on May 7, 1971. Two children were born as issue of the marriage: Shefalia (d.o.b. 10-8-73) and Avnee (d.o.b. 5-23-79). The trial court granted the parties a divorce on September 11, 1990. The court's journal entry granting the divorce incorporated the parties' in-court agreement. The agreement provided, inter alia, that appellant would pay to appellee, in support of the minor children, the sum of $700 per child, plus two percent poundage, commencing September 1, 1990 and continuing until each child attained the age of eighteen and graduated from high school or became otherwise emancipated. The agreement also provided that appellant would pay to appellee the sum of $1,800 in sustenance -3- alimony commencing September 1, 1990 and continuing for a period of five years, subject to earlier termination upon appellant's or appellee's death or appellee's remarriage or cohabitation. Appellee filed a motion to modify child support and for attorney's fees on September 14, 1994. The grounds for appellee's motion were that she had reason to believe that appellant's income had increased and that there had been a marked change in circum- stances regarding the expenses of her minor children since the last support calculations had been made and the court had issued its order. Appellant thereafter filed a motion to modify child and spousal support on the grounds that his income had dramatically decreased. Appellant also filed a motion to terminate spousal sup- port, a motion for accounting, a motion to join new party defendant and a motion to stay dispersal.1 Hearings on the pending motions commenced January 22, 1996, and continued on January 26, February 5 and February 12. Appellant testified that he was born on June 24, 1946. He was currently a primary care physician in a practice that he began in 1984. He had privileges at two area hospitals and was a stock member of both of these hospitals. He was also involved with several managed-care programs, including Blue Cross/Blue Shield of Ohio, Superblue HMO of Ohio, Emerald Health Care Network, First Care of Ohio, Primary 1 The record reflects that appellant elected to pursue only the motion to modify child support. -4- Physicians of Ohio, Affordable Incorporated and Great West. In addition, appellant accepted Medicare patients. Appellant estimated that he had approximately two to three thousand patient visits annually. His hours for examinations were from 3:00 p.m. to 6:30 p.m. on Mondays, Tuesdays, and Fridays, and from 10:00 a.m. to 1:00 p.m. on Saturdays. Appellant also had approximately thirty patients in a nursing home that he visited, and he saw one to two patients in a hospital per day. He estimated that his charge for an average office visit was $60, while a hos- pital visit had an initial charge of $150 to $225, with follow-up charges ranging from $80 to $150 per visit. Appellant testified that he derived his total income from only two sources. His primary source of income was his corporation, Dilip Ujla, Inc. Appellant's gross income from his corporation, according to his W-2 tax forms, was as follows: TAX YEAR GROSS INCOME 1989 $100,134 1990 $190,000 1991 $200,000 1992 $ 75,000 1993 $ 45,000 1994 $ 8,000 (plus $42,000 from officer fees. The record further reflected that appellant's corporation earned: TAX YEAR GROSS INCOME 1991 $231,086 1992 $128,360 1993 $135,748 1994 $115,469 Appellant's only other source of income derived from rental property that appellant purchased in 1992. He had initially -5- allowed his brother to live there rent-free; however, beginning in 1994, he began to collect rent from a tenant who leased the pro- perty. The rental property produced income of $875 per month. The mortgage amounted to $850 per month. Appellant testified that the reason for the decrease in his income was due primarily to changes initiated by the Medicare sys- tem and to the introduction of health maintenance organizations and managed-care associations. He testified that he continued to work as hard as he had in past years. Appellant has paid five years of spousal support at $1,800 per month and has also paid child support in the sum of $700 per child per month as required by the journal entry and separation agree- ment. His support obligation was reduced by $700 per month when the parties' oldest daughter reached the age of eighteen. Appel- lant remarried in 1991 and had a child with his current wife in 1992. Wendy Heun, an employee of Case Western Reserve University in the career placement office, also testified. She claimed that she had general knowledge of the medical profession because she assisted students who might be interested in some aspect of medi- cine. Ms. Heun testified that someone with appellant's background and eleven years of practice should have an annual income of between $120,000 and $130,000.00. William Troy, a certified public accountant, also testified after he reviewed appellant's tax returns. He opined that, based -6- on his work with other physicians in similar practices, appellant's gross income as reflected on his returns was not accurate. Appellee also testified at the hearings. She is a board cer- tified nurse practitioner. Appellee's 1995 final pay stub reflec- ted that she had earned $43,385.33 from Cleveland Neighborhood Health Services, $5,652.02 from Planned Parenthood, and $3,244.76 from Total Health Care Plan. Appellee also received dividends of approximately $7,607 annually. Appellee believed that her base salary in 1990 was approximately $35,000 plus overtime. Appellee testified that at the time of the hearings, she was living with her two daughters. Although the oldest daughter, Shefalia, had graduated from college, she was working as a waitress and had returned to live with her mother in September, 1995. She did not pay any of the household expenses. Appellee testified that she first sought additional support directly from appellant because Shefalia wanted to go to medical school and she believed that appellant was earning a good living. When she did not receive any response from appellant, she filed her motion with the court. Appellee claimed that her expenses had increased. When the initial order of support was agreed upon, Avnee, the couple's youngest daughter, was eleven. At age sixteen, at the time of the hearings, Avnee's needs had changed. Avnee attended Hawken, a private school with an annual tuition of $18,000.00. In addition, Avnee had expenses that arose from her training in Indian classical dance and from instruction on the -7- sitar. Appellee also testified that Avnee now required make-up and eyebrow and lip waxings and demanded a higher quality of clothing than when she was younger. Her daughter had also become interested in cooking, resulting in higher food costs. The Magistrate issued her decision on November 1, 1996. Among her findings, the Magistrate determined that appellant voluntarily limits his office practice and, therefore, should be considered as underemployed. She concluded that with appellant's background and earning potential, his annual income should be approximately $125,000.00. The Magistrate also found that appellee, who had previously earned approximately $35,000, was earning $52,733 annually at the time of the hearings and also earned dividends of $7,607.00. She allowed that appellee's expenses had increased due to the changes in the minor child's needs. The Magistrate's opinion included the following finding: The Magistrate finds [appellant] should pay support of $938.78 per month for one child Avnee and continue to pay spousal support of $1,800 per month for [appellee] until the payment of August 1, 1995 at which time spousal support of $108,000.00 should have been paid in full, in that the order was un- modifiable according to the decree. The Magistrate then ordered as follows: [Appellant's]Motion to Modify Spousal Support #258367 is denied. The Spousal Support termi- nates according to the decree after 5 years which commenced September 1, 1960 (sic) and terminates with the August 1, 1995 payment, if $108,000 has been paid to the Defendant. The [appellant's] Motion to Terminate Spousal Support #271277 is denied. *** The [appellant] shall pay [appellee] $1,800.00 in spousal -8- support pursuant to the terms of the divorce, or until further order of Court. The Magistrate also ordered appellant to pay $938.78 per month in child support for Avnee. On July 21, 1997, the trial court adopted the Magistrate's Decision in its entirety. Appellant timely filed his notice of appeal. Appellant's first assignment of error states: WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS ORDER THAT APPELLANT PAY TO APPELLEE $1,800 IN SPOUSAL SUPPORT PURSUANT TO THE TERMS OF THE DIVORCE, OR UNTIL FURTHER ORDER OF COURT. R.C. 3105.18(E) provides, in pertinent part: If a continuing order for periodic payments of money as alimony is entered in a divorce or dissolution of marriage action that is deter- mined on or after May 2, 1986, and before January 1, 1991, or if a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstancesof either party have changed and unless one of the following applies: (1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifi- cally authorizing the court to modify the amount or terms of alimony or spousal support. * * * The parties' agreed entry incorporated into the court's Judgment Entry granting the parties a divorce states, at paragraph 9: -9- Plaintiff shall pay to defendant, as and for sustenance alimony, the sum of eighteen hun- dred dollars ($1,800.00) per month, commencing September 1, 1990 and continuing for a period of five (5) years, subject to earlier termina- tion upon plaintiff or defendant's death, defendant's remarriage or cohabitation. *** The parties did not provide the court with continuing jurisdiction to modify the spousal support. The Magistrate initially acknowledged that appellant had been ordered to pay spousal support in the amount of $1,800 per month and that the order was unmodifiable and would terminate on August 1, 1995. Appellee testified that she received the $1,800 per month from appellant until August, 1995. There was no evidence to indi- cate that appellant had not paid the spousal support to which he had agreed. However, in contravention of her findings, the Magistrate denied appellant's motion to terminate spousal support and ordered appellant to continue to pay $1,800 in spousal support pursuant to the terms of the divorce, or until further order of Court. (Emphasis added.) Thus, although the Magistrate had correctly acknowledged that the parties had agreed that the support would terminate on August 1, 1995, and that the order was unmodifiable, she nevertheless denied the motion to terminate and provided an option for the payments to continue until further order of Court. The record demonstrates that appellant had fulfilled his spousal support obligation to appellee and that the lower court lacked continuing jurisdiction over the matter; thus, the lower court erred when it denied appellant's motion to terminate spousal -10- support and ordered appellant to continue to make payments pursuant to the terms of the divorce or until further order of the court. Appellant's first assignment of error is well-taken. Appel- lant's motion to terminate spousal support should be granted. Appellant's second assignment of error states: WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN INCREASING, RATHER THAN DECREAS- ING, APPELLANT'S CHILD SUPPORT OBLIGATION. It is appellant's position that appellee was in possession of information that demonstrated that appellant's income had steadily decreased while his expenses had increased and that appellee's income had increased; thus, he contends that the trial court erred when it increased his child support obligation. The trial court's determination regarding the modification of a child support obligation is governed by an abuse of discretion standard. When reviewing a lower court's decision pursuant to an abuse of discretion standard, the court's role: *** is to determine whether the trial judge's decision was an abuse of discretion, not whether it was the same decision we might have made. Wargo v. Price (1978), 56 Ohio St.2d 65, 10 O.O.3d 116, 381 N.E.2d 943. Not only is our role limited to review, but the review itself has narrow limits: *** We have repeatedly held `[t]hat the term abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconsciona- ble.' Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. -11- A post-decree modification of child support is governed by R.C. 3113.215(B)(4), which provides, in pertinent part: If an obligor or obligee under a child support order requests the court to modify the amount of support required to be paid pursuant to the child support order, the court shall recalcu- late the amount of support that would be re- quired to be paid under the support order in accordance with the schedule and pursuant to the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, and if that amount as recalculated is more than ten per cent greater than or more than ten per cent less that the amount of child support that is required to be paid pursuant to the existing child support order, the deviation from the recalculated amount that would be required to be paid under the schedule and the applicable worksheet in division (E) of this section, through line 24, or in division (F) of this section, through line 23, shall be considered by the court as a change of circum- stance that is substantial enough to require a modification of the amount of the child sup- port order. *** The tax returns produced by appellant indicate that appel- lant's income has steadily decreased since the date of the parties' divorce; however, R.C. 3113.215 defines income for the calcula- tion of child support obligation, as either: (a) For a parent who is employed to full capacity, the gross income of the parent; (b) For a parent who is unemployed or underem- ployed, the sum of the gross income of the parent, and any potential income of the par- ent. Potential income includes: Imputed income that the court or agency deter- mines the parent would have earned if fully employed as determined from the parent's -12- employment potential and probable earnings based on the parent's recent work history, the parent's occupational qualifications, and the prevailing job opportunities and salary levels in the community in which the parent resides[.] The Magistrate determined that appellant was underemployed. The record supports that determination. Appellant limits his office hours to approximately fourteen hours per week. Additionally, the testimony of Ms. Heun and Mr. Troy indicates that appellant's income should have been much greater than reported by appellant. Moreover, appellant's tes- timony was quite vague when he was questioned regarding the number of patients that he sees. Although it may not have been the same decision that this court would have made, the trial court's determination that appellant was underemployed and its imputation of an annual income of $125,000 to appellant does not amount to an abuse of discretion. The trial court completed a worksheet that calculated the child support payment based on appellant's income of $125,000 and appellee's income of $52,733.00. The court calculated an annual support for one child of $11,265.37. The trial court's recalcula- tion demonstrated an increase of more than ten percent. Therefore, the court did not abuse its discretion when it ordered a modifica- tion of appellant's support obligation. Appellant also argues that the court's order should not be retroactive. Appellant relies on this court's decision in Lange v. Lange(May 12, 1988), Cuyahoga App. No. 53449, unreported, for the proposition that an increase in support is effective only from the -13- date of journalization in the absence of a provision in the judg- ment entry. Appellant's contention is without merit. First of all, the Magistrate's decision, adopted in full by the trial court, included the following: [T]he order shall commence September 14, 1994. Thus, distinguishable from Lange, the entry did provide a date certain on which its order should commence. Furthermore, it is not an abuse of discretion for a trial court to order an increase in child support payments retroactive to the date of filing of the motion for modification of support. Murphy v. Murphy (1984), 13 Ohio App.3d 388. The lower court was clearly within its discretion when it so ordered. Appellant's second assignment of error is overruled. Finally, appellant's third assignment of error states: WHETHER THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING FEES TO THE APPELLEE. An award of attorney's fees in a domestic relations action is within the sound discretion of the trial court. Gullia v. Gullia (1994), 93 Ohio App.3d 653, 661, citing Swanson v. Swanson (1976), 48 Ohio App.2d 85. Appellant contends the trial court abused its discretion when it granted attorney's fees to appellee. R.C. 3105.18(H) provides: In divorce or legal separation proceedings, the court may award reasonable attorney's fees to either party at any stage of the proceed- ings, including, but not limited to, any appeal, any proceeding arising from a motion to modify a prior order or decree, and any proceeding to enforce a prior order or decree, if it determines that the other party has the ability to pay the attorney's fees that the -14- court awards. When the court determines whe- ther to award reasonable attorney's fees t - a otecting his interests if it does not award reasonable attorney's fees. The Magistrate determined that appellee incurred attorney's fees in the amount of $8,406.50 relating to the proceedings below. In order to ascertain whether the fees alleged were reasonable, the Magistrate examined the factors enumerated in Loc.R. 21 and Swanson supra. dv. Swanson, 2 At the time of the final hearing on thoany party pursuant to thi motion or pleading that gives rise to the request for attorney fees, the attorney seek-2 Domestic Relations Loc. ing such fees shall present: (1) an itemized statement describing the services rendered, the time for such services, and the requested hourly rate for in-court time and out-of-court time; (2) testimony as to whether the case was complicated by any or all of the following: (a) new or unique issues of law; (b) difficulty in ascertaining or valuing the parties' assets; (c) problems with completing dis- covery; (d) any other factor necessitating extra time being spent on the case; (3) testimony regarding the attor- ney's years in practice and experience in domestic relations cases; and (4) evidence of the parties' re- spective income and expenses, if not otherwise disclosed during the hearing. Swanson v. Swanson, supra at 90 refers to DR2-106(B) for the following guidelines to follow when determining the reasonableness of a fee: (1) The time and labor required, the novel- ty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the -15- The Magistrate then awarded attorney's fees of $2,000 to appellee [u]pon consideration of the relative financial position and earning abilities of the parties *** ; however, no finding was made as to whether the award was necessary to permit appellee to fully litigate her rights and to adequately protect her interests. Moreover, although the Magistrate made findings consistent with Domestic Relations Loc.R. 21, there is no testimony in the record from appellee's attorney upon which the Magistrate's find- ings regarding the complexity of the issues in the case and the attorney's years in practice and experience could be based. The rule states that the attorney shall provide testimony regarding the complexity of the case and his or her years in practice and experience in domestic relations cases. The plain language of the rule requires that the court take testimony from the attorney on these issues before granting an award of attorney's fees.3 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. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the ser- vices. (8) Whether the fee is fixed or contingent. 3 This court acknowledges that a domestic relations magistrate is often familiar with domestic relations attorneys and that such testimony may be unnecessary. Furthermore, the magistrate can determine the complexity of the issues from the record in the case. -16- Moreover, this court, in Oatey v. Oatey (Apr. 23, 1992) Cuya- hoga App. No. 62086, unreported, noted that an award of reasonable attorney fees must be predicated upon evidence submitted by the movant demonstrating reasonable value of actual services performed and itemized to the party pursuant to Dom.Rel.Loc.R. 21(B). This court concluded that, since the plaintiff's attorney offered no testimony concerning the reasonableness of his fees and the lower court failed to consider whether the plaintiff would be prevented from fully litigating her rights without an award of attorney's fees, the award of attorney's fees was unsupported by the evidence and constituted an abuse of discretion. Id.; see, also, Farley v. Farley (Aug. 12, 1993) Cuyahoga App. No. 62780, unreported (revers- ing an award of attorney's fees made by the trial court and remanding to allow a ruling on the motion in accordance with Oatey, R.C. 3105.18 and Dom.Rel.Loc.R. 21(B).) Since it is not evident from the record sub judice that the Magistrate complied with either R.C. 3105.18(H) or Domestic Relations Loc.R. 21, the lower court's award of $2,000 for attorney's fees amounted to an abuse of discretion. Appellant's third assignment of error is well-taken. However, Domestic Relations Loc.R. 21 reads that the attorney shall present such testimony. Therefore, the magistrate is constrained to comply with the rule. -17- This cause is affirmed in part and reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. JAMES M. PORTER, P.J. and LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO 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 .