GARY JAY GOTTFRIED
ATTORNEY AT LAW
Gary J. Gottfried Co. L.P.A
608 Office Parkway Suite B
Westerville, Ohio 43082
614-297-1211
614-297-6387
TWENTY FIFTH AAML OHIO CHAPTER
HAROLD R. KEMP ANNUAL FAMILY LAW SYMPOSIUM
2012-2013 CASE LAW UPDATE
* Certified Family Law Specialist - Ohio State Bar Association
A Fellow of The American Academy of Matrimonial Lawyers - Ohio Chapter
A Fellow of The International Academy of Matrimonial Lawyers - U.S.A. Chapter
GARY J. GOTTFRIED
608 Office Parkway, Suite B
Westerville, Ohio 43082
(614) 297-1211
(614) 297-6387 (Fax)
E-mail:
2012-2013 DOMESTIC RELATIONS CASE LAW UPDATE
INDEX TO CASES
TOPICPAGE NO.
A.Attorney Matters1
- Disciplinary Matters1
2. Attorney Fees1
3.Miscellaneous Matters5
B.Bankruptcy8
C.Child Support13
D.Property Division
1. Cases ( other than retirement/pension)25
E.Retirement Benefits37
F.Parental Rights42
G.Spousal Support56
H.Miscellaneous70
GARY JAY GOTTFRIED
ATTORNEY AT LAW
608 Office Parkway, Suite B
Westerville, Ohio 43082
614-297-1211
614-297-6387 (FAX)
E-mail:
2012-2013 CASE LAW UPDATE
A.ATTORNEY MATTERS
1.DISCIPLINARY MATTERS:
.
a.Board of Commissioners on Grievances and Discipline Opinion No. 2006-5 ( June 2006)
DR7-104(A) imposes a restraint on communication between represented persons and an attorney who is appointed to serve in the dual role of GAL and attorney for the child. It is improper for an attorney appointed to serve in a dual role of GAL and attorney for the child to communicate with represented persons on the subject of the representation unless there is a waiver by counsel or authorization by way of a court order or court rule. Communication that is administrative in nature such as scheduling appointments or meetings is not communication on the subject of the representation.
b.Disciplinary Counsel v. Curry, 112 Ohio St 3d 130 ( Sept. 2006)
FACTS: Attorney husband who was an Attorney had his law license suspended because he failed to pay 2 child support orders. Supreme Court in affirming the suspension for 1 year found that the husband/lawyer’s failure to pay child support violated DR 1-102 ( A)(6) ( conduct which adversely reflects on attorney’s fitness to practice law) See also Disciplinary Counsel vs Geer ( 112 Ohio St 3d 1177, 12/06) where an Attorney was suspended for 1 year for nonpayment of child support on the theory that the nonpayment of child support violates DR1-102(A)(6)
2.ATTORNEY FEES
a.Donaldson v Todd 10th Distr, Case No. 07AP-328 ( Dec. 2007)
FACTS: Plaintiff files for Civil Protection Order but does not show up for final hearing and case is dismissed. Defendant files for fees pursuant to r.c 2323.51 and Rule 11. Trial Court without a hearing dismisses the motion for fees. Defendant appeals. Reversed.
DECISION: In reversing the trial court, the Court of Appeals held that a trial court may deny a motion for fees without a hearing if on the face of the motion the motion does not demonstrate an arguable basis for the motion for fees. However, in this case the motion on it’s face was meritorious and the affidavit raised claims which appeared to be meritorious and therefore the trial court should not have denied the motion without a hearing
b.Willamson ( Cooke) v Cooke 10th Distr Case No. 05AP-936 ( Febr 2007)
FACTS: Defendant was found in contempt for his failure to timely pay the Plaintiff for his share of educational expenses. Trial court then awarded fees to the Plaintiff upon a finding of contempt. Defendant appeals, reversed.
DECISION: In reversing the trial court’s decision, the Court of Appeals said that if a given matter has been resolved, even though untimely there is nothing to litigate. Since, the purpose of a civil contempt is to enforce an order to pay money, when such payment is made the issues become moot. Where a party who has filed to comply to a court order to pay money to another and motion for civil contempt is filed, but the offending party after such filing makes such payment and fully complies with the present requirement to pay there is no order for the trial court to make in a civil contempt proceeding since the offending party has purged himself of the contempt. Although sanctions would be moot, the court could award attorney fees incurred by the party pursuing the contempt up to the time of compliance
c.Padgett v Padgett 10th Distr, Case No. 08AP-269
FACTS: On a motion to reallocate parental rights the parties settle the issue of the parental rights but submit the issue of legal fees to the Court. Trial Court orders the wife to pay $ 35,000.00 of legal fees, travel costs and GAL fees. Wife appeals. Affirmed and Reversed in part.
DECISION: In affirming the trial court’s decision, the court of appeals acknowledged that 3105.73( b) allows the trial court to consider the income of the parties, their conduct and any other relevant factors ( excluding income) in post decree attorney fee awards. The court indicated that it would continue to rely on the factors set forth in the McCord v Hummer case to “ flesh out” the statutory requirements. Those facts include needs of the children, change in circumstance, ability./inability to pay fees, amount of the fees, amount of fees caused by undue delay or resistance by either party and effect of payment of fees upon the custodial parents ability to contribute a proportionate share of child support. The court affirmed the award because it found that the wife’s conduct was the “ overwhelming cause for delay in the case and increased the expenses of the case. Citing the Karales case from the 10th district the court of appeals also indicated that in fashioning an award of fees the court can consider non litigation conduct especially when the non-litigation conduct results in longer and more expensive litigation.
The court also rejected the wife’s argument that because the husband had discharged his legal fees by filing bankruptcy that she shouldn’t have to pay the award. The court found that the debt owed by the husband to his attorney was different than the debt which the wife owed to the husband. The fees owed to the husband were in the nature of child support and therefore were non dischargeable in bankruptcy.
d.Monda v Shore 11th Distr. Case No. 2008-0079( May 2009)
FACTS: Trial court ordered to husband and counsel pursuant to Rule 11 to pay Attorney fees and costs for not attending mediation conference. Husband appeals, appeal dismissed as not being a final appealable order.
DECISION: In dismissing the Husband’s appeal, the Court of Appeals stated that an award of legal fees in not a final appealable order but is interlocutory. R.C. 2505.02(b) defines a final appealable order and identifies 4 types of orders which are final appealable orders and may be reviewed.
The Court of Appeals said that the award of fees for failure to comply with mediation was a case of first impression. In arriving at it’s decision to sustain the award of fees at the trial court level, the Court of Appeals for the 11th District said that orders in mediation are like discovery orders and a “ pre trial procedure” which are designed to aide in the final disposition of a case. Citing the case of Stae vs. ex rel Steckman the Court of Appeals said that since discovery orders are not final appealable orders the same logic should apply to orders regarding mediation. That is orders related to mediation are interlocutory and not final appealable orders.
e.Raleigh v Hardy 5th Dist. Case No. 08CA-0140 ( Sept 2009)
FACTS: Parties agreed to shared parenting in a parentage action. 2 years later Plaintiff files to terminate shared parenting and seeks custody. Trial court terminates shared parenting and designates Plaintiff as residential parent. Trial court also orders that each party is to pay a percentage of the GAL fees based upon the percentages shown on line 16 of the child support worksheet. Trial court designates the GAL fees as child support, a domestic support order and non-dischargeable in bankruptcy. Defendant did not pay so the GAL filed contempt against the Defendant for nonpayment of child support. Defendant found guilty of nonpayment of GAL fees. Defendant appeals. Affirmed.
DECISION: Defendant argued that GAL fees are costs and can only be collected through a civil judgment. Defendant cited the Bailey case from Hamilton County ( C-060700 ) which held that contempt was not the proper way in which collect GAL fees since GAL fees in juvenile case are assessed pursuant to Juv .R. 4(G) as costs . Court distinguished the Bailey case because the case at bar was a parentage action.
Citing the Lever case ( ND Ohio 1991) the court of appeals found that the fees of the GAL were rendered to meet the needs of the child and therefore were in the nature of support.
f.Dzina v Dzina 8th District, Case No. 94748 ( March 2011)
FACTS: Wife appeals the decision of the trial court awarding to her from her Husband $ 750,000.00 in legal fees for the Husband’s financial misconduct and breach of an indemnification agreement. Trial Court grants a credit against the fees ordered for an invalid indemnification agreement. After credits for the invalid payments and other monies due to the Defendant the court finds that the amount due to the Plaintiff was $ 70,347. 00 to be in 60 payments of $ 1m 172.45 per month. Wife appeals. Affirmed
DECISION: In affirming the trial court’s decision the Court of Appeals in commenting on the case stated: For over a decade the Dzina’s have engaged in a long and contentious divorce. This case, is the latest chapter in the epic sage of the Ohio Judiciary’s efforts to disentangle the Dzina’s and their several business interests is on the verge of breaking the record for interminable litigation set in Jarndyce.
g.Tibbetts v Tibbetts: 8th Distr Case No. 96746 ( Oct 13 2011)
FACTS: Post Decree each spouse filed a contempt against the other spouse for violations of their divorce decree. The trial court found that each party was guilty of contempt for the violations alleged by the other party. The trial court ordered the wife to pay the husband
$ 750.00 in legal fees and the husband was ordered to pay the wife $ 1,000.00 in legal fees. Wife doesn’t pay her legal fees but argues that there should be set off and the husband should pay to the wife the difference or $ 250.00. Wife appeals, Affirmed.
DECISION:There is no legal right to set off one judgment for fees against the other judgment for fees even when both judgment arose from the same proceeding. The decision whether to set off fees or whether to order each party to pay the fees to the other party as ordered is solely within the discretion of the trial court.
h.Glatfelter v Commissioner of the Internal Revenue, United States Tax Court, Case no. 29405-08S ( January 2010)
FACTS: Husband is ordered per the terms of the divorce to pay attorney fees of $ 4,000.00 to the Wife’s Counsel. Husband then files his tax return in the year the payment of fees was made and deducts the $ 4,000.00 in legal fees paid to the Wife’s attorney as spousal support. The deduction is denied. Husband appeals, affirmed
DECISION: In denying the claim of spousal support, the Tax Court examined Section 71 of the Tax Code and California law. Under California Law an award of attorney fees in a divorce case survives the death of the wife. Therefore, since the payments don’t end at the wife’s death the payment of legal fees don’t meet the 4 criteria established by Section 71 of the Code for the payments to qualify as a deductible spousal support. The 4 criteria for a payment to be deductible as spousal support are as follows:
1. The payment is received by or on behalf of a spouse under a divorce or separation instrument
2.The divorce or separation instrument does not designate such payment as a payment which is not includable in gross income under this section and not allowable as a deduction under section 215
3.In the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and
4.There is no liability to may any such payment for any period after the death of the payee spouse and there is no liability to make any such payment
( in cash or property) as a substitute for such payments after the death of the payee spouse.
3.MISCELLANEOUS
a.Board of Commissioners on Grievances and Discipline Opinion 2009 (June 2009)
On the conclusions of domestic relations mediation a lawyer mediator man not pursuant to Prof. Cond. Rule 1.1(c ) (2) prepare dissolution documents for filing on behalf of both parties. A lawyer mediator may prepare dissolution documents for one party in a domestic relations matter provided the following conditions are met:
1.During mediation a lawyer mediator must not negotiate and then subsequently represent one of the parties.
2.both parties must give informed consent in writing to a lawyer mediator representing one of the parties.
3.during employment or for one year after employment with a court a lawyer mediator who is a court employee must not undertake to represent a matter in which he/she personally participated.
4.if one party is unrepresented a lawyer mediator who subsequently represents the other party must property dealt with the unrepresented party.
5.a lawyer mediator who undertakes a subsequent legal representation must comport with any applicable standards of practice for mediation.
b.Devall v. Schooley 5th Distr, Case No. CT2009-0017 ( Nov 2009)
FACTS: Mother files for a reallocation of parental rights. Mother also files a motion requesting the appointment of a GAL and requests that an in camera interview of the children. Trial court interviews the child and then takes evidence on the issue of whether there has been a change of circumstances. Trial court finds that there has been no change of circumstances, and therefore denies the motion for the appointment of a GAL and then denies the motion. Mother appeals, Affirmed.
DECISION: Mother had argued at the trial court and court of appeals level that the trial court committed error when it did not appoint a GAL prior to determining whether there had been a change of circumstances. Court of Appeals disagrees and says that the because the trial court did not find a change of circumstances it was not required to appoint a GAL.
Court of Appeals said that the statutory scheme for modifying parental rights requires a determination of whether there has been a change of circumstances and if there is a finding of a change of circumstances is the modification in the child’s best interest. The court noted that the statutory mandate for the appointment of a GAL is set forth in the best interest portion of R. C. 3109.04 and not in the change of circumstances section of the statute.
c.Bowman v Tyack, 10th Distr, Case No. 08AP-815 ( March 2009)
FACTS: In 2000 the husband was represented by first counsel and reached an agreement to suspend the husband’s child support obligation. However, no entry was every filed. In 2004 husband appeared at hearing with new counsel and learned that the entry had not been filed an the arrearage had been accruing. In April 2005 Husband files a 60b and requests that the child support arrearage be cancelled and the money be repaid by the ex wife. Trial court grants the 60b and cancels the arrearage but does not order repayment. In 2006 Husband filed malpractice action against the first attorney. Malpractice was dismissed because it had been filed more than one year after the cause of action had accrued in November 2004. Husband appealed. Affirmed.
DECISION: The court of appeals said that the husband had filed to file his complaint for malpractice within 1 year from the date that a cognizable event rising to the level of malpractice had occurred. The court said that a cognizable event is defined as an event whereby the client discovers or should have discovered that his injury was related to his attorney’s act or non-act and the client is put on notice of the a need to pursue his possible remedies against his attorney or where the attorney client relationship for that particular transaction terminates whichever occurs later.
A cognizable event is an event sufficient to alert a reasonable person that his attorney has committed an improper act in the court of legal representation. The focus should be on what the client was aware of and not a judicial determination. The cognizable event puts the plaintiff on notice to investigate the facts and circumstances relevant to his or her claim.
d.In Re: T.H 2nd District, Case No. 24176 (January 2011)
FACTS: Trial Court in a custody case in Juvenile Court after several half days of trial issues an order which restricted the Husband on the last day of trial to one hour. Husband objects to the limitation of time. Objection denied. Husband appeals. Reversed.
DECISION: In reversing the trial court’s decision the Court of Appeals recognized that great deference is given to the trial court in controlling their dockets citing Evidence Rule 611(A). However in this case by limiting the Father to one hour and 15 minutes the trial court unfairly restricted the Father’s ability to present his own testimony and the testimony of the remaining witnesses.