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Attorney Fee Awards in Ohio Domestic Relations Cases
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In Ohio, attorney fees awards are often sought in domestic relations cases. Courts used to require that a expert testimony be presented regarding the reasonableness of the attorney fees sought. However, in Franklin County Ohio there is a court case which states that the domestic relations court may take notice of the complexity of the case from the court’s own record. Here is a copy of that case.
Court of Appeals of Ohio, Tenth District, Franklin County.
Lewis Ward, Plaintiff-Appellant
v.
Inez Ward, Defendant-Appellee.
No. 85AP-61 (REGULAR CALENDAR).
APPEAL from the Franklin County Common Pleas Court, Division of Domestic Relations.
MESSRS. BROWN, BROWN & BROWN, and MR. JEFFREY A. BROWN, for appellant.
MR. MICHAEL HEINZMAN, for appellee.
DECISION
MOYER, J.
*1 This matter is before us on the appeal of plaintiff, Lewis Ward, from a judgment of the Common Pleas Court of Franklin County, Division of Domestic Relations, in which the court divided the property of the parties and awarded alimony to defendant upon defendant’s counterclaim for alimony only.
Plaintiff asserts the following five assignments of error in support of his appeal:
“1. The trial court abused its discretion, in that the court made an inequitable division of the marital assets.
“2. The trial court abused its discretion, in awarding an excessive amount as alimony, an amount not supported by the evidence, and not established by appellee as her needs.
“3. The trial court committed error to the prejudice of the appellant in allowing testimony of the appellee, over the objections of the appellant, allowing appellee to testify as to her medical condition.
“4. The trial court abused its discretion in allowing appellee attorney’s fees.
“5. The trial court erred in making findings concerning issues not raised by the pleadings and not supported by the evidence, and not germain [sic] to the issues.”
In a trial on defendant’s counterclaim, the trial court awarded plaintiff the interest in his pension, the cash value in his life insurance policies and one-half of the interest in a parcel of real estate. The trial court awarded defendant all of the interest in the parties’ residence, with a further provision that defendant give plaintiff a note and first mortgage in the total sum of $13,100 with no interest, that the real estate be sold, and that plaintiff was to receive the amount secured by the mortgage at the time of defendant’s death, remarriage, cohabitation, or if defendant ceased to use the premises as her principal place of residence. Defendant was to receive the net proceeds of the sale after payment of plaintiff’s mortgage. The judgment entry also divided the other assets of the parties.
The law of Ohio does not require that a property settlement between parties to a divorce or alimony action provide for an equal division of the property, so long as neither party profits at the expense of the other. See Cherry v. Cherry (1981), 66 Ohio St. 2d 348. Plaintiff argues that, with the exception of the division of tangible personal property, he received property interests that have only a deferred value and that the property settlement is therefore unfair to him. He particularly challenges the distribution of his interest in the parties’ residential real estate which permits defendant to continue living in the premises and requires plaintiff to wait for the liquidation of his interest until one of the conditions in the judgment entry occurs.
Plaintiff admits that, if the property were ordered sold by the trial court, he, plaintiff, would probably be required to provide defendant with the resources with which to pay rent. Furthermore, plaintiff agrees that the property settlement is generally a fair settlement. There is nothing in R.C. 3105.18, or elsewhere, that requires the trial court to divide the property in a manner that would enable either of the parties to immediately have liquid assets. We find no abuse of discretion by the trial court in the division of property, and the first assignment of error is overruled.
*2 Having reviewed the relative earning capacities of plaintiff and defendant, and the evidence regarding defendant’s medical condition, education and her age, we conclude that the trial court did not abuse its discretion when it ordered plaintiff to pay defendant $932 per month as sustenance alimony. The second assignment of error is therefore overruled.
In support of his third assignment of error, plaintiff argues that the trial court erred when it permitted defendant to testify regarding her medical condition and when it relied upon that evidence in determining her earning capacity. Plaintiff cites no authority for asserting that defendant is not permitted to describe her physical and emotional condition. She testified that she is in constant pain; is under medication; that she has inflammation of her muscles, is not permitted to raise her hands above her head or do any lifting; and that, when she becomes nervous, she breaks out in an itching rash and gets sick to her stomach. That evidence is admissible evidence which the trial court is permitted to believe or disbelieve. Apparently the trial court believed at least a part of defendant’s testimony regarding her physical and mental condition in the court’s determination of her capacity to earn an income. We find no error in the trial court’s admission of the testimony objected to and his use of the testimony in forming his judgment. The third assignment of error is overruled.
In support of his fourth assignment of error, plaintiff does not contend that the trial court does not have the discretion to require one party to pay the attorney fees of another party in a domestic relations case. Rather, he argues that defendant failed to establish the nature of the services rendered, the reasonableness of the fees, or the necessity of requiring plaintiff to pay defendant’s attorney fees. The trial court ordered plaintiff to pay defendant $500 as expense money. The record indicates that plaintiff had been ordered to pay defendant $500 expense money at a temporary hearing and that plaintiff had paid only $206 of the amount due by the time of the hearing on the merits; and that plaintiff had not objected to the original award. Defendant argues that the trial court’s award of $500 in the final decree is actually only an award of $206 in additional expense money because plaintiff had not paid $294 of the original amount. Defendant testified that she had only $500 in a bank account at the time of the hearing.
The trial court is able to evaluate, in a large measure, the work performed by an attorney in a domestic relations case by merely looking at the record before the court. Furthermore, the court was obviously aware that defendant’s attorney was expending time in the hearing and in the preparation of documents related to the final decree. While the evidence regarding the nature of the services rendered and the reasonableness of the fee is scanty, the trial court is permitted to use its own knowledge with respect to those elements and the trial court in this case did not abuse its discretion when it awarded defendant $500 in expense money in addition to the $206 that plaintiff had previously paid. The fourth assignment of error is overruled.
*3 The fifth assignment of error is overruled because, even assuming defendant did not prove a common-law marriage, plaintiff was not prejudiced by the lack of such proof since the parties lived together from 1949 until 1984 and it therefore cannot be reasonably argued that the trial court erred by treating the parties, for purposes of the alimony-only award, as if they had been married, particularly in view of the fact that plaintiff did not object to any of the testimony regarding common-law marriage.
For the foregoing reasons, the judgment of the trial court is affirmed.
Judgment affirmed.
STRAUSBAUGH and McCORMAC, JJ., concur.
Ohio App., 1985.
Ward v. Ward.
Not Reported in N.E.2d, 1985 WL 10335 (Ohio App. 10 Dist.)
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