[Cite as Lehman v. Lehman, 2013-Ohio-3622.]


                                     COURT OF APPEALS
                                  FAIRFIELD COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


JANIE J. LEHMAN                               :   JUDGES:
                                              :
                                              :   Hon. W. Scott Gwin, P.J.
       Petitioner - Appellee                  :   Hon. Sheila G. Farmer, J.
                                              :   Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
DAVID M. LEHMAN                               :   Case No. 13-CA-2
                                              :
                                              :
       Petitioner - Appellant                 :   OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Fairfield County
                                                  Court of Common Pleas, Domestic
                                                  Relations Division, Case No. 1998
                                                  DS 98




JUDGMENT:                                         Reversed and Remanded




DATE OF JUDGMENT:                                 August 20, 2013




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

DAVID K. GREER                                    LEE S. ROSENTHAL
1150 Morse Road, Suite 230                        Goldman & Rosenthal
Columbus, OH 43229                                2 Easton Oval, Suite 180
                                                  Columbus, OH 43219
Fairfield County, Case No. 13-CA-2                                                         2



Baldwin, J.

      {¶1}    Appellant David M. Lehman appeals a judgment of the Fairfield County

Common Pleas Court, Domestic Relations Division, rendering an amount due on his

obligation to pay one-half of the college expenses for the parties’ two children and

ordering him to pay one-half of the amounts paid by appellee Janie J. Lehman toward

ongoing student loan payments.

                              STATEMENT OF FACTS AND CASE

      {¶2}    Appellant and appellee were married in August of 1991. Two sons were

born to the parties, R.L. (born in 1982) and K.L. (born in 1984). In May of 1998, the

parties filed a petition for dissolution of their marriage in the Fairfield County Court of

Common Pleas, Domestic Relations Division. The court issued a decree of dissolution

on June 10, 1998.

      {¶3}    The dissolution decree incorporated the parties’ separation agreement,

Article II(g), which provided for splitting the cost of the sons' post-high school education.

Said article reads in pertinent part:

      {¶4}    “Husband shall pay and be responsible for and Husband shall hold the

Wife and children safe and harmless with regard to one-half of the college education or

continuing education expenses of the children after high school, including colleges,

trade schools, and other such educational facilities, and said obligation of the Husband

shall include one-half of tuition, book expenses, room and board expenses, and other

such expenses. * * * Husband’s obligations under this paragraph shall terminated (sic)

at the time each child reaches the age of twenty-four.”
Fairfield County, Case No. 13-CA-2                                                       3


      {¶5}   A separate provision of the separation agreement, Article II(h), provided

for splitting the cost of general expenses of the sons, such as, car insurance, car repair,

car payments, extracurricular activities, music expenses, tutoring, and “other similar

expenses.”

      {¶6}   In 2004 and 2005, appellee filed two contempt motions against appellant,

alleging non-compliance with the aforesaid provisions. On August 1, 2005, the trial court

rendered a contempt finding against appellant and imposed a 30-day jail term, subject

to being purged by appellant paying $100 per month toward an established liquidated

amount of $3,200 to cover all past expenses, plus $1,000 in attorney fees.

      {¶7}   Appellee was further ordered in the August 1, 2005 judgment entry to

establish a checking account at Lanfair Federal Credit Union as a designated college

expense account for the monthly payments, and to provide appellant with deposit slips.

The entry also provided that appellant would be responsible for one-half of the deferred

loans.

      {¶8}   Appellee thereafter filed motions to impose the jail sentence. Appellant

responded by filing a motion to vacate the August 1, 2005 judgment entry which had

found him in contempt and ordered the establishment of the Lanfair escrow account.

These motions were resolved by an agreed judgment entry on April 16, 2007, which,

among other things, (1) acknowledged a $4,000 payment to appellee by appellant and

declared him “current on all ongoing monthly expenses” concerning R.L. and K.L.

through March 31, 2007; (2) vacated the 2005 contempt entry; and (3) provided for

appellant to thereafter pay $344.31 per month, via deposits into the Lanfair college

expense account.
Fairfield County, Case No. 13-CA-2                                                    4


      {¶9}    On December 9, 2008, appellee filed a new contempt motion. Appellee

alleged that appellant had stopped making payments on this new monthly obligation in

March of 2008, and that he had failed to pay one-half of the education expenses per the

dissolution decree and the April 16, 2007 judgment entry. The motion sought restitution

for payments appellee made to keep R.L.'s “Nelnet” student loan current, "and any other

loans for which she has paid as [appellant’s] share", as well as her attorney fees in

prosecution of the motion. Appellant responded with his own motion on October 22,

2010, "for an order that he has met his obligation to pay expenses."

      {¶10}   The contempt motion proceeded to an evidentiary hearing on January 20

and 21, 2011. Both appellant and appellee took the stand. The trial court issued a

preliminary judgment entry on April 19, 2011, in which it stated: “From the evidence

offered, the court finds it most difficult to determine what 50% of the total college

expense really is.” Id. at 2. The court thus ordered the parties to submit post-trial

worksheets and supporting documents by May 12, 2011. Accordingly, both parties

submitted worksheets and supporting documentation to the court.

      {¶11}   The trial court issued its final judgment entry on July 1, 2011. The court

dismissed all contempt matters against appellant, but ordered him to pay appellant the

amount of $4,502.99 (one-half of $9005.97) at the rate of $300.00 per month. Appellee

filed an appeal from this judgment.

      {¶12}   On appeal, we reversed and remanded, finding that the court failed to

properly calculate the arrearage. Lehman v. Lehman, 5th Dist. Fairfield No. 11-CA-43,

2012-Ohio-2082. In footnote two, this Court stated in pertinent part:
Fairfield County, Case No. 13-CA-2                                                      5


      {¶13}   “In the alternative, appellant proposes that we simply require appellee to

pay one-half of the total claimed student loan balances due of $73,242.48. However,

such a remedy is premature until appellant actually pays toward such amount;

furthermore, she made no such request in her motion for contempt and arrearages.” Id.

      {¶14}   On remand, the trial court found the amount of the arrearage to be

$9,049.24, which he ordered appellant to reimburse to appellee at the rate of $200.00

per month. The court’s judgment of December 5, 2012, also states in pertinent part,

“The question before the Court concerns footnote number two at the bottom of the last

page of the Court of Appeals Opinion. The footnote suggests that it is premature to

require the Appellee/Petitioner-Husband to pay one-half of the total claims because the

Appellant/Petitioner-Wife had not paid those sums yet. * * * With respect to Petitioner-

wife’s ongoing loan payments to these loan providers in the future, Petitioner-Husband

is hereby ordered to reimburse Petitioner-Wife, in addition to the $200.00 per month

previously stated, one-half of the amounts paid toward these loans within seven (7)

days, upon Petitioner-Wife’s presentation of proof of payment to these loan providers. *

* * Failure to comply, or untimely compliance, with any of these orders constitutes prima

facie grounds for a motion for contempt of this Court.”

      {¶15}   Appellant assigns a single error to this Court on appeal:

      {¶16}   “THE TRIAL COURT COMMITTED ERROR WHEN IT ORDERED

APPELLANT-HUSBAND TO PAY ONE–HALF (1/2) OF THE AMOUNTS PAID BY

APPELLEE-WIFE TOWARD THE ONGOING LOAN PAYMENTS.”

      {¶17}   Appellant does not contest the trial court’s calculation of the arrearage on

remand. However, appellant argues that the court exceeded the scope of this court’s
Fairfield County, Case No. 13-CA-2                                                    6


remand by ordering appellant to pay one-half of all amounts paid by appellee toward

ongoing loan payments.

      {¶18}   The Ohio Supreme Court explained the law-of-the-case doctrine in Nolan

v. Nolan, 11 Ohio St.3d 1, 3-4, 462 N.E.2d 410 (1984):

      {¶19}   “[T]he doctrine provides that the decision of a reviewing court in a case

remains the law of that case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels. * * * [T]he doctrine

functions to compel trial courts to follow the mandates of reviewing courts. * * * Thus,

where at a rehearing following remand a trial court is confronted with substantially the

same facts and issues as were involved in the prior appeal, the court is bound to adhere

to the appellate court's determination of the applicable law. (Citations omitted).”

      {¶20}   The Nolan court concluded that the trial court had exceeded the scope of

a remand when it reworked the financial aspects of the marital home disposition, as it

was clear from the appellate court’s opinion that the sole basis for the remand was

occupancy of the marital home. Id. at 4, 462 N.E.2d 410. Ohio courts have followed

Nolan and found prejudicial error when the trial court exceeded the scope of a remand

from the appellate court. Hawley v. Ritley, 35 Ohio St.3d 157, 160, 519 N.E.2d 390

(1983); Graham v. Graham, 98 Ohio App.3d 396, 400-402, 648 N.E.2d 850 (1994);

State ex rel. TRW, Inc. v. Jaffe, 78 Ohio App.3d 411, 415, 604 N.E.2d 1376 (1992).

      {¶21}   In the instant case, we remanded solely on the issue of calculation of the

arrearage. The language in footnote two was not tantamount to a remand for the court

to enter an order that appellant pay for ongoing loan payment. The footnote was simply
Fairfield County, Case No. 13-CA-2                                                     7


an explanation as to why we would not consider appellee’s request for such an order in

the procedural posture of the case in the first appeal.

      {¶22}   The assignment of error is sustained.       The judgment of the Fairfield

County Common Pleas Court, Domestic Relations Division, is affirmed as to the

calculation of the arrearage, and reversed as to the order that appellant pay one-half of

ongoing loan payments to appellee. This cause is remanded to that court for further

proceedings according to law and consistent with this opinion.       Costs assessed to

appellee.


By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.




                                         HON. CRAIG R. BALDWIN



                                         HON. W. SCOTT GWIN



                                         HON. SHEILA G. FARMER



CRB/rad
[Cite as Lehman v. Lehman, 2013-Ohio-3622.]


                 IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                 FIFTH APPELLATE DISTRICT


JANIE J. LEHMAN                                  :
                                                 :
       Petitioner -Appellee                      :
                                                 :
-vs-                                             :      JUDGMENT ENTRY
                                                 :
DAVID M. LEHMAN                                  :
                                                 :
       Petitioner - Appellant                    :      CASE NO. 13-CA-2


       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed as to the

calculation of the arrearage, and reversed as to the order that appellant pay one-half of

ongoing loan payments to appellee. This cause is remanded to that court for further

proceedings according to law and consistent with this opinion.        Costs assessed to

appellee.




                                              HON. CRAIG R. BALDWIN



                                              HON. W. SCOTT GWIN



                                              HON. SHEILA G. FARMER
