[Cite as Dague v. Dague, 2013-Ohio-4292.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                       LAKE COUNTY, OHIO


KELLY J. DAGUE,                                   :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2012-L-091
        - vs -                                    :

KENNETH M. DAGUE,                                 :

                 Defendant-Appellant.             :


Civil Appeal from the Lake County Court of Common Pleas, Domestic Relations
Division, Case No. 10DR000630.

Judgment: Affirmed.


Sandra A. Dray, Sandra A. Dray Co., L.P.A., 111 Mentor Avenue, Painesville, OH
44077 (For Plaintiff-Appellee).

L. Bryan Carr, Carr, Feneli & Carbone Co., L.P.A., 1392 S.O.M. Center Road, Mayfield
Heights, OH 44124 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from a final decree in a divorce proceeding before the Lake

County Court of Common Pleas, Domestic Relations Division. Appellant, Kenneth M.

Dague, contests the trial court’s rulings on the issues of spousal support and payment

of attorney fees. Regarding both issues, he primarily contends that the trial court erred

in calculating the extent of his yearly income.

        {¶2}     Appellant and appellee, Kelly J. Dague, were married for roughly ten years
and resided in Lake County. Although the couple did not have any children during their

marriage, three children lived with them in the marital residence. Two of the children

were appellee’s daughters from a prior marriage, while the third was her adopted son.

Until the three children were emancipated, appellant provided some support for them.

      {¶3}   Throughout their marriage, appellant was the primary wage earner for the

couple. Specifically, appellant worked as a journeyman wireman electrician for various

union locals in northeastern Ohio and the state of West Virginia. As a union member,

he would be assigned by the locals to perform electrical work for private companies at

construction sites. During the mid-2000’s, appellant’s work was fairly consistent, and he

was able to earn over $84,000 one year. However, toward the end of the decade, the

consistency of his work decreased, he received unemployment compensation on some

occasions, and the amount of his yearly income diminished.

      {¶4}   In addition to the work from the union locals, appellant often supplemented

his income by performing small “side” jobs for acquaintances or family members. Even

though the extra income was helpful to the couple during periods in which appellant was

unemployed, neither party kept records of the supplemental work.         Appellant also

received compensation for driving a limousine on the weekends, but this part-time work

ended by the late 2000’s.

      {¶5}   Prior to the marriage, appellee was able to hold a full-time job and earn as

much as $16,000 a year. However, while she was married to appellant, appellee never

maintained full-time employment. Her most consistent position was a two-year stint with

a retail store, during which she worked 14 hours per week and earned approximately

$5,000 per year. According to appellee, she could have worked additional hours at the




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store, but appellant did not want her to be away from their home any longer. Eventually,

appellee was dismissed from the retail store when she was accused of stealing.

       {¶6}   Although appellee had a few other short-lived jobs with private companies,

her primary occupation during the marriage was doing odd jobs for various individuals

whom she knew. For example, she would assist some senior citizens in obtaining their

groceries or cleaning their homes. The amount of income she received from this type of

work was minimal.

       {¶7}   The parties separated in September 2010, within one month after appellee

lost her position with the retail store. Appellee immediately instituted the divorce action,

and appellant filed a counterclaim. During the ensuing year, appellee did not make any

concerted effort to find steady employment. Instead, she continued to perform the low-

paying odd jobs. As the justification for her inactivity, appellee maintained that she had

certain allergies which limited the type of jobs she could hold.

       {¶8}   An evidentiary hearing on the merits of both divorce claims was scheduled

for early September 2011. On the date of the hearing, the parties were able to reach a

settlement of all pending issues, except for the payment of spousal support and attorney

fees. The settled issues were subsequently incorporated into the final divorce decree.

The final hearing on the spousal support and attorney fees was then re-scheduled

before a court magistrate for late September.

       {¶9}   During that hearing, both sides presented considerable evidence as to the

extent of appellant’s yearly income throughout the latter half of their marriage. In regard

to 2011, appellant testified that he had only worked in three of the nine months, and had

been collecting unemployment compensation for the remainder of the year. He further




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testified that, during those three months of work, he was earning between $1,200 and

$1,300 each week; however, he did not submit any documentation to support this part

of his testimony. As to the issue of appellee’s attorney fees, she introduced evidence

showing that she had incurred fees totaling $8,413.70 in litigating the action.

       {¶10} In her written decision, the magistrate found that appellant’s yearly income

was $60,000, while appellee’s yearly income was $6,318. In calculating appellant’s

figure, the magistrate averaged his total income over the five-year period from 2006 to

2010. However, the magistrate did not include in her calculation any of his income from

2011. Based upon these figures, the magistrate held that appellant should be required

to pay spousal support to appellee in the amount of $1,500 per month for a period of 44

months. As to the issue of attorney fees, the magistrate held that appellant should pay

for $5,000 of appellee’s attorney fees. In support of this holding, the magistrate noted

that appellee did not receive any liquid assets as part of the property distribution, that

appellant’s income was substantially larger than appellee’s, and that appellee was also

obligated to pay attorney fees to prosecute a separate domestic violence case against

appellant.

       {¶11} Appellant objected to both of the magistrate’s primary findings.        After

conducting an oral hearing on the objections, the trial court issued a separate judgment

ruling in favor of appellant. Concerning spousal support, the trial court agreed with the

magistrate that it was appropriate not to consider his 2011 income for it to be

considered in determining his average income. The trial court further held that the

magistrate should have only averaged appellant’s last three years of income, since they

gave a better indication of his present earning ability.      Accordingly, the trial court




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concluded that appellant’s average income was only $55,755, and that he should only

be required to pay $1,200 per month in spousal support.

          {¶12} As to the issue of attorney fees, the trial court found that it was improper

for the magistrate to have considered the prosecution of the domestic violence action as

a relevant factor. The court further emphasized that appellee’s present lack of sufficient

funds was due primarily to her lack of effort in trying to find a permanent job. Despite

this, the court still held that, given the discrepancy between their respective incomes,

appellant should pay $2,103 of appellee’s attorney fees for the divorce action.

          {¶13} Three months after rendering its judgment of the objections, the trial court

incorporated the foregoing two orders into the final divorce decree. In appealing from

the latter entry, appellant has assigned the following as error:

          {¶14} “[1.] The trial court erred in its decision, awarding the appellee $1,200 per

month in spousal support and in its analysis of the appellant’s and appellee’s income

levels.

          {¶15} “[2.] The trial court erred in finding appellant liable for a portion of

appellee’s attorney fees.”

          {¶16} Under his first assignment, appellant submits that the trial court’s factual

finding concerning the amount of his annual income, for purposes of determining his

spousal support obligation, was contrary to the evidence. Specifically, he contends that

the trial court failed to accord proper weight to the fact that his yearly income has been

declining as a result of his periods of unemployment. In support of this point, appellant

places heavy emphasis upon the court’s decision not to consider his testimony as to the

extent of his 2011 income.




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       {¶17} At the outset of our analysis, it must be reiterated that the trial court gave

greater weight to appellant’s periods of unemployment than did the court magistrate. A

review of the trial transcript establishes that the periods of appellant’s lack of electrician

work occurred more often in 2008, 2009, and 2010. In determining an average annual

income for appellant, the magistrate predicated her calculations on the five-year period

beginning in 2006. However, the trial court concluded that the five-year period was too

broad, and limited its calculations to the three-year period beginning in 2008.

       {¶18} Without acknowledging this finding in his favor, appellant asserts that the

trial court erred in not including his 2011 income in its calculation of his average yearly

income. As the basis for its decision not to consider 2011, the trial court indicated that,

since the evidentiary hearing was held in September 2011, any information concerning

his 2011 income was incomplete. The court also noted that, even though appellant was

released from his latest job in September 2011, it was still possible that he could obtain

another job before the end of the year.

       {¶19} As a general proposition, it is acceptable to predicate a determination of a

party’s annual income upon an average derived from a reasonable prior period of time.

Davis v. Davis, 11th Dist. Geauga No 2011-G-3018, 2013-Ohio-118, ¶72. Under this

method of calculating annual income, the focus is not upon the amount of a party’s

income at one particular moment in time. Rather, the determination is based upon the

party’s general earning capability over a substantial period of time.

       {¶20} The trial testimony establishes that appellant experienced periods of

unemployment over the past three years and that his income had decreased as a result.

The testimony also indicates that appellant’s period of unemployment was slightly




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longer than in the prior three years. Nevertheless, because appellant also had three

months of relatively steady employment during 2011 and there were three months

remaining in that year, the trial court could justifiably conclude that appellant’s income

for the first nine months of 2011 was an anomaly, and that the prior three-year period

was a better indicator of appellant’s earning capability. For this reason, the trial court

did not abuse its discretion in holding that appellant’s partial 2011 income should not be

included in determining his average annual income.

       {¶21} As a separate argument regarding his income, appellant argues that the

trial court placed too much emphasis on his relative earning capability in determining

the amount of spousal support. As to this point, the record shows that, as part of her

trial testimony, appellee stated that appellant specifically placed a limit upon the amount

of hours she could work outside the home. In light of this, the trial court could justifiable

hold that, despite the relatively short duration of the marriage, appellee should continue

to benefit from appellant’s earning capabilities because he had limited her ability to

establish her own career.

       {¶22} As a final issue under his first assignment, appellant asserts that the trial

court erred in finding that appellee’s yearly income was $12,230. As part of her original

findings, the trial court magistrate held that an annual income of only $3,180 could be

attributed to appellee. However, in ruling upon appellant’s two basic objections, the trial

court held that, given the minimal effort appellee made to find work while the divorce

case was pending, her yearly income should be increased to minimum wage. Appellant

now maintains that her income should have been determined to be $16,000, the amount

she earned before the parties were married.




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       {¶23} In relation to this point in objecting to the magistrate’s finding as to

appellee, appellant never expressly argued that her yearly income should be found to

be $16,000.     Rather, in arguing for a figure higher than the amount found by the

magistrate, he only referred to the “minimum wage” figure. Hence, to the extent that the

trial court granted appellant the relief he sought, he was waived the ability to challenge

the trial court’s finding in the context of this appeal.

       {¶24} Taken as a whole, the record contains competent, credible evidence

supporting the trial court’s findings as to the amount of the parties’ respective annual

incomes. Furthermore, in light of the two findings, the spousal support order of $1,200

per month was reasonable under the facts of this case. See Davis, 2013-Ohio-0211, at

¶87.   Appellant has not demonstrated any error in the trial court’s spousal support

determination. His first assignment is without merit.

       {¶25} Under his second assignment, appellant submits that the facts of this case

did not support the conclusion that he should be required to pay any part of appellee’s

attorney fees. First, he argues that the evidence showed that he did not have sufficient

funds to pay part of her fees. Second, he contends that, since appellant received the

sum of $100,000 as part of the property distribution, she had sufficient funds to pay all

of her attorney fees.

       {¶26} Pursuant to R.C. 3105.73(A), the trial court has the authority in a divorce

action to require one party to pay all or a portion of the opposing party’s attorney fees if

it is equitable to do so. The statute further provides that the court should predicate its

determination upon all relevant factors, including the parties’ marital assets and income.

In applying the statute, this court has stated that the decision to award attorney fees lies




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within the sound discretion of the trial court. Dilley v. Dilley, 11th Dist. Geauga No.

2010-G-2957, 2011-Ohio-2093, ¶86.

       {¶27} As to the extent of appellant’s income in this case, the trial testimony was

sufficient to show that he was capable of paying approximately one-fourth of appellee’s

attorney fees. Although appellant testified that he had again become unemployed as of

the date of the evidentiary hearing in September 2011, the record further showed that,

despite the periods of unemployment, appellant would ultimately find new employment

through the local unions for electricians. In other words, there is nothing to indicate that

appellant would never be called back to work. In addition, the testimony established

that, even when appellant’s employment was sporadic, he still made considerably more

than appellee. To this extent, appellant’s assertion that he lacked the funds to pay the

fee order is not supported by the evidence in the record.

       {¶28} As to appellee’s ability to pay all of her own attorney fees, while the record

confirms that appellee was awarded the sum of $100,000 as part of the distribution of

the marital assets, it further indicates that this award consisted entirely of her portion of

appellant’s retirement benefits. Accordingly, appellee could not have immediate access

of the funds in question.     Moreover, even though the testimony demonstrated that

appellee received a monthly sum of $435 in rental income, she expressly testified that

all of those funds had to be “put back” into the property.

       {¶29} Given the respective assets and earning capabilities of the two parties, the

requirement that appellant pay the sum of $2,103 in attorney fees for appellee was not

arbitrary or unreasonable. Therefore, the trial court acted within the scope of its sound

discretion in awarding attorney fees in favor of appellee.             Appellant’s second




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assignment also lacks merit.

      {¶30} Pursuant to the following, appellant’s two assignments of error are not well

taken. Thus, it is the order and judgment of this court that the judgment of the Lake

County Court of Common Pleas, Domestic Relations Division, is affirmed.



TIMOTHY P. CANNON, P.J,

DIANE V. GRENDELL, J.,

concur.




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