[Cite as Lundy v. Lundy, 2013-Ohio-3571.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


KELLI R. LUNDY,                                 :        OPINION

                 Plaintiff-Appellant,           :
                                                         CASE NO. 2012-T-0100
        - vs -                                  :

MARK E. LUNDY,                                  :

                 Defendant-Appellee.            :


Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 2011 DR 321.

Judgment: Affirmed.


Thomas E. Schubert, 138 East Market Street, Warren, OH 44481 (For Plaintiff-
Appellant).

Rhonda L. Granitto Santha, 6401 State Route 534, Farmington, OH 44491 (For
Defendant-Appellee).


DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, Kelli R. Lundy, now known as Kelli El Gazzer, appeals

from the judgment of the Trumbull County Court of Common Pleas, Domestic Relations

Division, finding her in contempt, ordering her to serve 30 days in the Trumbull County

Jail, and awarding attorney fees to defendant-appellee, Mark E. Lundy. The issues to

be determined by this court are whether the merits of an underlying order leading to a

contempt violation can be challenged on an appeal from a contempt finding, whether an

order is vague when it does not state the ending date of the order, and whether attorney
fees can be awarded when no evidence is presented as to whether they are

reasonable. For the following reasons, we affirm the judgment of the lower court.

        {¶2}   On June 29, 2001, El Gazzer filed a Complaint in Divorce from her

husband, Mark E. Lundy.

        {¶3}   On June 5, 2002, a Journal Entry (Decree of Divorce) was filed, granting

El Gazzer and Lundy’s divorce on the grounds of incompatibility. The Entry designated

El Gazzer as the residential parent of the couple’s three children, and ordered Lundy to

pay child support.

        {¶4}   On November 12, 2002, El Gazzer filed a Motion to Modify Child Support,

asserting that Lundy’s income had increased. On December 17, 2002, a Magistrate’s

Decision was filed, raising the amount of support owed by Lundy from $700 to $816 per

month. The Decision also stated that “Defendant [Lundy] [is] to claim all 3 children for

tax purposes.” This was adopted by the trial court in a Judgment Order on the same

date.

        {¶5}   Following a Motion filed by El Gazzer, on January 6, 2004, the trial court

issued a Judgment Order relating to the parties’ retirement benefits, ordering that El

Gazzer be responsible for providing health insurance and that Lundy pay all uninsured

health care expenses for the children. An Agreed Judgment Entry was filed on the

same day, relating to Lundy’s parenting time.

        {¶6}   On June 17, 2005, the court issued an Order finding that a Motion for

Modification of Child Support filed by Lundy had been withdrawn.

        {¶7}   On March 21, 2006, a Request for Approval of Administrative Hearing

Recommendation was filed with the trial court, in which the Trumbull County Child




                                            2
Support Enforcement Agency recommended that Lundy’s child support obligation be

modified to $644 per month. This was adopted by the trial court on March 23, 2006.

       {¶8}   On January 26, 2010, Lundy filed a Motion to Show Cause, requesting

that El Gazzer be ordered to show why she should not be held in contempt of court for

claiming the three children as dependents for tax purposes in the tax year of 2007.

Lundy asserted that, pursuant to the December 17, 2002 Order, he is entitled to claim

the children as dependents, and asked that El Gazzer be required to file an amended

tax return.

       {¶9}   On March 26, 2010, El Gazzer responded and stated that she believed the

order allowed Lundy to claim the children as dependents for only one year.

       {¶10} On April 21, 2010, a Magistrate’s Decision was filed, as well as a

Judgment Order by the court adopting the Decision. The court found that Lundy “was

awarded the tax exemption for all three (3) children.” The court held the Motion in

abeyance, allowing El Gazzer to file amended tax returns for any years she claimed the

children as dependents. The Order stated that the failure to file such returns would

result in a finding of contempt, and set a compliance hearing on a future date.

       {¶11} Pursuant to El Gazzer’s request, Findings of Fact and Conclusions of Law

were issued, in which the magistrate found that El Gazzer admitted to claiming the

children as dependents on her 2007 taxes, and under the trial court’s December 17,

2002 Order, Lundy was entitled to claim the children as dependents. These findings

and conclusions were approved by the court.

       {¶12} Subsequently, El Gazzer filed Objections to the Magistrate’s Decision and

argued that the trial court’s December 2002 Order was vague and void, since it did not




                                            3
determine whether allowing Lundy to claim the children as dependents was in their best

interest. On November 5, 2010, the trial court issued a Judgment Order, overruling the

Objections.

      {¶13} El Gazzer’s subsequent appeal was dismissed by this court for lack of a

final appealable order in Lundy v. Lundy, 11th Dist. Trumbull No. 2010-T-0123, 2011-

Ohio-2332, since no finding of contempt had been made. Id. at ¶ 4.

      {¶14} On September 20, 2011, a Magistrate’s Decision was issued, finding El

Gazzer in contempt, ordering her to serve 30 days in jail, and to pay attorney fees in the

amount of $500. The court allowed her to purge the contempt by filing amended tax

returns. The decision was adopted by the trial court in a November 3, 2011 Order, and

El Gazzer filed similar objections, which were again overruled.

      {¶15} On September 30, 2011, El Gazzer filed a Proposed Statement of

Proceedings of the September 20, 2011 Compliance Hearing. It stated that no record

or evidence was taken, that El Gazzer had not filed amended tax returns, and Lundy’s

counsel requested attorney fees.       This statement was adopted by the court on

November 23, 2011.

      {¶16} Following a second Notice of Appeal, this court held that, since El Gazzer

was permitted to purge her contempt violation, the November 3, 2011 Order was not

final. Lundy v. Lundy, 11th Dist. Trumbull No. 2011-T-0110, 2012-Ohio-2007, ¶ 5.

      {¶17} On November 1, 2012, the trial court issued a Judgment Order, adopting

the Magistrate’s Decision filed the same date, holding that El Gazzer “is sentenced to

thirty (30) days in the Trumbull County jail” and staying the sentence pending the

appeal. El Gazzer’s subsequent objections were overruled.




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        {¶18} El Gazzer timely appeals and raises the following assignments of error:1

        {¶19} “[1.] The trial court erred to the prejudice of the Plaintiff/Appellant when it

held that the judgment entry of December 16, 2002, which stated that, ‘Defendant to

claim all 3 children for tax purposes,’ complied with the mandates of Section 3119.82,

O.R.C., and was not void for vagueness. Furthermore, the statute requires, ‘If the court

determines that the parent who is not the residential parent…may claim the children as

dependents for federal income tax purposes, it shall order the residential parent to take

whatever action is necessary…to claim the children as dependents for federal income

tax purposes in accordance with the order of the court, etc. The order must contain this

language to be enforceable otherwise it is void.

        {¶20} “[2.] The trial court erred to the prejudice of Plaintiff/Appellant when it

found that the Magistrate’s decision of December, 2002, the Agreed Judgment Entry of

January 6, 2004, the court’s order of June 17, 2005, and the Child Support Enforcement

Agency       recommendations           of    2006   were   legally   adequate   to   award   to

Defendant/Appellee the minor child dependency deductions for federal income tax

return purposes.

        {¶21} “[3.] The trial court erred to the prejudice of Plaintiff/Appellant when it held

that the judgment entry of December, 2002 survived the administrative review and

subsequent court entries of January, 2004, June, 2005 and March, 2006, and

disregarded the dispositive effect of the ruling of the Internal Revenue Service.

        {¶22} “[4.] The trial court erred to the prejudice of Plaintiff/Appellant when in its

finding of contempt, [it] awarded attorney fees when no evidence was taken to allow a

reviewable determination of reasonable attorney fees.

1. Lundy did not file an appellee’s brief.


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       {¶23} “[5.] The trial court erred to the prejudice of Plaintiff/Appellant when it

ordered Plaintiff to file Amended Tax Returns for all years since 2002 and to sign the

necessary IRS Form to permit the Defendant/Appellee to claim the children as ordered

in its Order of April 21, 2010.”

       {¶24} The assignments of error will be considered out of order for ease of

discussion.

       {¶25} In her first assignment of error, El Gazzer argues that the December 17,

2002 trial court order allowing Lundy to claim the children as dependents for tax

purposes is vague and did not give her notice of her obligations, such that contempt

would be enforceable.

       {¶26} “[I]n a contempt proceeding, a reviewing court must uphold the trial court’s

decision absent a showing that the court abused its discretion.” Nolan v. Nolan, 11th

Dist. Geauga No. 2007-G-2757, 2008-Ohio-1505, ¶ 28, citing Winebrenner v.

Winebrenner, 11th Dist. Lake No. 96-L-033, 1996 Ohio App. LEXIS 5511, 7 (Dec. 6,

1996). This court has described an abuse of discretion as a judgment “which does not

comport with reason or the record,” and one in which the court failed “to exercise sound,

reasonable, and legal decision-making.” (Citations omitted.) In re Beynenson, 11th

Dist. Geauga No. 2012-G-3066, 2013-Ohio-341, ¶ 12.

       {¶27} “A finding of civil contempt requires clear and convincing evidence that the

alleged contemnor has failed to comply with the court’s prior orders.” (Citation omitted.)

Willoughby v. Masseria, 11th Dist. Geauga No. 2002-G-2437, 2003-Ohio-2368, ¶ 25.

Clear and convincing evidence “is that measure or degree of proof which will produce in




                                            6
the mind of the trier of facts a firm belief or conviction as to the allegations sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

       {¶28} In support of El Gazzer’s argument that a vague order cannot be

enforceable in contempt proceedings, she cites Geiss v. Geiss, 5th Dist. Delaware No.

96CAF05023, 1997 Ohio App. LEXIS 3326 (July 1, 1997). In Geiss, the Fifth District

held, in the context of evaluating a Civ.R. 60(B) motion, that the court’s underlying order

was too vague to be enforceable against the appellant. Although that case did not

involve a contempt proceeding, the court did hold that contempt “should not be used to

enforce a decree which does not give notice to the parties what is expected from them.”

Id. at 4, citing State ex rel. Fraternal Order of Police v. Dayton, 49 Ohio St.2d 219, 223,

fn. 4, 361 N.E.2d 428 (1977) (an order must be able to be understood by the party

against whom contempt is sought).

       {¶29} In the present case, the December 2002 Order of the trial court was not so

vague that El Gazzer was unable to understand what was required of her or that

compliance was impossible. The order stated: “Defendant to claim all 3 children for tax

purposes.”   These words can have only one meaning, that Lundy was the parent

entitled to claim the children for tax purposes. Although El Gazzer asserts that the

Order did not contain a statement specifying how long it should continue, this does not

render the Order vague, but, instead, should lead a reasonable person to believe that it

would continue unless changed. She points to nothing in the record that would lead the

parties, or this court, to believe that the Order was only to apply for one year.

       {¶30} El Gazzer also argues that it is unclear what “tax purposes” means. There

seems to be only one interpretation of this phrase, that the defendant could declare the




                                             7
children as dependents on his tax returns. El Gazzer again provides no other plausible

interpretation. If El Gazzer believed that the Order was improper or unclear, she could

have appealed the Order at the time it was issued, which she failed to do. She also

never attempted to modify the Order in the trial court or sought clarification as to her

obligations.   Based on the foregoing, we cannot find that the trial court abused its

discretion in enforcing the Order against El Gazzer.

       {¶31} The first assignment of error is without merit.

       {¶32} In her second assignment of error, El Gazzer argues that the December

2002 Order allowing Lundy to claim the children as dependents did not follow the

mandates of R.C. 3119.82. She essentially argues that since the court did not consider

the necessary factors to allow Lundy to declare the children as dependents for income

tax purposes, the underlying Order was invalid and she should not be held in contempt

of court.

       {¶33} Under R.C. 3119.82, a trial court may order that the non-residential parent

can claim children as dependents for federal tax purposes only upon a finding that it is

in the best interest of the children. El Gazzer argues that the court did not consider the

best interest of the children in 2002 when ordering that Lundy, the non-residential

parent, could claim the children as dependents.

       {¶34} This court has previously held that when considering an appeal from a trial

court’s finding of contempt, the appellant cannot raise as a defense challenges to the

merits of the underlying order from which the appellant did not directly appeal. Lucas v.

Lucas, 11th Dist. Lake No. 2007-L-058, 2007-Ohio-5607, ¶ 12. In Lucas, this court

found that a challenge to the allocation of day care expenses in the shared parenting




                                            8
plan was not a defense to the finding of contempt for failure to pay such expenses,

since “[a]n order issued by a court of competent jurisdiction over the subject matter and

the parties must be obeyed by the parties until it is reversed by orderly and proper

proceedings, if the trial court has committed error in rendering [the] same.” Id. This

court held that since the appellant did not appeal from the claimed error upon entry of

the decree of divorce and also did not object in subsequent proceedings modifying the

decree, he could not pursue such arguments in an appeal from a finding of contempt.

Id. (“[i]nviting a finding of contempt, and appealing from it, is no substitute for a proper

appeal from a trial court’s alleged error”).

       {¶35} Other districts have made similar findings, prohibiting an appellant from

raising arguments related to the merits of an order that was violated in an appeal from a

finding of contempt. Ahmad v. Ahmad, 2nd Dist. Montgomery No. 23740, 2010-Ohio-

5635, ¶ 23 (appellant could not question the validity of the original judgment in an

appeal from contempt of that order, because the judgment was valid until overturned by

direct attack); Bruce v. Bruce, 3rd Dist. Logan No. 8-82-3, 1982 Ohio App. LEXIS

15263, 4-5 (Aug. 11, 1982) (since the appellant failed to appeal from the decree in

which the order leading to the contempt was made, the order “remained a subsisting

enforceable order which the trial court had no right to review or reverse when the issue

of validity was raised merely in defense of the contempt motion”).

       {¶36} We also note there is no evidence that the trial court’s December 17, 2002

Order can be collaterally attacked, since El Gazzer has not shown that the judgment

was void and a nullity. Provided that a judgment was voidable, and not void, errors

relating to the underlying order must be raised on direct appeal, not in subsequent




                                               9
contempt proceedings. In re Marriage of Henson, 11th Dist. Trumbull No. 2006-T-0065,

2007-Ohio-4376, ¶ 29 and 31 (if the judgment is within the subject matter jurisdiction of

the court, but is “flawed and erroneous,” then the judgment is deemed voidable and “the

original order may not be collaterally attacked, but instead may be addressed only on

direct appeal”). In the present case, El Gazzer does not assert that the trial court was

without subject matter jurisdiction to render the judgment allowing Lundy to declare the

children as dependents, but instead argues only that the trial court did not consider the

necessary statutory factors in issuing the judgment. Since the judgment is not void,

arguments as to the merits of the judgment cannot be raised in the present appeal.

      {¶37} The second assignment of error is without merit.

      {¶38} In her fifth assignment of error, El Gazzer asserts a similar argument, that

the trial court should have followed the provisions of R.C. 3119.82, and made best

interest findings when it issued its April 21, 2010 Order requiring El Gazzer to submit

amended tax returns.

      {¶39} As discussed above, R.C. 3119.82 requires a court to consider the

children’s best interest when allowing a non-residential parent to claim them as

dependents. El Gazzer argues that since the court modified, revised, or reconsidered

“the order issued pursuant to motion filed by Plaintiff/Appellant on November 12, 2002,

it was required to conduct a hearing to consider the necessary statutory factors.”

      {¶40} The November 12, 2002 Motion to which El Gazzer refers is a Motion for

Modification of Child Support. The subsequent Order issued pursuant to that motion is

the December 17, 2002 Order, which stated that Lundy was to claim the children for tax

purposes and also increased his support obligation to $816.00 per month. El Gazzer




                                           10
fails to explain how the April 21, 2010 Order constitutes reconsideration or revisal of a

prior award of child support, specifically, the December 17, 2002 Order. The court did

not review the child support matter in its April 21, 2010 Order or even consider the

merits of the December 17, 2002 Order. It simply held that El Gazzer was required to

comply with the Order or be found in contempt.

       {¶41} El Gazzer points to no valid reason why the court, in enforcing its own

Order, was required to make a best interest evaluation. This is merely an attempt to

avoid the conclusion reached by this court in the previous assignment of error: whether

the trial court properly considered the necessary factors under R.C. 3119.82 when

issuing its Order in 2002 cannot be raised in a proceeding from a contempt finding ten

years after the original Order was issued.

       {¶42} The fifth assignment of error is without merit.

       {¶43} Under her third assignment of error, El Gazzer contends that various

orders from 2004, 2005, and 2006 failed to include findings regarding the allocation of

the income tax dependency issue in favor of Lundy. Since these various judgments did

not follow the mandates of R.C. 3119.82, she argues that they “vitiated any and all

effects of the 2002 order and created a legal void regarding which party was entitled to

claim the minor children as dependents.”

       {¶44} This appears to simply reframe the previous related assignments of error.

El Gazzer does not explain how the failure to address the issue of tax dependency in

the foregoing Orders affects the validity of the December 2002 Order. The court never

ruled that the Order was no longer in effect or altered its determination that Lundy was

to claim the children for the purposes of the tax filings.




                                             11
       {¶45} As was discussed extensively above, if El Gazzer believed that various

trial court orders were improper for failing to address the tax return issue, she could

have appealed from these judgments and raised such an error. A contempt proceeding

is not the appropriate venue for this argument.

       {¶46} El Gazzer cites various cases in support of the contention that there is a

presumption in favor of a residential parent to claim children as dependents for the

purposes of tax returns, unless the trial court makes a best interest finding, as outlined

previously. See Pahls v. Pahls, 12th Dist. Butler No. CA2009-01-005, 2009-Ohio-6923;

Singer v. Dickinson, 63 Ohio St.3d 408, 588 N.E.2d 806 (1992). These cases do not

apply in the present matter, since they address appeals on the merits of the claim, not

an appeal from a subsequent contempt order. We reiterate that El Gazzer fails as to

these claims because this issue is not properly before this court in a contempt case.

       {¶47} The third assignment of error is without merit.

       {¶48} In her fourth assignment of error, El Gazzer argues that the trial court

erred by failing to take evidence as to the reasonableness of the attorney fees that she

was ordered to pay, and the amount ordered was arbitrary.

       {¶49} A court’s decision on a request for attorney fees will not be reversed

absent an abuse of discretion. Welty v. Welty, 11th Dist. Ashtabula Nos. 2007-A-0013

and 2007-A-0015, 2007-Ohio-5217, ¶ 37; Holeski v. Holeski, 11th Dist. Portage No.

2009-P-0007, 2009-Ohio-6036, ¶ 19 (“[a] trial court has broad discretion in the award of

attorney fees”) (citations omitted).

       {¶50} As an initial matter, El Gazzer did not object to the magistrate’s

determination that she must pay attorney fees.          She did file Objections to the




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Magistrate’s Decision of September 20, 2011, but she objected only to the contempt

finding, not the payment of fees. “Except for a claim of plain error, a party shall not

assign as error on appeal the court’s adoption of any factual finding or legal conclusion *

* * unless the party has objected to that finding or conclusion as required by Civ. R.

53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv). This court has evaluated the failure to object to an

award of attorney fees under a plain error standard. Hanzlik v. Hanzlik, 11th Dist.

Portage No. 2009-P-0089, 2010-Ohio-3462, ¶ 58.

      {¶51} “In appeals of civil cases, the plain error doctrine is not favored and may

be applied only in the extremely rare case involving exceptional circumstances where

error, to which no objection was made at the trial court, seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging the

legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d

116, 679 N.E.2d 1099 (1997), syllabus.

      {¶52} There is no transcript of the proceedings before the court as they relate to

the request for attorney fees. However, El Gazzer did file a Proposed Statement of

Proceedings in the trial court, discussing the proceedings that occurred on September

20, 2011, during the Compliance Hearing, which was delivered to Lundy. The trial court

subsequently approved the Proposed Statement.             The statement provided that,

although there was a request for attorney fees at the hearing, no evidence was

presented to establish the amount of hours worked by Lundy’s attorney or the specific

fees that were incurred.

      {¶53} Pursuant to Ohio Appellate Rule 9(C), if no recording of the proceedings is

made, as was asserted by El Gazzer, “the appellant may prepare a statement of the




                                            13
evidence or proceedings from the best available means, including the appellant’s

recollection,” and serve that statement on the appellee.      The trial court can act to

approve this statement, which occurred in the present case. Since the terms of this rule

were met, this court will consider the statement as a record of the events that occurred

at the hearing.

       {¶54} As explained in the statement, there was limited evidence presented to

support Lundy’s request for attorney fees in the amount of $500. The only statement

related to the attorney fees, besides the general request at the hearing, was a

statement in the Motion to Show Cause that Lundy requested $500 in out of pocket

expenses for attorney fees. There is also no affidavit in the record demonstrating the

hours worked or the rate billed by counsel.

       {¶55} While we recognize that a trial court must determine whether an award of

attorney fees is reasonable, the court “may evaluate the work performed by an attorney

in a domestic-relations action * * * [a]nd * * * may use its own knowledge and

experience to determine the reasonableness [of] the amount claimed.” Welty, 2007-

Ohio-5217, at ¶ 42 (applying this law in domestic relations contempt proceedings), citing

Groza-Vance v. Vance, 162 Ohio App.3d 510, 2005-Ohio-3815, 834 N.E.2d 15, ¶ 44

(10th Dist.). “[W]here the amount of the attorney’s time and work is evident to the trier

of fact, an award of attorney fees, even in the absence of specific evidence to support

the amount, is not an abuse of discretion.” Woloch v. Foster, 98 Ohio App.3d 806, 813,

649 N.E.2d 918 (2nd Dist.1994).

       {¶56} When evaluating this issue under the plain error standard, we cannot find

that reversal is warranted. The trial court had a prior history with the parties and their




                                              14
counsel, which lasted several years. This court has held whether the trial court “is well

versed with the parties’ history and their counsel” is a consideration in determining

whether a fee award was reasonable. Welty at ¶ 42. The trial court was able to use this

history, as well as its knowledge and experience, to determine a reasonable fee. The

record clearly shows that several court orders were issued in this matter, which counsel

had to evaluate, and that counsel attended proceedings related to both the contempt

and the subsequent purge order. The work that was completed by counsel was evident

from the record. See Ansevin v. Ansevin, 7th Dist. Mahoning No. 09-MA-24, 2010-

Ohio-1301, ¶ 90 (“[t]he 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”) (citation omitted).

       {¶57} El Gazzer’s conduct in repeatedly failing to comply with the order to

amend her tax returns is also a consideration related to the reasonableness of the

attorney fees. See Welty at ¶ 40 (“[a]n award of attorney’s fees may be predicated

upon one party intentionally causing the other party to incur unnecessary, substantial

fees”) (citations omitted). El Gazzer refused to amend her tax returns and gave no valid

legal reason for her failure to do so.

       {¶58} Finally, several districts have noted that an award of a small or nominal

amount of attorney fees does not require a showing of reasonableness. Woloch, 98

Ohio App. 3d at 813, 649 N.E.2d 918; Beadle v. Beadle, 4th Dist. Scioto No. 03CA2911,

2004-Ohio-1400, ¶ 19 (finding a fee award in the amount of $500 to be nominal). In this

case, the amount awarded was relatively small, only $500, and does not warrant the




                                           15
extensive findings and evidence that would be necessary in a case involving a larger

amount of fees and more complicated and lengthy proceedings.

      {¶59} Based on the foregoing, and when evaluating this matter under a plain

error standard, we cannot find that the trial court erred in granting the request for

attorney fees in the amount of $500 or that the award was not reasonable.

      {¶60} The fourth assignment of error is without merit.

      {¶61} For the foregoing reason, the judgment of the Trumbull County Court of

Common Pleas, Domestic Relations Division, finding El Gazzer in contempt, ordering

her to serve 30 days in the Trumbull County Jail, and awarding attorney fees to Lundy,

is affirmed. Costs to be taxed against appellant.



      CYNTHIA WESTCOTT RICE, J.,

      THOMAS R. WRIGHT, J.,

      concur.




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