[Cite as Boyden v. Boyden, 2012-Ohio-1930.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

JOEL M. BOYDEN                                   JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                      Hon. William B. Hoffman, J.
                                                 Hon. Sheila G. Farmer, J.
-vs-
                                                 Case No. 11CAF110109
SHERYL MARIE BOYDEN

        Defendant-Appellee                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Delaware County Court of
                                              Common Pleas, Domestic Realtions
                                              Division, Case No. 07 DR A 08 0355


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       April 18, 2012


APPEARANCES:


For Plaintiff-Appellant                       For Defendant-Appellee


JOEL R. CAMPBELL                              LEEANN MASSUCCI
Strip, Hoppers, Leithart, McGrath             KENNETH R. KLINE
& Terlecky Co., LPA                           Massucci & Kline LLC
575 South Third Street                        250 Civil Center Drive, Ste. 630
Columbus, Ohio 43215                          Columbus, Ohio 43215
Delaware County, Case No. 11CAF110109                                                2

Hoffman, J.


      {¶1}    Plaintiff-appellant Joel M. Boyden (“Husband”) appeals the October 26,

2011 Judgment Entry entered by the Delaware County Court of Common Pleas, which

sustained in part and overruled in part the objections to the magistrate’s June 7, 2010

decision filed by Defendant-appellee Sheryl Marie Boyden (“Wife”).

                         STATEMENT OF THE FACTS AND CASE

      {¶2}    Husband and Wife were married on March 14, 2005. One child was born

as issue of said union, to wit: A.M.B. (dob 9/13/05). Husband filed a Complaint for

Divorce on August 8, 2007. Wife filed an Answer and Counterclaim on September 6,

2007. Wife moved out of the marital residence on October 7, 2007.

      {¶3}    The trial court issued temporary orders which required Husband to pay

Wife’s monthly car payments due on a Discover credit card as well as the minor child’s

monthly preschool costs. The matter came on for trial before the magistrate on October

14, 2008.

      {¶4}    Via Decision filed June 7, 2010, the magistrate ordered the parties be

granted a divorce. The magistrate found the parties had reached an agreement settling

“all financial and property issues” pursuant to which Husband would pay Wife “$65,000

as satisfaction of an equitable distribution of marital assets and debts.” Magistrate’s

June 7, 2010 Decision at para. 25.    The magistrate also found, prior to the marriage,

Wife owned real property located at 396 Shandon Court, Powell, Ohio, which became

rental property after the marriage.    Sometime in April or May, 2008, the parties

discovered the exiting tenants had “trashed” the residence. Husband assisted in the

cleaning which included trash removal, carpet removal, drywall repair, and painting as
Delaware County, Case No. 11CAF110109                                                     3


well as other general repairs. On May 30, 2008, Husband gave Wife $2000 to use

toward the mortgage and/or utilities. Husband had never paid Wife any other funds for

the property.

      {¶5}      The magistrate awarded Husband two of the three parcels of real property

owned by the parties and awarded the Wife the 396 Shandon Court property. After

dividing the parties’ assets and debt, the magistrate ordered Husband pay Wife “the

sum of $65,000.00 to complete the equitable distribution of tangible and intangible

property.” The magistrate did not make an award of spousal support to either party, but

ordered Husband to pay child support in the amount of $1,347.28/month plus

processing fees.     The magistrate issued a shared parenting plan.         The magistrate

further ordered Husband to pay Wife’s attorney fees.

      {¶6}      Husband filed objections to the magistrate’s decision relative to the award

of attorney fees; the cash property award rather than the QDRO to which the parties

had agreed; his continued payment of Wife’s automobile debt; and the shared parenting

plan. Wife filed a memorandum contra. The parties worked with the guardian ad litem

and resolved the shared parenting plan issues. An Agreed Shared Parenting Order was

filed February 4, 2011.

      {¶7}      Via Judgment Entry filed October 26, 2011, the trial court sustained in part

and overruled in part Husband’s objections to the magistrate’s decision. The trial court

also granted the parties a divorce and issued orders generally consistent with the

magistrate’s decision.

      {¶8}      It is from this judgment entry Husband appeals, raising the following

assignments of error:
Delaware County, Case No. 11CAF110109                                                  4


      {¶9}   “I. IT IS AN ABUSE OF DISCRETION AND ERROR FOR THE TRIAL

COURT TO IGNORE THE FINANCIAL SETTLEMENT OF THE PARTIES WITH AN

ORDER OF THE CONTINUATION OF DEBT PAYMENTS BY PLAINTIFF-APPELLANT

AFTER THE EFFECTIVE DATE OF THE DECREE OF DIVORCE.

      {¶10} “II. IT IS AN ABUSE OF DISCRETION AND ERROR FOR THE TRIAL

COURT TO IGNORE THE FINANCIAL SETTLEMENT OF THE PARTIES WITH AN

AWARD OF ATTORNEY FEES TO DEFENDANT-APPELLEE.”

                                               I

      {¶11} In his first assignment of error, Husband contends the trial court abused its

discretion and erred in ordering him to continue to pay Wife’s debt after the effective

date of the divorce decree thereby ignoring the parties’ settlement agreement.

      {¶12} Our standard of reviewing decisions of a domestic relations court is

generally the abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142.

The term abuse of discretion implies the court's attitude is unreasonable, arbitrary or

unconscionable. Id. at 219. When applying the abuse of discretion standard, this Court

may not substitute our judgment for that of the trial court. Pons v. Ohio State Med.

Board, (1993), 66 Ohio St.3d 619, 621.

      {¶13} The parties spend a good portion of their respective briefs arguing the

scope of the settlement agreement. Husband posits the $65,000 lump sum payment

included Wife’s attorney fees as well as Wife’s car payments; therefore, the trial court

should have credited him with the monies he paid after the effective date of the decree,

to wit: October 14, 2008. Wife, on the other hand, submits the agreement was informal

and was intended only as a partial settlement of some of the parties’ financial issues.
Delaware County, Case No. 11CAF110109                                                     5


However, in a letter dated May 20, 2008, written in response to a May 19, 2008

correspondence from Husband’s counsel,          Attorney Massucci, counsel for Wife,

indicated Wife was in agreement with Husband paying her “$65,000.00 in satisfaction of

all financial and property issues” except for pending child and spousal support issues.

      {¶14} A determination of whether the parties’ agreement was a complete or

partial settlement of the financial issues is not dispositive of the issue sub judice.

Husband testified, under the parties’ agreement, Wife would take responsibility for her

car payments once he paid her the lump sum amount of $65,000.               Wife similarly

testified she presumed Husband would not be responsible for the car payments

following the end of the divorce. As of the filing of the October 26, 2011 Judgment

Entry, over three years after the parties reached the agreement, Husband still had not

paid Wife any of the settlement monies. By failing to pay the agreed settlement amount,

Husband became the architect of his own demise. Husband could have, at any time,

paid Wife the $65,000.00 and ended his obligation to pay Wife’s car debt.

      {¶15} Husband’s first assignment of error is overruled.

                                               II

      {¶16} In his second assignment of error, Husband contends the trial court

abused its discretion and erred in awarding attorney fees to Wife thereby ignoring the

parties’ settlement agreement.

      {¶17} “An award of attorney fees in a domestic relations action is within the

sound discretion of the trial court and will not be reversed on appeal absent an abuse of

discretion.” McEnery v. McEnery, 10th Dist. No. 00AP–69, 2000 WL 1863370 (Dec. 21,

2000) at *3, citing Goode v. Goode, 70 Ohio App.3d 125, 134 (10thDist.1991).
Delaware County, Case No. 11CAF110109                                                           6


       {¶18} Initially, we must determine whether Husband preserved this error. It is

axiomatic a litigant's failure to raise an issue in the trial court waives the litigant's right to

raise that issue on appeal. Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 220, 574

N.E.2d 457, overruled on other grounds in Collins v. Sotka (1998), 81 Ohio St.3d 506,

692 N.E.2d 581

       {¶19} A review of the record reveals Husband failed to object to Wife’s testimony

relative to her attorney fees as well as the trial court’s admission of exhibits reflecting

such fees.

       {¶20} Assuming, arguendo, Husband properly preserved this error for our

review, we find the trial court did not abuse its discretion in awarding attorney fees of

$22,500.00 to Wife. Wife presented evidence she incurred over $26,000.00 in attorney

fees. Wife testified she charged $5,000.00 on one of Husband’s credit cards to pay

attorney fees.    While Wife acknowledged she was obligated to repay Husband the

$5000.00, and such was contemplated during the settlement discussions and,

ultimately, in the amount of money she received, there was no other testimony

establishing the settlement included, contemplated or considered Wife’s additional

attorney fees. As such we find the trial court did not abuse its discretion to awarding

them to Wife.

       {¶21} Husband’s second assignment of error is overruled.
Delaware County, Case No. 11CAF110109                                           7


      {¶22} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ W. Scott Gwin _____________________
                                        HON. W. SCOTT GWIN


                                        s/ Sheila G. Farmer __________________
                                        HON. SHEILA G. FARMER
Delaware County, Case No. 11CAF110109                                          8


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


JOEL M. BOYDEN                           :
                                         :
       Plaintiff-Appellant               :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
SHERYL MARIE BOYDEN                      :
                                         :
       Defendant-Appellee                :         Case No. 11CAF110109


       For the reasons stated in our accompanying Opinion, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ W. Scott Gwin _____________________
                                         HON. W. SCOTT GWIN


                                         s/ Sheila G. Farmer___________________
                                         HON. SHEILA G. FARMER
