[Cite as Branden v. Branden, 2017-Ohio-7477.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 104523




                                  CARI C. BRANDEN

                                                      PLAINTIFF-APPELLANT

                                                vs.

                                  JOHN T. BRANDEN
                                                      DEFENDANT-APPELLEE




                                          JUDGMENT:
                                           AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                Domestic Relations Division
                                  Case No. DR-06-310903

        BEFORE: S. Gallagher, J., Stewart, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: September 7, 2017
ATTORNEYS FOR APPELLANT

Joseph G. Stafford
Nicole A. Cruz
Stafford Law Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, Ohio 44114


ATTORNEY FOR APPELLEE

Mark A. Ziccarelli
Ziccarelli & Martello
8754 Mentor Avenue
Mentor, Ohio 44060
SEAN C. GALLAGHER, J.:

       {¶1} Appellant, Cari C. Branden (“Cari”), appeals the May 10, 2016 decision of

the Cuyahoga County Court of Common Pleas, Division of Domestic Relations. Upon

review, we affirm the decision of the trial court.

       BACKGROUND

       {¶2} The parties to this action were divorced in 2008, after a nearly 23-year

marriage. Relative to this action, appellee, John T. Branden (“John”), was ordered to pay

spousal support to Cari in the amount of $2,000 per month indefinitely, and as additional

spousal support was ordered to pay Cari’s attorney fees. On appeal, in Branden v.

Branden, 8th Dist. Cuyahoga No. 91453, 2009-Ohio-866 (“Branden I”), this court

reversed and remanded the matter for the trial court to (1) clarify its reasoning and

provide sufficient detail relative to the factors set forth in R.C. 3105.18(C) for the basis of

the spousal support award, (2) to reassess the allocation of the tax exemption for child

support in accordance with R.C. 3119.82, and (3) to determine whether and in what

amount attorney fees should be awarded as spousal support, considering the factors of

R.C. 3105.08(C)(1), and to distinguish between attorney fees awarded as spousal support

and those independently awarded.

       {¶3} On remand, the court magistrate issued a decision on March 31, 2011, which

purported to modify “nunc pro tunc” the judgment entry of divorce of January 8, 2008,

and that decision was adopted in its entirety by the trial court on April 20, 2011. The

magistrate’s decision included findings of fact and conclusions of law based on the
parties’ circumstances at the time of the divorce decree. Relative herein, John again was

ordered to pay Cari spousal support in the amount of $2,000 per month for an indefinite

period, subject to the court’s continuing jurisdiction. Additionally, John was ordered to

pay Cari’s attorney fees in the amount of $28,153. The magistrate’s decision indicated

that “[t]his award is in the nature of support.” The trial court rendered judgment in that

amount, with execution stayed “so long as [John] pays the sum of $700.00 per month

against the judgment.” Further, in the event of a default or discharge in bankruptcy, the

court retained jurisdiction “to award [Cari] additional spousal support from [John].” No

appeal was taken from that decision.

       {¶4} Approximately two months later, on June 30, 2011, Cari filed a motion to

show cause and motion for attorney fees, claiming John failed to comply with the

court-ordered monthly payment of spousal support and failed to make payments toward

the court-ordered attorney fees. On July 18, 2011, John filed a motion to modify spousal

support, alleging a change in circumstances. A hearing was held on the motions before a

court magistrate. On December 31, 2013, the magistrate issued a decision that granted

Cari’s motions and denied John’s motion.          Both parties filed objections to the

magistrate’s decision.

       {¶5} On July 23, 2014, the trial court issued a detailed decision sustaining John’s

objections and overruling Cari’s objections. The court substituted its judgment for the

magistrate’s decision.
       {¶6} Cari filed an appeal that was dismissed for lack of a final appealable order

because the trial court had not resolved the issue of support arrears. After certified

support calculations were filed and an opportunity to object was provided, the trial court

issued a final judgment entry on May 20, 2016, that included the determination of support

arrearage.

       {¶7} Thereafter, Cari timely filed this appeal. She raises seven assignments of

error for our review.

       STANDARD OF REVIEW

       {¶8} Civ.R. 53(D)(4)(d) instructs that a trial court “shall undertake an independent

review as to the objected matters to ascertain that the magistrate has properly determined

the factual issues and appropriately applied the law.” On appellate review, a trial court’s

ruling on objections to a magistrate’s decision will not be reversed absent an abuse of

discretion.    Hissa v. Hissa, 8th Dist. Cuyahoga Nos. 99498 and 100229,

2014-Ohio-1508, ¶ 17. An abuse of discretion implies a decision that is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).
         CONTEMPT — SPOUSAL SUPPORT

         {¶9} We review a trial court’s determination of contempt for an abuse of

discretion. Hissa at ¶ 21. Under her first assignment of error, Cari claims the trial court

erred by failing to hold John in contempt for nonpayment of spousal support and attorney

fees from February 26, 2009, through April 20, 2011. That is the period of time from

when the appeal in Branden I was decided until the trial court issued its decision upon

remand imposing spousal support and awarding attorney fees. The trial court’s April 20,

2011 decision was stated to modify “nunc pro tunc” the judgment entry of divorce of

January 8, 2008. We recognize that the April 20, 2011 decision was not appealed.

However, the trial court properly recognized that was an improper use of a nunc pro tunc

order.

         {¶10} “Civ.R. 60(A) permits a trial court, in its discretion, to correct clerical

mistakes which are apparent on the record, but does not authorize a trial court to make

substantive changes in judgments.” State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97,

100, 1996-Ohio-340, 671 N.E.2d 236. “[N]unc pro tunc entries are limited in proper use

to reflecting what the court actually decided, not what the court might or should have

decided or what the court intended to decide.” Id., citing State ex rel. Fogle v. Steiner,

74 Ohio St.3d 158, 163-164, 1995-Ohio-278, 656 N.E.2d 1288.

         {¶11} The trial court could not effectuate substantive changes regarding the award

of spousal support and attorney fees via a nunc pro tunc order. As a result of Branden I,

the trial court’s divorce decree was affirmed, but the matter was reversed and remanded
with regard to the determination of spousal support and attorney fees. Thus, John did not

become obligated to Cari for spousal support until the April 20, 2011 decision of the trial

court.

         {¶12} Nonetheless, we recognize that the spousal support obligation was

effectively imposed retroactively and the amounts were accounted for in the arrearage

calculation. Further, the trial court found, and John concedes, that he was in contempt

for failing to make any payments following the April 20, 2011 decision. Upon review,

we overrule the first assignment of error.

         CONTEMPT — ATTORNEY FEES AWARD

         {¶13} Under her second assignment of error, Cari claims the trial court erred by

failing to hold John in contempt for nonpayment of attorney fees. John admitted that he

did not make any payments toward the attorney fees awarded to Cari. The trial court

found that because the award of attorney fees in the amount of $28,153 had been reduced

to judgment, it could not be enforced by contempt.

         {¶14} The Supreme Court of Ohio has stated that “punishment for violation of

divorce decree provisions does not impinge upon the constitutional prohibition against

imprisonment for debts.” Pugh v. Pugh, 15 Ohio St.3d 136, 142, 472 N.E.2d 1085

(1984), citing Harris v. Harris, 58 Ohio St.2d 303, 390 N.E.2d 789 (1979). Therefore,

contempt proceedings may be brought for failing to comply with property division or

support obligations in a divorce decree. See Harris. Nevertheless, the parties dispute

whether a divorce litigant may be held in contempt for the failure to pay an obligation
reduced to judgment. There appears to be a split in authority on this issue. See Barton

v. Barton, 2d Dist. Greene No. 2016-CA-12, 2017-Ohio-980, ¶ 134-135 (finding that

subjecting a divorce litigant to contempt for failing to pay attorney fees awarded in a

divorce decree does not violate the constitutional prohibition against imprisoning a party

for debt); Collette v. Baxter, 9th Dist. Summit No. 25821, 2012-Ohio-1333, ¶ 12 (finding

the fact that the trial court phrased its order in language akin to a judgment did not affect

the court’s ability to enforce its order by contempt proceedings); Sizemore v. Sizemore,

12th Dist. Warren No. CA2009-04-045, 2010-Ohio-1525, ¶ 18 (finding it was

unconstitutional to hold a party in contempt for failing to pay a child support arrearage

that had been reduced to a lump sum arrearage); Gibson v. Gibson, 5th Dist. Stark No.

2011-CA-00186, 2012-Ohio-1161, ¶ 36 (following Sizemore).1

       {¶15} We find persuasive the court’s reasoning in Seaman v. Sloan,

2016-Ohio-5432, 60 N.E.3d 1270 (6th Dist.), wherein the court looked to the nature of

the obligation and found that because the lump sum judgment was in the nature of

support, it did not violate the constitutional prohibition against imprisonment for debts.

Id. at ¶ 25. Nonetheless, the court found the obligor could not be found in contempt

because there was no continuing order to make monthly payments. Id. at ¶ 26. Rather,



       1
          Contrary to appellee’s argument, the decision in Hissa, 8th Dist. Cuyahoga Nos. 99498 and
100229, 2014-Ohio-1508, does not support application of Sizemore herein. In Hissa, the court did
not reach the application of Sizemore because the property division debt had not been reduced to
judgment, and the trial court did not make a finding of contempt for the failure to pay an award of
attorney fees. Hissa at ¶ 23-28.
execution on the lump sum judgment was stayed on the condition of the obligor making

payments. Id.

       {¶16} In this case, the trial court recognized that the April 20, 2011 award of

attorney fees had been reduced to judgment and that execution on that judgment had been

stayed so long as John paid $700 per month against the judgment. The court recognized

that Cari never appealed that decision, and that John’s failure to pay the $700 per month

had the effect of lifting the stay and permitting Cari to execute on the judgment.

Therefore, the trial court did not find appellant in contempt. Upon this record, we find

no abuse of discretion by the trial court. Appellant’s second assignment of error is

overruled.

       TRANSFER OF 401(k)

       {¶17} Under the third assignment of error, Cari claims the trial court erred by

failing to transfer John’s 401(k) to Cari as partial satisfaction of Cari’s attorney fees.

The trial court found that the magistrate incorrectly ordered the transfer of John’s 401(k)

to Cari as partial satisfaction of the judgment of attorney fees.

       {¶18} R.C. 3105.73(D) authorizes a court to designate an award of attorney fees as

spousal support.     R.C. 3121.03(B)(1) gives the court jurisdiction to require, in

satisfaction of a support order, the deduction of funds that are not exempt under the law

from execution, attachment, or other legal process. A trial court may attach an obligor’s

funds to secure support payments. Sherman v. Sherman, 8th Dist. Cuyahoga No. 55711,

1989 Ohio App. LEXIS 4981, 11 (Oct. 5, 1989).
       {¶19} The record reflects that the March 31, 2011 magistrate’s decision deemed

the award of attorney fees to Cari as “in the nature of support.” Although the trial court

erred by finding otherwise, the trial court also considered “the possible income tax

ramifications of raiding [John’s] 401(k) account to pay [Cari’s] attorney fees” and

declined to order the transfer of the 401(k) account.        We must recognize that the

language of R.C. 3105.73(B)(1) is permissive, not mandatory.

       {¶20} We find that it was within the trial court’s discretion to decline to order the

transfer of John’s 401(k) account in partial satisfaction of the outstanding attorney fees

owed to Cari. Appellant’s third assignment of error is overruled.

       MODIFICATION OF SPOUSAL SUPPORT

       {¶21} Under her fourth assignment of error, Cari claims the trial court erred by

awarding a spousal support modification to John effective August 1, 2011, and requiring

a recalculation of arrearages owed by John. It is not disputed that in the divorce decree

the trial court expressly reserved jurisdiction to modify spousal support.

       {¶22} A trial court’s decision to modify spousal support will not be reversed

absent an abuse of discretion.      Brzozowski v. Brzozowski, 8th Dist. Cuyahoga No.

101013, 2014-Ohio-4820, ¶ 20. The party seeking the modification of spousal support

has the burden of establishing the modification is warranted. Id. In order to warrant a

modification of an existing order for spousal support, it must be shown that (1) “[t]he

change in circumstances is substantial and makes the existing award no longer reasonable

and appropriate[,]” and (2) “[t]he change in circumstances was not taken into account by
the parties or the court as a basis for the existing award when it was established or last

modified[.]” R.C. 3105.18(F)(b). “‘[W]hether modification is warranted depends on all

the facts and circumstances relevant to the nature and amount of support per

R.C. 3105.18(C).’” Brzozowski at ¶ 22, quoting Tremaine v. Tremaine, 111 Ohio App.3d

703, 707, 676 N.E.2d 1249 (2d Dist.1996).

       {¶23} Initially, we must recognize that the March 31, 2011 magistrate’s decision

that was adopted by the trial court was issued upon remand from Branden I, and the

spousal support determination was based on the parties’ circumstances at the time of the

parties’ divorce. Thus, the change in circumstances was not taken into account as a basis

for the spousal support award established therein.

       {¶24} The magistrate recognized in the December 31, 2013 decision that with

regard to the last spousal support order, the determination of John’s income was from his

employment by Visi-Track Worldwide, L.L.C., and was conservatively figured at

$110,000. Evidence was presented that John left Visi-Track in April 2009 because his

salary had been cut in half because of the company’s drastic reduction in business from

market decline. John became employed by Guardian Title at a base salary of $70,000,

with the opportunity to earn commissions. However, credible evidence showed that John

had not qualified for any commissions. The magistrate found there was “a significant

change in circumstances relative to [John’s] prior income.” Additionally, there was

evidence that Cari’s income had increased from $24,000 to $34,257.60 per year. Other

evidence also was introduced as to the parties’ income and expenses. Despite finding
that each of the parties had experienced a significant change of circumstances that could

warrant a modification of spousal support, the magistrate denied the motion to modify

after considering John’s failure to pay spousal support.

       {¶25} The trial court determined that the motion to modify had merit and should

have been granted.      Further, the trial court determined that the magistrate had

erroneously found an additional $6,000 per year should be added back to John’s income.

In determining the spousal support modification, the court used the FinPlan analysis and

considered the tax consequences of a spousal support award, as required by R.C.

3105.18(C)(1)(l). The court further indicated it had considered the factors set forth in

R.C. 3105.18(C) that had actually changed since the last order, and in particular

considered R.C. 3105.18(a), which addresses the income of the parties from all sources.

The court found that the remaining factors in R.C. 3105.18 had not changed and

continued to justify a support award, but that the amount of the award was no longer

appropriate and reasonable. After using the FinPlan analysis and reviewing the factors in

R.C. 3105.18(C), the court modified the spousal support award to $1,275.00 per month,

which it found appropriate and reasonable.

       {¶26} Although Cari challenges the trial court’s use of the FinPlan analysis, as

stated by one court: “even though the court used the [FinPlan] analysis as a tool to

calculate an even division of Husband’s earnings, its underlying spousal support decision

was based on the factors outlined in Section 3105.18(C), not a mathematical formula.”

Organ v. Organ, 2014-Ohio-3474, 17 N.E.3d 1192, ¶ 15 (9th Dist.).
        {¶27} We find no abuse of discretion by the trial court in awarding John a

modification of spousal support effective August 1, 2011, and requiring a recalculation of

arrearages owed. Appellant’s fourth assignment of error is overruled.

        AWARD OF ADDITIONAL ATTORNEY FEES

        {¶28} Under her fifth assignment of error, Cari argues that the trial court erred by

failing to award her full attorney fees incurred from January 9, 2008, through April 22,

2013.

        {¶29} The attorney fees Cari sought included the fees and expenses incurred

during the appeal of Branden I, the subsequent remand and further proceedings before the

trial court, as well as her fees incurred since the June 2011 decision of the trial court.

The trial court found that Cari provided insufficient notice under due process principles to

alert John to the fact that she was seeking fees incurred prior to June 30, 2011, and that

she first articulated a request for appeal-related fees in May 2012, which was three years

after Branden I was decided and almost one year after she filed her motion to show cause.

 We find no abuse of discretion in this determination.

        {¶30} The trial court reduced the amount awarded by the magistrate from $18,500

to $5,800. The court awarded reasonable attorney fees that were directly related to

Cari’s prosecution of the motion to show cause. The court acted within its discretion in

excluding amounts related to defending John’s motion to modify spousal support, which

was granted by the trial court, and by declining to award fees related to a motion to strike

and/or dismiss John’s motion to modify. The court also declined to award fees related to
a motion for protective order that was filed by plaintiff’s counsel. The $5,800 attorney

fees award was not designated as spousal support, and John was ordered to pay the

amount as a condition of purging his contempt. 2 Finding no abuse of discretion, we

overrule appellant’s fifth assignment of error.

       INTEREST

       {¶31} Under her sixth assignment of error, Cari claims the trial court erred by

failing to award interest from January 8, 2008.            The trial court recognized the

magistrate’s determination that Cari had failed to comply with the terms of Loc.R. 20 of

the Court of Common Pleas of Cuyahoga County, Domestic Relations Division, relative

to the calculation of any interest on sums owed to her. The court further found that Cari

had failed to establish any legal basis for the interest sought, that no judgment of

arrearages had ever been entered on which interest could accrue pursuant to R.C.

3123.17(A)(2), that postjudgment interest continued to accrue on the April 20, 2011

judgment of attorney fees of $28,153, and that prejudgment interest on the attorney fees

was neither requested nor permissible.

       {¶32} Loc.R. 20(F) of the Cuyahoga County Common Pleas Court, Domestic

Relations Division, requires a party requesting interest on unpaid periodic support to

submit a simple interest computation consistent with R.C. 1343.03 at the hearing, and

states that the failure to do so “will result in a denial of the request.” The record reflects


       2
        A court may make the payment of attorney fees a condition of purging contempt and jail
contemnors for failing to pay attorney fees. Barton, 2d Dist. Greene No. 2016-CA-12,
2017-Ohio-980, at ¶ 134.
that Cari did not submit a simple interest computation at the hearing, but rather she filed

the computation as an exhibit to her written final argument on May 14, 2014.

Furthermore, R.C. 3123.17(A)(2) authorizes the imposition of interest on support

arrearages “from the date the court specifies as the date of default to the date the court

issues the new order requiring the payment of support” if the court determines the default

was willful. Thus, Cari’s claim for prejudgment interest from January 8, 2008, was not

legally permissible.

       {¶33} As to any interest on attorney fees, the trial court properly determined that

postjudgment interest should run on the judgment of attorney fees from April 20, 2011.

Finding no abuse of discretion by the trial court, appellant’s sixth assignment of error is

overruled.

       CONCLUSION

       {¶34} Upon review, we find the trial court did not err by (1) declining to hold John

in contempt for nonpayment of spousal support and attorney fees from February 26, 2009,

through April 20, 2011; (2) declining to hold John in contempt for nonpayment of the

April 20, 2011 court-ordered attorney fees; (3) declining to order the transfer of John’s

401(k) to Cari in partial satisfaction of the outstanding attorney fees owed to Cari; (4)

awarding John a spousal support modification and requiring a recalculation of arrearages

owed; (5) declining to award Cari attorney fees from January 9, 2008, and those unrelated

to pursuing her motion to show cause; and (6) not awarding interest from January 8, 2008.

       {¶35} Judgment affirmed.
       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court, domestic relations division, to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and
LARRY A. JONES, SR., J., CONCUR
