[Cite as Brown v. Brown, 2017-Ohio-8175.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


ANTHONY E. BROWN                            :      JUDGES:
                                            :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                :      Hon. Craig R. Baldwin, J.
                                            :      Hon. Earle E. Wise, J.
-vs-                                        :
                                            :
DONA M. BROWN                               :      Case No. 2017CA00017
                                            :
        Defendant - Appellant               :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court
                                                   of Common Pleas, Domestic
                                                   Relations Divison, Case No. 2015-
                                                   DR-01191




JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  October 11, 2017




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

WENDY J. ROCKENFELDER                              KANI HARVEY HIGHTOWER
KEVIN R. L'HOMMEDIEU                               Lynda Harvey Williams & Associates, L.L.C
5502 Market Avenue, North, Suite B                 One Cascade Plaze, Suite 2100
Canton, Ohio 44721                                 Akron, Ohio 44308
Stark County, Case No. 2017CA00017                                          2

Baldwin, J.

        {¶1}   Defendant-appellant Dona M. Brown appeals from the December 28, 2016

Judgment Entry Decree of Divorce issued by the Stark County Court of Common Pleas,

Domestic Relations Division.

                           STATEMENT OF THE FACTS AND CASE

        {¶2}   Appellant Dona M. Brown and appellee Anthony E. Brown were married on

September 11, 1998. Four children were born as issue of such marriage namely, C.B.

(DOB 3/31/01), M.B. (DOB 1/27/03), S.B. (DOB 5/8/05) and T.B. (DOB 3/10/08).

        {¶3}   On December 4, 2015, appellee filed a complaint for a divorce against

appellant. Appellant, on January 6, 2016, filed an answer and counterclaim. Appellee filed

a reply to the counterclaim on January 19, 2016 and a Motion for Shared Parenting on

March 3, 2016. As memorialized in a Judgment Entry filed on April 5, 2016, the matter

was set for trial on June 2, 2016.

        {¶4}   Appellee filed an Amended Motion for Shared Parenting Plan on May 25,

2016.

        {¶5}   On June 2, 2016, the parties reached an agreement as to parenting and

signed a Shared Parenting Plan which was approved and adopted by the trial court. The

Magistrate, in an Order filed on June 6, 2016, continued the trial until June 24, 2016. Due

to a conflict in the Magistrate’s schedule, the matter, pursuant to a Magistrate’s Order

filed on June 7, 2016, was continued until August 22, 2016.

        {¶6}   Appellant’s counsel, on August 16, 2016, filed a Motion to Withdraw as

Counsel and a Motion for a Continuance of Trial. Attached to the former motion was an

August 8, 2016 e-mail from appellant to her counsel stating that she would be seeking
Stark County, Case No. 2017CA00017                                           3


other counsel and to please stop working on her case. In her e-mail, she asked to be

advised as to when she could come and pick up her file. The trial court granted the Motion

to Withdraw via a Judgment Entry filed on August 16, 2016. However, on the same day,

the trial court denied the motion seeking a reasonable continuance of the trial so that

appellant could obtain replacement counsel.

       {¶7}     Just prior to the commencement of trial on August 22, 2016, the parties

entered into a Separation Agreement and Amended Shared Parenting Plan. At the time,

appellant was not represented by counsel. The only issues remaining to be determined

at trial were spousal support, child support, and allocation of percentages for uninsured

medical costs. The following testimony was adduced at trial.

       {¶8}     Ralph Dublikar, the managing partner of the firm in which appellee is a

partner,      testified that appellant’s earnings were tied to the earnings of the firm. He

testified that, as a partner, appellee is responsible for paying his own Social Security,

Medicare, State taxes and local taxes. According to Dublikar, the base monthly salary for

all partners was $8,000.00 a month. However, because there have been times when there

were insufficient funds to pay such amount, at times appellant has earned $4,000.00 a

month. He further testified that “if a partner generates sufficient revenues um… in any

given month, that number goes up to eleven thousand.” Trial Transcript at 16.     Dublikar

testified that if an attorney generates a certain amount of money in a year, he or she

would be entitled to a bonus that is paid out the following year and is sometimes paid out

all at once and other times incrementally. According to him, the firm matches voluntary

contributions to appellee’s 401(k).
Stark County, Case No. 2017CA00017                                             4


       {¶9}    Dublikar testified that appellee earned a large bonus in the amount of

$39,000.00 that was paid to him in 2013 which, he testified, was an anomaly. Appellee

did not receive a bonus in 2014 and, in 2015, received a bonus in the amount of

$8,290.00. In 2015, appellee received a total of $135,656.00 including draws, bonuses,

and employer contributions to his 401(k) and HSA (health savings account) and for

employer paid family health insurance. Dublikar testified that appellee would not be

receiving a bonus in 2016. Dublikar further testified that the firm pays for appellee’s health

insurance but that the amount paid is treated as income to the partners. The firm also

pays money into a HSA (health savings account). Dublikar testified that appellee’s taxable

income would be reduced because appellee’s insurance expenses would not be as high

since the children were going to be covered under appellant’s insurance and that overall,

appellee was going to have $10,000.00 less in income. He also testified that appellee’s

HSA contributions were going to be reduced and that appellee would receive $1,500.00

less in income on his K-1 because of such reduction.

       {¶10} At the trial, appellee testified that appellant was 43 years old, was a physical

therapist working in the Canton City Schools for the Stark Educational Service Center

and that her gross wage was $67,842.00. Appellant has a Bachelors and a Master’s

Degree. He further testified that he had been paying temporary orders to appellant and

also was paying expenses on behalf of the children including school supplies and other

items in the amount of $170.00 at Wal-Mart and $216.75 at Famous Footwear to purchase

shoes for the children.    Appellee testified that in the future, without having to provide

health insurance for the children, his taxable income would be approximately

$124,000.00.
Stark County, Case No. 2017CA00017                                           5


       {¶11} When appellant was asked if she wanted to cross-examine appellee, she

indicated to the trial court that she was having trouble getting herself together and

requested a continuance. The Magistrate indicated that he was unable to grant a

continuance. Appellant did not call any witnesses or present any exhibits. She did cross-

examine appellee.

       {¶12} The Magistrate, in a Decision filed on September 9, 2016, recommended

that appellee pay appellant spousal support to appellant in the amount of $250.00 a

month for 72 months and child support in the amount of $1,500.00 a month with health

insurance or $1,341.07 a month when private health insurance is provided. He based his

decision on appellant earning a salary of $67,842.00 a year and appellee earning

$132,000.00 a year. He found that appellee’s income, not including bonuses, was

$124,000.00 a year and, including average $8,000.00 bonuses, was $132,000.00 a year.

The Magistrate also recommended that each party pay their own legal fees. Appellant

filed objections to the Magistrate’s Decision.

       {¶13} An objection hearing was held on December 8, 2016. At the hearing,

appellee presented exhibits to the trial court showing that, in September of 2016, he paid

$505.87 in expenses for the children not including $71.00 for half of their cell phone bills

and $510.00 a month for tuition and that, in October of 2016, he paid $794.81 a month in

expenses of the children not including the cell phone and tuition. He also presented an

exhibit showing that, in November of 2016, he paid a total of $969.26 not including the

cell phone and tuition.

       {¶14} Following the hearing held on December 8, 2016, the trial court, pursuant

to a Judgment Entry filed on the same day, sustained the objections in part, ordering that
Stark County, Case No. 2017CA00017                                            6


the order of spousal support was subject to the continuing jurisdiction of the trial court to

modify the order in amount only based upon a change of circumstances. The trial court

approved and adopted the remainder of the Magistrate’s Decision. A Judgment Entry

Decree of Divorce was filed on December 28, 2016.

       {¶15} Appellant now raises the following assignment of error on appeal:

       {¶16} I. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR

AS A MATTER OF LAW AND VIOLATED WIFE’S CONSTITUTIONAL DUE PROCESS

RIGHTS WHEN IT FAILED TO GRANT THE WIFE’S REQUEST FOR A CONTINUANCE

SO SHE COULD OBTAIN LEGAL REPRESENTATION AND REQUIRED HER TO

PROCEED PRO SE.

       {¶17} II. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR

AS IT RELATES TO THE COMPUTATION OF WIFE’S SPOUSAL SUPPORT, AS THE

DETERMINATION OF THE AMOUNT OF SPOUSAL SUPPORT FOR WIFE WAS AN

ABUSE OF DISCRETION, AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,

AND CONTRARY TO LAW.

       {¶18} III. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR

AS IT RELATES TO THE COMPUTATION OF CHILD SUPPORT, AS THE

DETERMINATION OF THE AMOUNT OF CHILD SUPPORT HUSBAND WAS TO PAY

WIFE WAS AN ABUSE OF DISCRETION, AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE, AND CONTRARY TO LAW.

       {¶19} IV. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR

AS A MATTER OF LAW WHEN IT FAILED TO CONSIDER THE WIFE’S REQUEST FOR

ATTORNEYS FEES.
Stark County, Case No. 2017CA00017                                              7


                                                  I

       {¶20} Appellant, in her first assignment of error, argues that the trial court erred

when it denied her request for a continuance of the trial. We disagree.

       {¶21} The decision to grant or deny a continuance is entrusted to the broad, sound

discretion of the trial court and will not be disturbed absent an abuse of discretion. Lemon

v. Lemon, 5th Dist. Stark No. 2010CA00319, 2011–Ohio–1878, citing State v. Unger, 67

Ohio St.2d 65, 423 N.E.2d 1078 (1981). In determining whether a trial court abused its

discretion in denying a motion for a continuance, an appellate court should consider the

following factors: (1) the length of the delay requested; (2) whether other continuances

have been requested and received; (3) the inconvenience to witnesses, opposing

counsel, and the court; (4) whether there is a legitimate reason for the continuance; (5)

whether the defendant contributed to the circumstances giving rise to the need for the

continuance, and other relevant factors, depending on the unique facts of each case.

Unger, supra, at 67–68, 423 N.E.2d 1078. The reviewing court must also weigh the

potential prejudice to the movant against the trial court's right to control its own docket. In

re Barnick, 8th Dist. No. 88334, 2007–Ohio–1720, ¶ 10, quoting Unger.

       {¶22} In the case sub judice, the trial was originally scheduled for June 2, 2016

but, as memorialized in a Magistrate’s Order filed on June 6, 2016, was rescheduled to

June 24, 2016. However, in an Order filed on June 7, 2016, the Magistrate continued the

trial until August 22, 2016 due to a conflict with his schedule.

       {¶23} On August 8, 2016, two weeks before trial, appellant sent an e-mail to her

counsel indicating that she wanted him to stop working on her case and that she would

be seeking other counsel. Appellant’s counsel, on August 16, 2016, filed a Motion to
Stark County, Case No. 2017CA00017                                             8


Withdraw and a Motion for a Continuance asking that appellant be given a reasonable

opportunity to obtain replacement counsel to represent her. While the trial court granted

the Motion to Withdraw, it overruled the request for a continuance.

       {¶24} Upon review of the record, we find that the trial court did not abuse its

discretion in denying appellant's request for a continuance because the trial court’s

decision was not arbitrary, unconscionable or unreasonable. Appellant contributed to the

circumstances giving rise to the need for the continuance as she chose to discharge

counsel two weeks before trial. In addition, the trial had previously been continued, and

the matter had been pending on the court's docket since December of 2015. Moreover,

when appellant appeared on August 22, 2016 for trial, she did not request a continuance

until it was time for her to cross-examine appellee.

       {¶25} Appellant’s first assignment of error is, therefore, overruled.

                                                II

       {¶26} Appellant, in her second assignment of error, contends that the trial court

erred in awarding her only $250.00 a month in spousal support for a period of 72 months.

       {¶27} Our standard of review of decisions as to spousal support is an abuse of

discretion. Snyder v. Synder, 5th Dist. Stark No. 2008CA00219, 2009–Ohio–5292, ¶ 28.

Abuse of discretion implies the trial court's attitude is unreasonable, arbitrary, or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶28} R.C. 3105.18 governs spousal support. Subsection (C) states the following:

       {¶29} (C)(1) In determining whether spousal support is appropriate and

reasonable, and in determining the nature, amount, and terms of payment, and duration
Stark County, Case No. 2017CA00017                                              9


of spousal support, which is payable either in gross or in installments, the court shall

consider all of the following factors:

        {¶30} (a) The income of the parties, from all sources, including, but not limited to,

income derived from property divided, disbursed, or distributed under section 3105.171

of the Revised Code;

        {¶31} (b) The relative earning abilities of the parties;

        {¶32} (c) The ages and the physical, mental, and emotional conditions of the

parties;

        {¶33} (d) The retirement benefits of the parties;

        {¶34} (e) The duration of the marriage;

        {¶35} (f) The extent to which it would be inappropriate for a party, because that

party will be custodian of a minor child of the marriage, to seek employment outside the

home;

        {¶36} (g) The standard of living of the parties established during the marriage;

        {¶37} (h) The relative extent of education of the parties;

        {¶38} (i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties;

        {¶39} (j) The contribution of each party to the education, training, or earning ability

of the other party, including, but not limited to, any party's contribution to the acquisition

of a professional degree of the other party;

        {¶40} (k) The time and expense necessary for the spouse who is seeking spousal

support to acquire education, training, or job experience so that the spouse will be
Stark County, Case No. 2017CA00017                                           10


qualified to obtain appropriate employment, provided the education, training, or job

experience, and employment is, in fact, sought;

       {¶41} (l) The tax consequences, for each party, of an award of spousal support;

       {¶42} (m) The lost income production capacity of either party that resulted from

that party's marital responsibilities;

       {¶43} (n) Any other factor that the court expressly finds to be relevant and

equitable.

       {¶44} The Magistrate, in his Decision, addressed all of the factors set forth above

and noted that there was evidence with respect to all of such factors except for (j) and

(m). The Magistrate found that appellant earned $67,842.00 a year and appellee

$132,000.00 a year, that both were in their forties and in good health, and that both had

retirement benefits that had been divided pursuant to the Separation Agreement. The

Magistrate further found that the parties had been married almost 18 years and had

significant debt that both would be burdened by. As noted by appellee, the trial court’s

spousal and child support awards results in appellant receiving over 50% of the net

disposable income. Finally, the trial court retained jurisdiction over spousal support.

       {¶45} Based on the foregoing, we find that the trial court did not abuse its

discretion in its spousal support award.

       {¶46} Appellant’s second assignment of error is, therefore, overruled.

                                                III

       {¶47} Appellant, in her third assignment of error, argues that the trial court erred

in deviating downward from the basic child support computation rather than upward.
Stark County, Case No. 2017CA00017                                            11


       {¶48} In reviewing matters concerning a child support deviation, the decision of

the trial court should not be overturned absent an abuse of discretion. Booth v. Booth, 44

Ohio St.3d 142, 541 N.E.2d 1028 (1989). In order to find an abuse of discretion, we must

find that the court's action is unreasonable, arbitrary, or unconscionable and not merely

an error of law or judgment. Blakemore, supra.

       {¶49} A trial court may order child support that deviates from the amount of child

support that would otherwise result from the use of the basic child support schedule and

the applicable worksheet if the amount calculated would be unjust or inappropriate and

would not be in the best interest of the child. Marker v. Grimm, 65 Ohio St.3d 139, 601

N.E.2d 496 (1992). When determining whether a departure from the guideline child

support amount is warranted, the trial court may consider whether a parent incurs

extraordinary costs associated with visitation. Hurst v. Hurst, 12th Dist. Warren No.

CA2013–10–100, 2014–Ohio–4762, citing R.C. 3119.23(D); Kemp v. Kemp, 5th Dist.

Stark No.2009CA00035, 2009–Ohio–6089. The court also may consider “[s]ignificant in-

kind contributions from a parent, including, but not limited to, direct payment for lessons,

sports equipment, schooling, or clothing.” See R.C. 3119.23(J).

       {¶50} R.C. 3119.22 provides that if the court deviates from the child-support

guidelines, it shall enter in the journal the amount of the child support calculated pursuant

to the basic child-support schedule and the applicable worksheet, plus its determination

that the amount would be unjust or inappropriate and would not be in the best interest of

the child, and findings of fact supporting its determination. Tennant v. Martin–Auer, 188

Ohio App.3d 768, 2010–Ohio–3489, 936 N.E.2d 1013 (5th Dist. Licking). However, the
Stark County, Case No. 2017CA00017                                           12

statute provides no “set method” to employ to formulate a deviation. Lopez–Ruiz v. Botta,

10th Dist. Franklin No. 11AP–577, 2012–Ohio–718.

        {¶51} In the case sub judice, the child support guideline worksheet supported an

order of child support requiring appellee to pay appellant $1,940.70 a month plus

processing with private health insurance and $1,781.71 per month plus processing and

$323.67 per month cash medical when private health insurance was not provided. At the

trial, appellee asked the trial court to deviate downward to a figure of $1,500.00 a month

in child support because of the Shared Parenting Plan and the additional expenses that

appellee pays for the children outside of the temporary order of child support.

        {¶52} Under the Shared Parenting Plan, appellee spends more time with the

children than under the standard visitation schedule. Moreover, under the Plan, appellee

agreed to pay half of the children’s’ tuition for private elementary and middle school. He

testified that he believed that the total was $500.00 a month. Appellee further testified

that he agreed to pay 50% of the children’s extracurricular activities costs and that he had

been paying expenses on behalf of the children including $170.00 at Wal-Mart for school

supplies and other items, $216.75 in August of 2016 at Famous Footwear for shoes,

$35.00 for haircuts and $30.00 for a boater’s license for the oldest son. Appellee testified

that when the children had expenses, whether they were with him or not, he paid for the

same.

        {¶53} The Magistrate, in his Decision, found that, based on the foregoing, the

guideline child support amount would be unfair, unjust and not in the best interest of the

children and that a downward deviation in the amount of child support was warranted.
Stark County, Case No. 2017CA00017                                             13


The trial court, in its December 8, 2016 Judgment Entry, approved and adopted such

determination.

       {¶54} We cannot say, based upon the record, that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. While appellant, at the objection hearing,

argued, in part, that there should be an upward deviation in child support based on the

fact that she would by paying for all of the private high school tuition for the children,

appellee’s counsel indicated to the trial court that appellee wanted his children to attend

the local public high school and that he conceded that, if appellant wanted the children to

go to private parochial school, appellant could pay for the tuition. Moreover, at the

objection hearing, appellee, as is stated above in the facts, provided the trial court with

documentation was to other significant expenses that he had incurred for the benefit of

the children.

       {¶55} Appellant’s third assignment of error is, therefore, overruled.

                                                 IV

       {¶56} Appellant, in her fourth assignment of error, maintains that the trial court

erred in failing to consider her request for attorney’s fees.

       {¶57} R.C. 3105.73(A) states the following:

                In an action for divorce, dissolution, legal separation, or annulment

       of marriage or an appeal of that action, a court may award all or part of

       reasonable attorney's fees and litigation expenses to either party if the court

       finds the award equitable. In determining whether an award is equitable, the

       court may consider the parties' marital assets and income, any award of
Stark County, Case No. 2017CA00017                                          14


      temporary spousal support, the conduct of the parties, and any other

      relevant factors the court deems appropriate.

      {¶58} As explained by this Court in Dotts v. Schaefer, 5th Dist. Tuscarawas No.

2014 AP 06 0022, 2015–Ohio–782, ¶ 17:

             The resolution of a request for attorney fees is vested in the sound

      discretion of the trial court and will not be overturned upon review absent a

      showing of an abuse of discretion. Bagnola v. Bagnola, 5th Dist. Stark No.

      2004CA00151, 2004–Ohio–7286 [2004 WL 3090245], ¶ 36. While the trial

      court has discretion in determining the amount of attorney fees, the court

      must base its decision on evidence showing the reasonableness of the time

      spent on the matter and the hourly rate. Id. Where the amount of an

      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. Hawk v. Hawk, 5th Dist. Tuscarawas No.

      2002AP040024, 2002–Ohio–4384 [2002 WL 1969845], ¶ 28.

      {¶59} At the trial before the Magistrate, appellant never specifically requested

attorney’s fees. Rather, appellant asked that her new higher full-time salary not be

included into a consideration by the trial court but that her previous, part-time salary be

considered based on her substantial attorney’s fees. She did not present any evidence

with respect to the amount of or reasonableness of her attorney’s fees. As is stated

above, the Magistrate, in his Decision, recommended that each party pay their own legal

fees. The trial court, in its December 8, 2016 Judgment Entry, approved and affirmed
Stark County, Case No. 2017CA00017                                         15


such decision with one limited exception, stating that it had considered the factors set

forth in R.C. 3105.73(A), cited above. We find no abuse of discretion.

      {¶60} Appellant’s fourth assignment of error is, therefore, overruled.

      {¶61} Accordingly, the judgment of the Stark County Court of Common Pleas,

Domestic Relations Division, is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Earle Wise, J. concur.
