Branscum v. Sullenberger , 2021 Ohio 3250 ( 2021 )

[Cite as Branscum v. Sullenberger, 2021-Ohio-3250.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
WENDY BRANSCUM :
:
Plaintiff-Appellant : Appellate Case No. 2020-CA-23
:
v. : Trial Court Case No. 2017-DR-99
:
SCOTT EDWARD SULLENBERGER, : (Domestic Relations Appeal)
et al. :
:
Defendants-Appellees :
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OPINION
Rendered on the 17th day of September, 2021.
...........
MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 West Second Street, Suite 2103,
Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
HARRY G. BEYOGLIDES, JR., Atty. Reg. No. 0018959, 130 West Second Street, Suite
1622, Dayton, Ohio 45402
Attorney for Third Party Defendant-Appellee, Judith A. LaMusga
.............
TUCKER, P.J.
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{¶ 1} Plaintiff-Appellant Wendy Branscum appeals from an order of the
Champaign County Family Court, finding her in contempt and ordering her to pay attorney
fees and costs. As grounds for this appeal, Branscum asserts that the court's decision
was an abuse of discretion because there was no evidence the fees were reasonable and
necessary and because some of the fees were incurred for expenses not related to the
finding of contempt. Because we find no abuse of discretion, we affirm.
I. Facts and Procedural History
{¶ 2} In May 2017, Wendy Branscum filed a complaint for divorce from her
husband, Scott Sullenberger. Thereafter, attorney Judith LaMusga, acting as guardian
for the estate of H.H., intervened in the divorce action in order to create a constructive
trust for real estate belonging to the estate of H.H. that had been acquired by Branscum.
A hearing on the divorce action was held in August 2018, at which time the parties’
agreement was set forth on the record. A final judgment and decree of divorce was filed
on December 2018. Of relevance hereto, the decree stated:
The parties reside in a residence located at 12893 Wolcott Rd., St.
Paris, Ohio, 43072. The real estate is deeded to [Branscum] and it was
purchased before the marriage by the [H.H.] Revocable Trust. The parties
agree the property is to be sold and the proceeds from the sale to be placed
into a Constructive Trust created by the court. The court will then transfer
jurisdiction of the Trust to the Montgomery County Probate Court, which will
assume jurisdiction over the issue of disbursement of the real estate
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proceeds. The parties agree that is the appropriate forum to determine
whether [Branscum] or [Sullenberger] are entitled to any proceeds from the
real estate sale proceeds for money they invested in or otherwise expended
into the real estate for improvements, liabilities, taxes, ownership,
construction, etc.
***
[Sullenberger shall] vacate the real estate within thirty days of the
filing of the Decree of Divorce. * * * [Branscum] shall cooperate with Judith
LaMusga in obtaining an appraisal of the real estate, at the cost of the [H.H.]
Guardianship. Thereafter, [Branscum] shall select a realtor familiar with
Champaign County real estate, subject to final approval by Ms. LaMusga,
to list the real estate. The parties will cooperate as necessary in executing
the listing agreement. Ms. LaMusga has the right to review and approve
the listing agreement.
[Branscum] and Ms. LaMusga will agree to defer to the realtor’s
recommendations as to list price, improvements to be made, or any other
suggestions to list and sell the property at the highest obtainable price.
[Branscum] will maintain the house in showing condition, will not
unreasonable [sic] deny showings, and will otherwise cooperate with
reasonable requests to assist in the marketing and sale of the property.
The parties will accept all reasonable offers, at the recommendation
of the realtor, and reasonable offers are considered to be within five percent
(5%) of the current list price. Ms. LaMusga has the right to review and
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approve any offer [of] sale.
[Branscum] will vacate the residence consistent with the terms of the
sale. [Branscum] may reside in the residence rent free pending the sale.
She will pay all utilities and taxes and all other expenses she has historically
paid.
{¶ 3} The court expressly retained jurisdiction to enforce its orders regarding the
real estate.
{¶ 4} In July 2019, LaMusga filed a motion to show cause which sought to hold
Branscum in contempt for failing to comply with the terms of the divorce decree as
applicable to the real estate. According to the motion, Branscum refused to sign
documents regarding the sale of the real estate and also instructed the realtor to take the
residence off the market. During a scheduling hearing held on October 1, 2019, the
parties reached an agreement requiring Branscum to sign a purchase contract she had
previously refused to sign. That agreement was reduced to a written order filed on
October 1, 2019.
{¶ 5} On October 7, 2019, LaMusga filed a second motion to show cause which
sought to hold Branscum in contempt for failing to comply with the court’s orders. The
motion stated that, while Branscum had signed the purchase contract, she had altered it
by making handwritten changes to the contract. Specifically, Branscum changed the
purchase price from $160,000 to $205,000, and she delayed the closing date. The
matter was set for a November hearing date.
{¶ 6} On October 29, 2019, LaMusga filed a motion for injunctive relief and a
restraining order. In the motion, LaMusga stated that Branscum continued to refuse to
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sign the appropriate documents regarding the sale of the property and that Branscum had
damaged the property. The following day, the court granted the motion and ordered
Branscum to maintain the house, to cause no more damage thereto, and to cease
removing fixtures. The court’s decision authorized LaMusga to sign documents
extending the listing contract and the offer of purchase made by potential buyers. The
court’s decision ordered the closing to take place “as soon as possible after the November
13, 2019 Show Cause Hearing but no later than December 5, 2019.” Branscum was
ordered to vacate the premises prior to the closing, to sign all closing documents, and to
present the keys to the premises at the closing.
{¶ 7} On November 22, 2019, the court filed a decision stating, in pertinent part,
as follows:
The Court met with counsel for the parties on November 20, 2019, in lieu of
a pretrial hearing on [LaMusga’s] Motion for Contempt filed October 7, 2019.
IT IS ORDERED AS FOLLOWS:
1. Plaintiff Wendy Branscum is to pay the following prior to closing;
- A Certificate of Judgment from Portfolio Recovery Associates, LLC in
the amount of $1,065.58;
- Delinquent taxes to be computed as of the closing date. The delinquent
taxes as of November 20, 2019, were in the approximate amount of
$7,194.70. The final amount is to be computed at closing and paid by
Plaintiff, Wendy Branscum. According to the Final Judgment and
Decree of Divorce, Plaintiff Wendy Branscum is to pay all utilities and
taxes.
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- All utilities to be calculated as of the closing date.
2. For the closing date of November 27, 2019, Plaintiff Wendy Branscum
shall do the following:
- At 1:00 p.m. on November 27, 2019, Plaintiff Wendy Branscum is to
permit the purchasers and their agent into the house located at 12893
Wolcott Road, Saint Paris, Ohio, to be inspected to meet requirements.
- At 3:00 p.m. on November 27, 2019, Plaintiff Wendy Branscum is to
appear * * * for the closing.
- Plaintiff Wendy Branscum shall sign the deed. If she does not, then
Attorney Judith A. LaMusga may sign the deed.
{¶ 8} The court’s order also continued the hearing on the motion for contempt to
December 11, 2019. Subsequent orders continued the hearing to January 2020.
{¶ 9} On January 2, 2020, the court filed a journal entry noting that the closing on
the sale of the property had occurred. On January 6, 2020, the court filed a journal entry
noting that the closing proceeds of $140,046.17 had been deposited with the court. The
entry ordered the clerk to distribute a check for the proceeds to the Montgomery County
Probate Court.
{¶ 10} On January 31, 2020, LaMusga filed a third motion to show cause, which
sought to hold Branscum in contempt for failing to pay the certificate of judgment and
delinquent taxes as required by the order filed November 22, 2019. LaMusga stated
those monies had to be paid from the closing costs due to Branscum’s failure to abide by
the terms of the order. The motion requested the court to order Branscum to reimburse
the estate of H.H. for those costs. LaMusga also asked for an order requiring Branscum
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to pay attorney fees and out of pocket expenses incurred by reason of Branscum’s failure
to comply with the orders of the court. An invoice for fees and costs was appended to
the motion.
{¶ 11} A hearing was conducted on August 4, 2020, at which time Branscum
admitted that she was in contempt for failing to comply with the order of November 22,
2019. The court then heard LaMusga’s testimony on the issue of fees and expenses.
LaMusga sought $8,600 in fees1 and $982.02 in costs. Following the hearing, the court
found Branscum in contempt and ordered her to reimburse the estate for the delinquent
taxes and certificate of judgment payments made by the estate. The court also awarded
the sum of $6,482.20 in attorney fees and expenses. The court’s decision did not
differentiate between the amount of fees and the amount of expenses awarded, and it did
not set forth any findings of fact or conclusions of law regarding the fees and expenses.
Neither party filed a motion requesting findings of fact or conclusions of law.
{¶ 12} Branscum appeals.
II. Analysis
{¶ 13} Branscum’s first and second assignments of error are as follows:
THE TRIAL COURT ERRED BY AWARDING ATTORNEY FEES
AND EXPENSES FOR MATTERS UNRELATED TO APPELLANT’S
ADMISSION OF CONTEMPT.
THE ATTORNEY FEES AND EXPENSES AWARDED WERE
1
The attorney fees itemized on the invoice totaled $9,000, but at the hearing, LaMusga
acknowledged a typographical error in her hourly rate for one of the entries. Adjusting
for this error, the amount sought for attorney fees was $8,600.
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UNREASONABLE, UNJUSITIFED [SIC], AND NOT SUPPORTED BY
EVIDENCE.
{¶ 14} In this appeal, Branscum does not challenge the court's finding of contempt
against her, but she contests the award of attorney fees and expenses. She notes that
the claim for fees and expenses related back to fees and expenses incurred as early as
May 30, 2019. Branscum thus asserts the “vast majority of attorney fees and expenses
awarded by the trial court were unrelated to the contempt to which [she] admitted.” She
further claims that LaMusga failed to present evidence to support a finding that the fees
were reasonable and necessary.
{¶ 15} A court may hold a party in contempt where that party fails to comply with a
lawful judgment or court order. R.C. 2705.02. In conjunction, a trial court has the
discretion to assess reasonable attorney fees as part of the costs against a defendant
found guilty of civil contempt. Planned Parenthood v. Project Jericho, 52 Ohio St.3d 56,
67, 556 N.E.2d 157 (1990). An appellate court will not reverse the trial court's
determination of reasonable attorney fees absent an abuse of discretion. Bittner v. Tri-
County Toyota, Inc., 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991). An abuse of
discretion occurs when the trial court’s attitude is unreasonable, arbitrary or
unconscionable. Miller v. Miller, 12th Dist. Butler No. CA2001-06-138, 2002-Ohio-3870,
¶ 8.
{¶ 16} “An award of attorney fees must represent reasonable compensation for
necessary legal services rendered, and the amount is a matter within the court's sound
discretion.” Dayton Women's Health Ctr., Inc. v. Enix, 86 Ohio App.3d 777, 780, 621
N.E.2d 1262 (2d Dist.1993). “Some of the factors to be considered in determining the
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amount of attorney fees to be awarded include: (1) the time and labor involved in
maintaining this litigation, (2) the novelty, complexity, and difficulty of the questions
involved, (3) the professional skill required to perform the necessary legal services, (4)
the experience, reputation, and ability of the attorneys, and (5) the miscellaneous
expenses of this litigation.” Id., quoting State ex rel. Montrie Nursing Home v. Creasy, 5
Ohio St.3d 124, 449 N.E.2d 763 (1983).
{¶ 17} We begin by noting that the domestic relations court did not, as asserted by
Branscum, award all of the fees requested on the invoice submitted with the motion to
show cause. Indeed, the invoice set forth fees in the amount of $8,600 and expenses in
the amount of $982.02 for a total reimbursement request of $9,582.02. As set forth
above, the court awarded the sum of $6,482.02, representing both fees and expenses,
without any differentiation between the two.
{¶ 18} The facts of this case demonstrate that Branscum has failed, since the date
of the divorce decree, to comply with the court’s orders regarding the sale of the real
estate. Indeed, the record demonstrates that she intentionally attempted to derail the
sale. A review of the invoice submitted by LaMusga leads us to conclude the trial court
did not abuse its discretion regarding the amount of fees and expenses awarded.2 The
trial court concluded, and we agree, that approximately $3,000 of the requested fees and
expenses were not related to the November 22, 2019 contempt finding. Moreover,
based upon LaMusga’s invoice and our review of the record, the domestic relations court
correctly determined the fees and expenses which related to actions required to institute,
2
By our calculation, the divorce court could have awarded slightly more in fees than it
did.
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prosecute, and enforce the November 22, 2019 contempt order.
{¶ 19} We next turn to Branscum’s claim that the evidence did not support a finding
that the fees and expenses were reasonable and necessary. We note LaMusga testified
that her usual customary fee was $200 per hour and that the fees and expenses were
accrued by reason of Branscum’s failure to aid in, and her interference with, the sale of
the property. While the court did not set forth the basis for its calculation, Branscum has
not directed this court's attention to anything in the record which demonstrates that the
trial court failed or refused to consider the already-noted factors that a court should
consider when making an attorney fee award. In the absence of evidence to the
contrary, we must presume the trial court considered them.
{¶ 20} Based upon the facts in this record, we conclude that the domestic relations
court did not abuse its discretion with regard to the award of attorney fees and attendant
expenses. Accordingly, Branscum’s assignments of error are overruled.
III. Conclusion
{¶ 21} Both of Branscum’s assignments of error being overruled, the judgment of
the trial court is affirmed.
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WELBAUM, J. and EPLEY, J., concur.
Copies sent to:
Michael T. Columbus
Harry G. Beyoglides, Jr.
Scott Edward Sullenberger
Hon. Brett A. Gilbert
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