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Dawn Leigh Patterson v. Clifford Patterson

November 4, 2011

DAWN LEIGH PATTERSON, PLAINTIFF-APPELLEE,
v.
CLIFFORD PATTERSON, DEFENDANT-APPELLANT.



Civil Appeal From: Hamilton County Court of Domestic Relations TRIAL NO. DR-0800611

The opinion of the court was delivered by: Sylvia S. Hendon, Presiding Judge.

Cite as Patterson v. Patterson,

OPINION.

Judgment Appealed From Is: Affirmed

Please note: This case has been removed from the accelerated calendar.

{¶1} This is an appeal from the trial court's entry awarding attorney fees to plaintiff-appellee Dawn Patterson ("Dawn") from her former spouse, defendantappellant Clifford Patterson ("Clifford)." Because we hold that the trial court was permitted to award fees under R.C. 3105.73(B) in the absence of a specific request from a party, and because no abuse of discretion occurred in the award of fees, we affirm the trial court's judgment.

Factual Background

{¶2} The marriage between Dawn and Clifford was terminated by a decree of divorce in June of 2009. In the divorce decree, Clifford was ordered to pay both child support and spousal support to Dawn. In March of 2010, Clifford filed a motion to modify child and spousal support as a result of a change in income. In response to Clifford's motion, Dawn filed a verified motion for contempt and to execute an IRA transfer. In this motion, Dawn made a request for attorney fees. Dawn additionally filed a motion to compel with respect to Clifford's discovery responses. In the motion to compel, she requested an award of attorney fees pursuant to Civ.R. 37(A)(4).

{¶3} A hearing on these various motions was held before a magistrate. Prior to the commencement of the hearing, Dawn's counsel withdrew the motion to compel, but specifically reserved the issue of attorney fees and costs. During the hearing, Dawn introduced a fee bill from her attorney outlining the fees that had been incurred, as well as an affidavit from her counsel in support of the fee request.

{¶4} The magistrate issued a decision granting Clifford's motion to modify child and spousal support. But in his entry, the magistrate made no finding of contempt and did not rule on Dawn's request for attorney fees. Dawn filed objections to the magistrate's decision on the grounds that the magistrate had failed to rule on her motion for attorney fees. The trial court sustained Dawn's objections. It remanded the case for the magistrate to "determine whether to award attorney fees as requested by plaintiff."

{¶5} Upon remand, the magistrate did not conduct a new evidentiary hearing, as he had been instructed by the trial court to make a fee determination based on the evidence presented at the initial hearing. The magistrate issued a decision awarding Dawn $2,596.68 in attorney fees pursuant to R.C. 3105.73(B). In his decision, the magistrate stated that he was not awarding fees under Civ.R. 37 because Dawn had not proceeded with her motion to compel.

{¶6} Both Dawn and Clifford filed objections to the magistrate's decision. The trial court overruled both parties' objections and it adopted the magistrate's decision awarding attorney fees.

Award of Fees

{ΒΆ7} In his sole assignment of error, Clifford argues that the trial court erred in awarding attorney fees to Dawn. We review the trial court's decision to award attorney fees for an abuse of discretion. Lemarr v. ...


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