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Branden v. Branden

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 7, 2017

CARI C. BRANDEN PLAINTIFF-APPELLANT
v.
JOHN T. BRANDEN DEFENDANT-APPELLEE

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

          ATTORNEYS FOR APPELLANT Joseph G. Stafford Nicole A. Cruz Stafford Law Co., L.P.A.

          ATTORNEY FOR APPELLEE Mark A. Ziccarelli Ziccarelli & Martello.

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

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE.

         {¶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. ...


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