Kovacic v. Kovacic

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[Cite as Kovacic v. Kovacic, 2010-Ohio-667.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 93097 NANCY KOVACIC PLAINTIFF-APPELLANT vs. THOMAS KOVACIC DEFENDANT-APPELLEE JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-239974 BEFORE: RELEASED: Cooney, J., McMonagle, P.J., and Stewart, J. February 25, 2010 JOURNALIZED: ATTORNEY FOR APPELLANT 2 Kenneth D. Myers 6100 Oak Tree Blvd., Suite 200 Cleveland, Ohio 44131 FOR APPELLEE Thomas Kovacic, pro se 33313 Lakeshore Blvd. Eastlake, Ohio 44095 GUARDIAN AD LITEM Kevin H. Cronin The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103 N.B. This entry is an announcement of the court s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1). 3 COLLEEN CONWAY COONEY, J.: {¶ 1} Plaintiff-appellant, Nancy Kovacic ( Nancy ), appeals the trial court s judgment ordering her to pay half of the guardian ad litem ( GAL ) fees. Finding no merit to the appeal, we affirm. {¶ 2} Nancy and defendant-appellee, Thomas Kovacic ( Thomas ), were divorced in 1999. Since then, Nancy and Thomas have filed numerous post-decree motions. In March 2009, the trial court issued a judgment entry after trial on Thomas s motion to reallocate parental rights and the GAL s motions for fees. As it relates to this appeal, the court granted the GAL s motions for fees, finding that the fees were reasonable, appropriate, and necessary. The court then ordered that Nancy and Thomas each pay $6,194 (half of the GAL s total fees). {¶ 3} It is from this order that Nancy appeals, raising one assignment of error, in which she argues that the trial court erred in equally allocating the guardian ad litem fees between her and Thomas. {¶ 4} Generally, appellate courts review the trial court s ruling relative to an award of GAL fees under an abuse of discretion standard of review. Davis v. Davis (1988), 55 Ohio App.3d 196, 200, 563 N.E.2d 320, citing Civ.R. 75(B)(2) and Bishop v. Bishop (May 2, 1987), Cuyahoga App. No. 51731. 1 1 Civ.R. 75(B)(2) provides in pertinent part that: [w]hen it is essential to protect 4 See, also, In Re Kovacic, Lake App. No. 2008-L-101, 2008-Ohio-6882, ¶15. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. {¶ 5} Nancy does not challenge the reasonableness of the GAL s fees. Rather, she relies on Davis, as well as Jarvis v. Witter, Cuyahoga App. No. 84128, 2004-Ohio-6628, overruled on other grounds, and Marsala v. Marsala (July 6, 1995), Cuyahoga App. No. 67301, to support her argument that Thomas should pay the fees because he caused the need for the GAL to be appointed and he was unsuccessful in the litigation. She claims that there would have been no need for a GAL if Thomas had not filed his motion for a change of custody of their daughter. Nancy further claims that most of her involvement in litigating their divorce involved her defending against Thomas s motions, attempting to get him to pay child support, or requesting that he produce discovery on motions that he filed. the interests of a child, the court may * * * appoint a guardian ad litem * * * for the child and tax the costs * * *. 5 {¶ 6} In Davis, this court held that the trial court has discretion over the amount of GAL fees, as well as the allocation to either or both of the parties. Id. at 200. We noted that fees may be allocated based on the parties litigation success and economic status. Id. (Emphasis added.) In Jarvis, this court also recognized that it may be proper to allocate the GAL s fees based on which party caused the work of the GAL. Id. at ¶100, citing Marsala. {¶ 7} In the instant case, a review of the record reveals that the trial court appointed the current GAL in January 2007. At no time subsequent to his appointment did Nancy or Thomas move to terminate the GAL s services. In its March 2009 judgment entry, the trial court stated that, [g]iven the history of unending litigiousness involving [the] children on a daily basis and its effect upon the health, safety, and welfare of [their daughter], it is essential for the court to finalize the * * * motions for guardian ad litem fees. {¶ 8} The trial court found that the award of guardian ad litem fees is reasonable, appropriate, and necessary. Both parties have demonstrated the financial ability to afford litigation that benefitted the individual financial interest of each, have litigated in numerous courts, including Federal Court and two Courts of Appeals. Both parties have filed numerous post decree motions. While each may claim a lack of significant income, that has not 6 diminished the parties capacities to litigate. The court then ordered Nancy and Thomas to each pay $6,194 for the GAL s fees. {¶ 9} Under these circumstances, there is nothing to indicate that the trial court s decision to equally allocate the GAL s fees between Nancy and Thomas was unreasonable, arbitrary, or unconscionable. Therefore, we find no abuse of discretion. {¶ 10} Accordingly, the sole assignment of error is overruled. Judgment is affirmed. It is ordered that appellee recover of 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 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. _____________________________________________ COLLEEN CONWAY COONEY, JUDGE CHRISTINE T. McMONAGLE, P.J., and MELODY J. STEWART, J., CONCUR

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