Summary
In Rand v. Rand (1985), 18 Ohio St.3d 356, 18 OBR 415, 481 N.E.2d 609, the Ohio Supreme Court made the abuse-of-discretion standard applicable to awards of attorney fees in domestic-relations proceedings.
Summary of this case from Bardnell v. BardnellOpinion
No. 84-1379
Decided August 7, 1985.
Domestic relations — Child support — Agreement to provide for religious education enforceable — Not violative of Section 7, Article I, Ohio Constitution — Attorney fees in post-decree motion within court's discretion.
O.Jur 3d Family Law §§ 917, 1027.
Judicial enforcement of a separation agreement, incorporated into a divorce decree, which requires a noncustodial parent to pay tuition for his child's religious education, does not offend Section 7, Article I (the religious freedom provision) of the Ohio Constitution.
APPEAL from the Court of Appeals for Cuyahoga County.
Sumner and Roberta H. Rand, appellant and appellee respectively, were married in 1962 and divorced in 1969. Custody of the couple's one child, Jonathon, who was born in 1962, was awarded to appellee.
Appellee and appellant entered into a separation agreement which subsequently was incorporated into the divorce decree. The separation agreement provides in relevant part:
"1. The Husband covenants and agrees as follows:
"* * *
"(c) With respect to the minor child of the parties, and subject to further order of the Court, to pay to the Wife for the support and maintenance of such child the sum of $300.00 a month commencing July 1, 1969 and continuing on the first day of each successive month thereafter; provided, however, the Husband shall pay a pro-rata share of said $300.00 per month during such periods as the minor child is visiting with the Husband during vacations from school, except that the Husband shall in no event pay less than $100.00 per month as and for the support of said child during such periods; such payments to continue until such time as such child's twenty-first birthday, emancipation, marriage or death of the Husband or Wife, whichever shall first occur.
"* * *
"(f) As and for support of the minor child of the parties hereunder, and in lieu of Husband's obligation to pay for support pursuant to Section (d) above, to provide and pay for directly, to the appropriate parties, and not as reimbursement to the Wife, the cost of a four year, undergraduate college education for the minor child of the parties, provided however, such payments shall be limited to charges for tuition, books, registration fees, and for room and board; and during such regulation vacation periods during the summer (except when such child is with the Husband), Husband shall pay for the support of the minor child such sums as are provided for in Section 1(c) above, but during such periods as said minor child is attending college, the Husband shall pay to the Wife the sum of One Hundred Dollars ($100.00) per month as and for the support of said child during such periods.
"* * *
"3. The parties covenant and agree as follows:
"* * *
"(j) To provide the minor child of the parties with a proper and adequate religious education and the Husband agrees to reimburse the Wife for up to $250.00 annually of the direct expenses incurred as the result of tuition, books, and registration fees incurred in connection with such religious education.
"* * *
"4. This Agreement may be offered to a court for its approval in any action for divorce instituted [ sic] by either party, and shall be incorporated by reference or otherwise in any decree that may be granted in any such action, it being agreed that any such decree will provide that the Husband is to pay the court costs incurred in said proceeding. Notwithstanding any such incorporation however, this Agreement shall not be merged into such decree, but shall survive the same and shall be binding and conclusive upon the parties for all time, except as may be modified in writing by them. The failure of either party to insist upon strict performance of any provision of this Agreement shall not be deemed a waiver of the right to insist upon strict performance of such provision, or any other provision, at any further time."
On March 12, 1980, appellee filed a motion to show cause in which she claimed child support arrearages and attorney fees. Appellant responded by filing a counter-motion to modify child support. A hearing was held before a referee in July 1981.
In the course of the hearing appellee testified that appellant failed to pay the following amounts of child support: $400 in 1970, $1,000 in 1971, $1,400 in 1972, $1,600 in 1973, $1,900 in 1974, $1,700 in 1975, $1,900 in each of the years 1976 through 1978, $1,700 in 1979, $2,350 in 1980, and $1,300 through July 1981. Appellant responded to these allegations by deposition and at trial. He testified that he could not afford to make the payments as set forth in the separation agreement. In addition, he averred that appellee, by acceptance of reduced payments, no longer expected full payments to be made.
Appellee testified that some $2,250 in religious education expenses had been incurred, but she never requested such payments because she felt if appellant would not make support payments he would also be unable to make any other types of payments. With respect to Jonathon's college expenses as a student at the University of Pennsylvania, appellee testified that no contribution had been received from appellant.
Subsequently the referee found appellant in arrears in child support for the sum of $19,050, delinquent in religious school education payments of $2,250, and owing an additional $8,000 for appellee's attorney fees. The trial court adopted the referee's recommendations and ordered that appellant be required to pay for his son's tuition, books, registration fees, and room and board for four years of college at the University of Pennsylvania. On appeal, a unanimous court upheld the trial court's decision.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Schwarzwald, Robiner, Wolf Rock Co., L.P.A, Marshall J. Wolf and Deborah R. Akers, for appellee.
Stewart DeChant Co., L.P.A., and Lawrence E. Stewart, for appellant.
Appellant presents four propositions of law. For the reasons set forth herein, we find these propositions lack merit and therefore affirm the court below.
Appellant's first proposition of law states that "Article I, § 7 of the Ohio Constitution prohibits a domestic relations court from ordering a support-paying spouse to make charitable contributions to a place of worship for the purpose of indoctrinating a minor child in the religious beliefs espoused by that place of worship." A similar constitutional argument was raised, thoroughly analyzed, and rejected in In re Landis (1982), 5 Ohio App.3d 22. We adopt the Landis court's position, as did the appellate court below, and quote the following as being directly on point to the cause sub judice:
"* * * It is quite difficult to understand how judicial enforcement of a contract for the payment of money can constitute violation of the Establishment Clause of the First Amendment, i.e., constitute passing a law respecting an establishment of religion. If this were the case, a court could not enforce promises, supported by consideration, to pay money to churches and other religious organizations * * *." Id. at 28.
Similarly, appellant herein agreed, of his own free will, to reimburse his wife for his son's religious education. Such a consensual agreement ordinarily does not fall within the ambit of the Establishment Clause of the federal or state Constitution. The language in Section 7, Article I of the Ohio Constitution, that "[n]o person shall be compelled to * * * support any place of worship * * * against his consent," in part dispels appellant's argument. Moreover, appellant's averred rights would be counterbalanced by appellee's right to freely exercise her religion and her right, as the custodial parent, to formulate and implement the child's religious education. See In re Landis, supra, at 24-27.
We held in Robrock v. Robrock (1958), 167 Ohio St. 479 [5 O.O.2d 165], paragraph four of the syllabus, that "[i]n a divorce case, the court, to give effect to a separation agreement, has the power to incorporate it in the divorce decree or base the decree on its provisions, even though the court, in the absence of an agreement of the parties, would not have the power to make the resultant decree." Mutually agreed-upon provisions, in the context of a separation agreement incorporated into a divorce decree, although not originally imposed by a court, are ordinarily enforceable by a court. Accordingly, we reject appellant's first proposition of law and hold that judicial enforcement of a separation agreement, incorporated into a divorce decree, which requires a noncustodial parent to pay tuition for his child's religious education, does not offend Section 7, Article I (the religious freedom provision) of the Ohio Constitution.
Appellant's second proposition of law contests the propriety of awarding attorney fees in a post-divorce decree motion without a showing of necessity. A showing of necessity, however, is not a prerequisite to awarding attorney fees. It is well-established that an award of attorney fees is within the sound discretion of the trial court. Blum v. Blum (1967), 9 Ohio St.2d 92 [38 O.O.2d 224], syllabus; Wolf v. Friedman (1969), 20 Ohio St.2d 49 [49 O.O.2d 306]; Cohen v. Cohen (1983), 8 Ohio App.3d 109, 111. This trial court's discretion will not be overruled absent an attitude that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
In the instant case, a review of the record shows testimony to support the amount of fees awarded. Accordingly, we cannot say that the trial court abused its discretion in awarding attorney fees.
Appellant's third proposition of law asserts that the "referee's report * * * failed to include a statement of facts relevant to the issues of the defense of laches, waiver by Appellee of her rights and estoppel of Appellee to assert that additional support was owed to her." (Emphasis sic.) Appellant cannot, however, object that there was insufficient evidence to support the referee's determination as adopted by the trial court since the trial court had sufficient evidence to make its determination. This evidence was based upon, inter alia, the express language of paragraph four of the separation agreement which specifically excluded waiver of strict performance as a defense and the testimony of appellee's present husband, Edward B. Goorno, who stated that he had informed appellant that no waiver had been effected. More importantly, it was incumbent upon appellant to provide the necessary evidence if, arguendo, such evidence was indeed lacking. Zacek v. Zacek (1983), 11 Ohio App.3d 91. See, also, Cheek v. Cheek (1982), 2 Ohio App.3d 86 (generally, each party must bear the responsibility for bringing forth evidence as to his or her need). Similarly, appellant's other defenses involving laches and estoppel are equally unpersuasive. See Kinney v. Mathias (1984), 10 Ohio St.3d 72.
Appellant's final proposition of law avers that because the support agreement stipulated that college costs were to be paid to the appropriate parties, and not as reimbursement to the wife, appellee cannot now seek reimbursement. This desire for strict construction of the separation agreement is ironic in view of appellant's previous argument that this court ignore the express terms of the separation agreement with respect to the waiver issue. Regardless, as the court of appeals noted, it was because of appellant's refusal to provide for his son's college education that appellee was forced to pay the university. If appellant had performed his obligation as the separation agreement expressly stipulated, there would now be no need for reimbursement. Accordingly, we once again are unpersuaded by appellant's incongruous, if not imaginative, argument.
For the reasons set forth herein we affirm the judgment of the court of appeals.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.
CELEBREZZE, C.J., concurs separately.
I am in accord with the majority. I write separately, however, to emphasize that the decree was valid irrespective of the parties' agreement. This is so because judicial enforcement of a divorce decree requiring a noncustodial parent to pay support for a child's religious education neither violates the Establishment or Free Exercise Clause of the First Amendment to the United States Constitution, nor does it contravene the comparable provisions of Section 7, Article I of the Ohio Constitution. In re Landis (1982), 5 Ohio App.3d 22.
It is settled that the custodial parent of a minor child has the choice of religiously educating the child. Hackett v. Hackett (C.P. 1957), 77 Ohio Law Abs. 98 [4 O.O.2d 245], affirmed (1958), 78 Ohio Law Abs. 45 (custodial parent does not have to raise the child as a Catholic as provided by an agreement embodied in the custody decree); O'Neill v. O'Neill (1965), 45 Misc.2d 1, 255 N.Y. Supp. 2d 776 (religious training of children per agreement will not be enforced against the custodial parent).
The court in Majnaric v. Majnaric (1975), 46 Ohio App.2d 157 [75 O.O.2d 250], reasoned at 162-163:
"The defendant, thus, has no standing to raise that constitutional issue, because the constitutional protection is afforded to the person having personal care and control of the children. It is obvious that if an unwilling parent is forced, by court order, to raise a child in a religion which she disbelieves, the child will suffer. The welfare of the children is in the hands of the plaintiff, and, accordingly, she should be afforded the right to determine which school the children should attend."
In my opinion the clause at issue does not amount to a forced religious donation in violation of the Establishment Clause; rather, it is an acceptable form of financial child support designed to partially reimburse the custodial parent for expenses incurred in rearing the child. Likewise, the provision does not require appellant to practice any religion and does not affect his free exercise rights.
As the court said in In re Landis, supra, at 28:
"Appellant's obligation is to pay money for the support of his children, including tuition for their attendance at a private school if that be reasonable and consistent with the standard of living the children would have enjoyed had the marriage continued. From the separation agreement, the trial court is entitled to assume that this is the case. Defendant has a contractual obligation to pay the tuition. Even assuming that he may prefer that his children attend a different private school and is willing to pay the tuition at such different school, the choice of schools is that of the custodial parent, appellee, with the burden of payment of the tuition having been assumed by appellant by contract. * * *"