Opinion
CASE NO. 2019-G-0237
11-09-2020
SUSAN A. ROSS, Plaintiff-Appellee, v. KENNETH A. ROSS, Defendant-Appellant.
Dennis J. Ibold, Ibold & O'Brien, 401 South Street, Chardon, OH 44024 (For Plaintiff-Appellee). Elaine Tassi, 34955 Chardon Road, Willoughby Hills, OH 44094 (For Defendant-Appellant).
OPINION
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2010 DK 001486. Judgment: Affirmed in part, reversed in part, and remanded. Dennis J. Ibold, Ibold & O'Brien, 401 South Street, Chardon, OH 44024 (For Plaintiff-Appellee). Elaine Tassi, 34955 Chardon Road, Willoughby Hills, OH 44094 (For Defendant-Appellant). MATT LYNCH, J.
{¶1} Appellant, Kenneth A. Ross, appeals from the judgment of the Geauga County Court of Common Pleas, making rulings enforcing and interpreting a clause in a separation agreement between Ross and his former wife, appellee, Susan A. Ross, nka Susan Knapp. For the following reasons, we affirm in part and reverse in part the decision of the lower court and remand for further proceedings consistent with this opinion.
{¶2} On December 20, 2010, Ross and Knapp filed a Petition for Dissolution of Marriage. The two were married in August 1992 and had three children who are now adults: Andrew, Katherine, and Christian.
{¶3} On February 10, 2011, a Decree of Dissolution was filed, with an attached Separation and Property Settlement Agreement and a Shared Parenting Plan. In pertinent part, the agreement provided:
The parties acknowledge that they have "529" accounts for the children at CollegeAdvantage and that these accounts are the current marital savings for the children's college education. Husband is the owner of said accounts and shall be the custodian of the accounts * * *.
Husband agrees to contribute 5% (Net) of any bonus to these accounts, with said contribution to be equally divided between the accounts.
The funds in these accounts shall be used to pay the tuition, room, board, books, and fees for each child to attend a post high school educational institution. Post high school education may be full-time or part-time and shall be defined herein as an accredited college, any university or community college granting a recognized degree, and any institution providing technical or vocational training.
If any funds remain in a child's account after the child has completed his or her post high school education, or declined to pursue said post high school education, the remaining funds shall be divided per capita between the accounts of the remaining children of the marriage who have not completed said post high school education. In the event that any funds are remaining in any of the three accounts and all children of the marriage have completed or declined to complete their post high school education, said funds shall be used to establish an account for the grandchildren who are blood descendants of both Husband and Wife, as permitted by law.
{¶4} On September 7, 2018, Knapp filed a Motion, in which she moved for the court to order Ross to produce the 529 account statements from 2011 through 2018, to contribute his 5% bonus to the accounts for those years, pay the children's educational expenses from that account, reimburse her for educational expenses, and pay her attorney's fees. She argued she did not have access to the account information to confirm what amounts had been deposited but had records from 2015 and 2016 which showed unequal distribution of funds to the three children's accounts.
{¶5} Ross filed a Motion to Dismiss and Motion for Attorney Fees on November 19, 2018, arguing the court lacked jurisdiction to address the issues in Knapp's motion because it was not a motion for contempt and did not seek to enforce a judgment but to modify it. The Motion to Dismiss was denied.
{¶6} A hearing was held on June 24, 2019. At the commencement of the hearing, the magistrate stated that Knapp's motion would be treated as a motion to enforce the separation agreement.
{¶7} Ross testified that he received work bonuses in 2011 through 2018. He testified, however, that he did not make contributions to Andrew's account in 2013-2018, to Christian's in 2013, 2017, and 2018, or to Katherine's in 2013 and 2016-2018. He believed Andrew had "declined to pursue" his education several times, noting that Andrew had a poor attendance record and academic performance and had pursued other interests including training to become a Navy SEAL. Ross testified that he contributed to all three of the children's accounts far in excess of the required 5% bonus amount.
{¶8} Knapp testified regarding various payments she made for her children's college expenses that were not paid from the 529 account. Regarding Andrew, she testified, and the records demonstrated, that he had attended college with varying levels of success from 2010 through 2019. During several terms in 2011-2013, he withdrew from courses or did not complete the semester. From the summer of 2015 through fall 2016, he completed 28 credits. In 2017 through spring 2018, he completed some credits but withdrew from other courses. In summer and fall of 2018 and spring of 2019, he took and received credit for one course each term. Knapp testified he had difficulty balancing his full time job with coursework but was working toward completing a nursing degree and was accepted into Lakewood College's nursing program. She testified she was aware Ross had made payments in certain years that were greater than 5% of his bonus.
{¶9} A Magistrate's Decision was issued on July 29, 2019. It found the clause relating to the 529 plan was ambiguous, that a reasonable interpretation of the clause was that Ross deposit 5% of his bonus "each year, not when Mr. Ross is inclined to contribute," and that the funds were to be distributed equally but Ross failed to do so. It found that although Ross believed the Agreement terminated in 2016 "there is no provision in the parties' Agreement to support Mr. Ross's assumption, nor did the parties execute a written agreement to modify the Agreement." The Decision found there was no ending date for the contributions and that he must contribute until the children "complete or decline their education." The magistrate found that Andrew "did not refuse to undertake, or engage in, his post high school education," and that he was "very persistent in returning to school, [that he] raised his GPA from 0.75 to 3.0 and was accepted into a nursing program." The magistrate found it unreasonable for Ross to contribute funds indefinitely and that he should contribute his bonus for another four years. The magistrate concluded Ross defaulted in the performance of his obligations under the Separation Agreement and that he was responsible for paying Knapp's attorney's fees in the amount of $4,580 as well as his own, and was required to deposit designated amounts into the children's 529 accounts within 60 days.
{¶10} Ross filed Objections to the Magistrate's Decision on October 4, 2019.
{¶11} In a November 25, 2019 Judgment, the court overruled the objections with the exception of the finding that Ross's 529 contributions would terminate in four years. The court concluded "that to impose a four year limit would indeed rewrite the parties['] own agreement, which did not impose any time limitation * * * other than when a child either 'completed' such post high school education or when a child 'declined' to pursue post-high school education." It determined Ross should continue to contribute 5% of his bonus unless "a child affirmatively declines such pursuit." The court stated that if Ross concluded a child had manifested a decision to decline further education, he "should seek an interpretation from the Court as to the 5% contribution, rather than unilaterally reaching such a conclusion, as [he] has previously done." On December 2, 2019, the court issued a Judgment Entry which ordered the payment of the attorney's fees and contributions to the children's accounts as well as the foregoing as to the timing of the contributions.
{¶12} Ross timely appeals and raises the following assignments of error:
{¶13} "[1.] The trial court did not have jurisdiction to modify the division of property set forth in a separation agreement incorporated into a decree of dissolution.
{¶14} "[2.] The trial court erred and abused its discretion in finding that section 2.7 of the separation agreement was ambiguous and proceeding to add language to the provision without allowing the parties to present evidence of the intent of the parties in entering into that agreement and considering the equities involved.
{¶15} "[3.] The trial court erred and abused its discretion in awarding Petitioner-Appellee attorney fees."
{¶16} In his first assignment of error, Ross argues that the trial court did not have jurisdiction to modify the property division in the parties' separation agreement and it cannot add terms to their agreement. He emphasizes that the separation agreement contained a provision stating "this Agreement shall not be altered or modified unless it be done in writing and signed by both parties."
{¶17} It has been held that courts lack jurisdiction to modify property division pursuant to a separation agreement in dissolution proceedings. Nash v. Nash, 11th Dist. Lake No. 93-L-184, 1994 WL 721849, *2 (Dec. 9, 1994); Bond v. Bond, 69 Ohio App.3d 225, 227, 590 N.E.2d 348 (9th Dist.1990); Sundstrom v. Sundstrom, 11th Dist. Ashtabula No. 2005-A-0013, 2006-Ohio-486, ¶ 24. However, a court retains jurisdiction to enforce the terms of separation agreements. Nash at *2; Dvorak v. Dvorak, 11th Dist. Portage No. 2006-P-0003, 2006-Ohio-6875, ¶ 7. "[W]here there is good faith confusion over the requirements of a dissolution decree, the court has the power to enforce its decree, to hear the matter, to clarify the confusion, and resolve the dispute." Nash at *2. "Whenever a clause in a separation agreement is deemed to be ambiguous, it is the responsibility of the trial court to interpret it." (Citation omitted.) Pilch v. Pilch, 11th Dist. Trumbull No. 2005-T-0135, 2006-Ohio-5829, ¶ 24. However, a trial court may not interpret an agreement that is unambiguous. Goulding v. Goulding, 11th Dist. Trumbull No. 2007-T-0011, 2007-Ohio-6927, ¶ 37.
{¶18} Here, to the extent that the court acted to enforce the parties' agreement, it had jurisdiction to do so. Ross contends, however, that the lower court did not act to enforce but to modify the property division.
{¶19} In general, the lower court interpreted the decree for the purpose of enforcing it rather than modifying it. Knapp argued, inter alia, that Ross was required to deposit funds in Andrew's account and Ross testified that he had declined to do so on several occasions because he believed Andrew had "declined to pursue" his education. Because there was a dispute over the terms of the agreement as they related to the 529 plan contributions it was necessary to interpret it to enforce any obligations for contribution. In interpreting the clause, it was determined there was no ending date for contributions, the 5% provisions obligated Ross to contribute on a yearly basis, and the facts did not demonstrate that Andrew declined to pursue his education. It was also found that further questions regarding when a child "declines" to pursue his education should be directed toward the court. These findings did not change the language of the agreement.
{¶20} Ross argues that the court added a term requiring the children or the court's consent to cease contributions but this ruling merely served to prohibit Ross from unilaterally determining the meaning of the separation agreement as he had previously done. In the absence of a termination date, which the parties failed to provide, or an unambiguous term defining when a child declines to pursue his education, the court is placed in the situation of having to clarify when the contributions should cease.
{¶21} Under Ross' interpretation of the law, if a provision in a separation agreement lacks clarity, the problem simply cannot be resolved and the parties are free to proceed as they choose, which Ross had done prior to Knapp filing a motion seeking the court to enforce the obligation that he place money into the 529 accounts. This is not a logical or reasonable interpretation of how the law should be applied.
{¶22} Ross also contends that the trial court altered the amount of the bonus he was required to contribute to the children's accounts. As to the bonus, the parties' agreement provided that Ross "agrees to contribute 5% (Net) of any bonus to these accounts." In its judgment in the present matter, the lower court found: "[Ross] shall contribute 5% of his annual bonus to the Plans of those children still pursuing post-high school education * * *". There is no question that the amount the parties agreed would be contributed was 5% of Ross' net bonus, as opposed to the gross which would require a significantly larger contribution. The court's ruling fails to state that the requirement was for the net bonus only and thus serves to modify the agreement and obligations of the parties. As such, we must reverse the court's ruling that Ross "shall contribute 5% of his annual bonus to the Plans of those children still pursuing post-high school education" on the limited basis discussed above and remand for the trial court to make a finding on the issue of contribution that is not inconsistent with, and does not constitute a modification of, the parties' agreement.
{¶23} Finally, in support of his jurisdiction argument, Ross cites Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460, and Ramsey v. Ramsey, 9th Dist. Summit No. 25810, 2012-Ohio-1715, neither of which are applicable here. As noted above, with the exception of the court's statement regarding the amount of the bonus to be contributed, it acted to enforce rather than modify the parties' agreement. In Walsh, the court modified the length of the term of the parties' marriage in order to meet a military pension requirement. This was not an interpretation but a change. The court recognized this, stating "there was nothing ambiguous about the six-year marriage term provided for in the Walshes' divorce decree." Id. at ¶ 24. Similarly, in Ramsey, the court found there was no jurisdiction for a post-decree modification of property which does not apply here for the reasons outlined above.
{¶24} The first assignment of error is with merit, in part, to the extent indicated above.
{¶25} In his second assignment of error, Ross raises various arguments relating to the court's determination that the separation agreement was ambiguous, its construal and enforcement of the pertinent clause, as well as procedural issues.
{¶26} This court has held that separation agreements incorporated into divorce decrees are subject to the rules of construction governing contracts. Meaney v. Meaney, 11th Dist. Lake No. 2013-L-072, 2015-Ohio-1992, ¶ 13. Whether a clause in a contract is ambiguous is an issue reviewed de novo. Id.; Salvato v. Salvato, 2013-Ohio-5268, 2 N.E.3d 974, ¶ 39 (11th Dist.). "[W]here a contract is ambiguous" and capable of multiple, reasonable conflicting interpretations, "we will not overturn the trial court's interpretation absent a showing of an abuse of discretion." (Citation omitted.) Salvato at ¶ 40; Meaney at ¶ 13 ("[t]he trial court has broad discretion to clarify ambiguities").
{¶27} Although much of Ross' argument relates to his contention that the lower court erred in finding the separation agreement ambiguous, we must first address the issue of the proper process for seeking to enforce the terms of a separation agreement. Ross disputes the manner in which these proceedings were initiated, with the court construing Knapp's motion requesting various forms of relief as a motion to enforce and failing to address it as a motion for contempt.
{¶28} The appropriate procedure for enforcing a separation agreement incorporated into a divorce, as Ross suggests, is contempt. The Ohio Supreme Court has held: "A property settlement provision contained in a separation agreement, which is subsequently incorporated into a divorce decree, or a decree of dissolution, is enforceable by contempt proceedings." Harris v. Harris, 58 Ohio St.2d 303, 390 N.E.2d 789 (1979), paragraph one of the syllabus. Citing its decision in Holloway v. Holloway, 130 Ohio St. 214, 198 N.E. 579 (1935), the Supreme Court of Ohio determined "'* * * [a] decree which incorporates an agreement is a decree of court nevertheless, and as soon as incorporated into the decree the separation agreement is superseded by the decree, and the obligations imposed are not those imposed by contract, but are those imposed by decree, and enforceable as such.'" Harris at 308, citing Holloway at 216.
{¶29} The Third District has similarly observed, "[a] separation agreement is a contract between two parties, and its validity is governed by contract law, but a separation agreement loses its contractual nature when it is incorporated into a divorce decree, and the means of enforcement thereafter is through a power of contempt." (Citations omitted.) Jones v. Jones, 179 Ohio App.3d 618, 2008-Ohio-6069, ¶ 25 (3d Dist.). "Contempt proceedings constitute the inherent means by which courts enforce their lawful orders." Hans v. Stedman, 10th Dist. Franklin No. 04AP-376 and 04AP-377, 2005-Ohio-4819, ¶ 15.
{¶30} The foregoing is significant because the degree of proof in contempt proceedings to enforce a domestic relations separation agreement differs from that in a proceeding to enforce a settlement agreement in an ordinary civil action. In the case of a motion to enforce a civil agreement, sufficient evidence to support a finding by a preponderance of the evidence is required if there is an evidentiary issue and de novo review is applied for questions of law. Thirion v. Neumann, 11th Dist. Ashtabula No. 2004-A-0032, 2005-Ohio-4486, ¶ 14; Savoy Hosp., L.L.C. v. 5839 Monroe St. Assocs., L.L.C., 6th Dist. Lucas No. L-14-1144, 2015-Ohio-4879, ¶ 26.
{¶31} The degree of proof in a contempt proceeding requires that the movant establish by clear and convincing evidence that the obligor is in contempt. Blazic v. Blazic, 1st Dist. Hamilton Nos. C-040414 & C-040440, 2005-Ohio-4417, ¶ 21. "Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). In contempt proceedings, an abuse of discretion standard of review is applied. Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988).
{¶32} In a case similar to the present one, the First District applied the foregoing principles. In Blazic, the parties' separation agreement provided that the father pay his son's college expenses until he obtained a bachelor's degree. The father failed to pay expenses at the son's private university after he struggled academically, stating that he would pay for the son to attend a less expensive college. Id. at ¶ 2-4. In an action for contempt, the trial court awarded some, but not all, expenses to the mother, limiting tuition to that which would have been paid at a state college, and did not find father in contempt. Id. at ¶ 10. The appellate court found this improper, since the plain language of the agreement did not limit father's payment to the cost of a state university, nor did it limit being "educated" to achieving good grades. Id. at ¶ 17-18. The court found that a contempt action was the proper means of seeking relief, the parties must follow the unambiguous terms of an agreement, the father could not refuse to pay based on an argument of ambiguity, and a finding of contempt and award of fees was appropriate. Id. at ¶ 19. It found clear and convincing evidence to support a contempt finding under these circumstances. Id.
{¶33} It can fairly be argued that such a conclusion applies in the present matter as well. The agreement provided that Ross was to contribute to the children's accounts unless they "declined" to pursue their education, but there was no evidence presented to support that any of the children affirmatively "declined" their education. They did not state that they would no longer be pursuing education, nor did they cease to continue taking at least some courses. There is no question that the evidence presented demonstrated Ross had not been making the payments as required. Considering the entirety of these circumstances, there was clear and convincing evidence to support a finding of contempt, and an accompanying order of payment of the bonus as ordered by the trial court, as well as attorney's fees as will be discussed in the third assignment of error. While the trial court did not state the standard it utilized, since the court had before it proper evidence to meet the standard discussed above, we must affirm its decision. See Sancho v. Sancho, 114 Ohio App.3d 636, 642, 683 N.E.2d 849 (3d Dist.1996). Thus, while Ross is correct that the court should have properly recognized the proceedings in this matter as contempt proceedings and evaluated the evidence under such a standard, it does not follow that reversal is warranted
{¶34} Here, although Ross does not claim the agreement was ambiguous, and actually asserts the contrary, any argument regarding confusion over the meaning of the agreement cannot justify a failure to follow the terms of the agreement. An obligor "has an affirmative duty to clarify the agreement's meaning and to continue with his obligation. Failure to do so constitutes a default on his part." Blazic at ¶ 22. Ross never sought such clarification.
{¶35} We also note that although this was not clearly indicated by Knapp or the court to be a contempt proceeding, contrary to Ross' assertion, there was no violation of his rights in being unable to defend against it in that manner. Since Ross does not face any jail time, he was not required to be provided with the opportunity to purge himself of such penalty for the contempt. See Tucker v. Tucker, 10 Ohio App.3d 251, 252, 461 N.E.2d 1337 (1983). Further, he had the opportunity to present argument and testimony as to why he did not owe the money requested and thus, the court's monetary order was not in violation of his rights.
{¶36} In addition to taking issue with the proper process to be followed by the lower court, Ross raises several arguments to support his contention that the court's enforcement of the terms of the agreement was incorrect, as it erred in finding the agreement was ambiguous and that it required him to continue payment to the children's accounts.
{¶37} Rather than finding the agreement unambiguous and Ross in violation because he followed an unreasonable interpretation of the agreement, the lower court based its decision on ambiguity in the contract and, thus, clarified the agreement. Regardless of whether the agreement was unambiguous or not, the result is the same: the orders that the lower court set forth are justified. Under either conclusion, Ross' argument that he abided by the agreement and thus could not be ordered to make the required payments would fail. The agreement itself, as well as evidence presented of the parties' intent in forming the agreement, simply does not provide that Ross can decide when a child declines education: the ordinary meaning of "declining to pursue" would not be an arbitrary decision by Ross that a certain number of credits be completed each year.
{¶38} Ross argues that the separation agreement unambiguously provided that he is the custodian of the accounts, thereby precluding the court's findings that he must continue to pay into the children's accounts and that the court did not evaluate the agreement in context. In other words, he was not in contempt because he followed the language of the agreement. Contrary to Ross' contention, his designation as the custodian of the 529 accounts does not indicate the clear intention of the parties that he would determine when the children had completed or declined to pursue their education. No such language is contained in the clause at issue. Even presuming that, as custodian, he would be permitted to make decisions about which expenses warranted distribution of funds from the accounts, it does not follow that the obligation to pay into the accounts, separately described in the agreement, should be at his own discretion. If he were permitted to make all decisions about the accounts, including when to contribute funds and when to cease contributions, the additional terms in the separation agreement would be meaningless.
{¶39} As to Ross' contention that Knapp admitted in filings that the separation agreement was unambiguous, Knapp made such statement in a limited fashion, arguing that the provisions were unambiguous "in that the funds shall be used to pay the tuition and other post-high school educational expenses of the children." There is no dispute that this was the purpose of the accounts. Nonetheless, when the issue of enforcement was presented to the court, the court was required to determine which provisions, if any, were ambiguous for the purposes of enforceability and this has no impact on our ruling.
{¶40} Ross also argues that the court improperly modified the agreement by requiring him to make payments into the 529 account yearly when it does not specify when the payments must be made. Under this interpretation, he could pay the yearly bonus payments whenever he chooses, be it the year they are earned or ten years later. It is logical that the payments would be made while the students are in college and if not made yearly, the funds would not be accessible to the children for their intended purpose. Further, while Ross also takes issue with the court determining a particular amount he should pay into the accounts, asserting this is a modification, the court simply determined the amount to be paid utilizing the 5% figure set forth in the agreement while considering the financial records submitted by Ross, although we again emphasize that the court must correct its misstatement regarding the net/gross amount upon remand. To the extent that Ross reiterates other arguments that the court did not clarify the agreement but acted to modify it, these arguments are rendered moot by our resolution of this issue in the first assignment of error.
{¶41} Ross next contends that in interpreting the agreement, the court failed to consider evidence of the parties' intent as well as the equities. When interpreting a separation agreement that is ambiguous, the court "is entitled to consider 'not only the intent of the parties but the equities involved.'" (Citation omitted.) Sundstrom, 2006-Ohio-486, at ¶ 25. Further, he argues that he was not permitted to give testimony as to this intent at the hearing, which prevented the court from fairly interpreting the agreement.
{¶42} To the extent that Ross argues the agreement was unambiguous, this issue would be moot. However, even presuming the agreement is correctly found to be ambiguous, the court did not err in the taking and evaluation of the evidence. While there was limited testimony going to the intent of both parties regarding the 529 account clause at the time they entered the separation agreement, the parties' actions demonstrate they had different beliefs. According to Ross, he believed that some degree of failing and withdrawing from courses constituted declining to pursue one's education while Knapp's testimony demonstrated she continued to support Andrew in his education and believed that, given his progress, he had not declined to pursue his education. There is no question that, pursuant to the terms of the agreement, both parents intended for the children pursuing education to be entitled to the properly funded 529 accounts with bonuses equally divided among the children but had different ideas about what constitutes the pursuit of education. Taking into account the intent and circumstances here, including the equities discussed below, we find no abuse of discretion in the court's interpretation and enforcement of the meaning of the agreement.
{¶43} As to Ross' argument that he was not permitted to testify as to the parties' intent, he was prohibited only from discussing conversations between himself and Knapp, through a sustained objection upon which there was no elaboration, and from discussing the agreement he would be the custodian on the ground it was already established. Beyond that, he was permitted to testify on multiple instances about his beliefs and thoughts in entering the agreement and on its meaning.
{¶44} Regarding consideration of the equities, which was also pertinent to the resolution of attorney's fees as will be addressed in the third assignment of error, it is evident the court was familiar with the circumstances of the parties and did take these into account. Ross himself asserted below that the amount he was required to contribute was small in comparison to his salary and bonus leading him to sometimes place additional funds into the accounts. Knapp testified as to assisting her children with college expenses although her salary was less than a fourth of Ross'. While Andrew's progress in college was more protracted than the other children, it is hard to say it is inequitable to require the funding of his college expenses when, as the magistrate recognized, he was "persistent in returning to school, raised his GPA from .75 to 3.0 and was accepted into a nursing program." It would be inequitable to allow Ross to make unilateral decisions about how much progress he believed was warranted to fund each child's account and thereby negate the parties' intent to fund the children's college equally. The fact that he chose to provide additional educational funds outside of the 5% bonus requirement when he deemed the child was deserving of such funds does not strengthen his position.
{¶45} Ross next argues that the court erred in finding he improperly withheld funds from Katherine's account, as he believes it was proper to withhold these funds when her academic performance declined "until such time as she began to take school seriously." It is unclear precisely the relevance of this argument, as the court found Ross did contribute to Katherine's accounts the required amount from 2011 to 2018 "even if it was not deposited in the correct year." Nonetheless, for the reasons outlined above, the agreement did not provide that Ross could unilaterally determine when a child was "taking school seriously." The "decline to pursue" provision certainly does not relate to how seriously a student takes an educational opportunity; if that were the intent of the parties it should have been included in the terms of the agreement.
{¶46} Finally, Ross argues that there is no basis to require him to fund the accounts of the children who have graduated from college. The court's order does not contain such a requirement. It orders payment of his bonus to the plans "of those children still pursuing post-high school educations," provided they do not affirmatively decline to pursue. The record indicates that, at the time of the hearing, Katherine and Christian were still pursuing bachelor's degrees and Andrew was pursuing his education. Requiring Ross to fund the accounts while the children were still pursuing their education was not an abuse of discretion.
{¶47} The second assignment of error is with merit, to the extent outlined above.
{¶48} In his third assignment of error, Ross argues the court erred in awarding attorney's fees.
{¶49} "An appellate court reviews an award of attorney fees under an abuse of discretion standard." Crandall v. Crandall, 11th Dist. Geauga No. 2019-G-0202, 2020-Ohio-625, ¶ 117.
{¶50} In the present matter, the magistrate found that "Section 6.4 of the Agreement provides a remedy if either party defaults in the performance of their obligations under the Agreement. The defaulting party is responsible for payment of all expenses, including reasonable attorney fees, in connection with enforcement proceedings." The magistrate further found Ross defaulted and that this resulted in Knapp incurring $4,580 in attorney's fees, based on the foregoing clause. Ross argues that it was improper to enforce this clause as a justification for awarding fees, citing Snyder v. Snyder, 27 Ohio App.3d 1, 499 N.E.2d 320 (8th Dist.1985), for the proposition that "[a] clause in a separation agreement purporting to stipulate the payment of attorney fees by the defaulting party in an action for breach of the agreement is not enforceable under Ohio law." Id. at paragraph two of the syllabus,
{¶51} As outlined above, while a separation agreement is subject to rules of construction utilized for a contract, when incorporated into a decree, obligations are enforceable under the decree and applicable laws. As this court has held, in instances where post-decree motions are filed, attorney's fees are addressed under R.C. 3105.73(B). Crandall at ¶ 117.
{¶52} Pursuant to R.C. 3105.73(B):
In any post-decree motion or proceeding that arises out of an action for * * * dissolution * * *, the court may award all or part of reasonable attorney's fees and litigation expenses to either party if the court finds the award equitable. In determining whether an award is equitable, the court may consider the parties' income, the conduct of the parties, and any other relevant factors the court deems appropriate, but it may not consider the parties' assets.
{¶53} Ross contends that an award of fees pursuant to R.C. 3105.73 is improper because the lower court made no finding that such an award was equitable under this statute. While the lower court did not specifically discuss R.C 3105.73 in its decision and the magistrate found that Section 6.4 of the separation agreement provided for recovery of attorney fees, it has been held that a court is not required to make a specific equitability finding, particularly where an award of attorney's fees is supported by other factual findings and the record. See Roubanes v. Roubanes, 10th Dist. Franklin No. 14AP-183, 2014-Ohio-5163, ¶ 11. We hold that, in general, the award of attorney's fees pursuant to R.C. 3105.73(B) was not an abuse of discretion and was supported by the record. There was evidence in the record regarding several relevant factors, including Ross' salary, his conduct, and other pertinent considerations. The evidence demonstrated that the proceedings were initiated because Ross had failed to make payments required under the divorce decree and separation agreement. The magistrate's decision concluded that Knapp incurred $4,580 in attorney fees to enforce the agreement and noted that Ross stipulated counsel's "hourly rate and fees are reasonable, usual, customary, and necessary."
{¶54} To the extent that Ross maintains an award of fees is not justified because he did not act improperly or default on the terms of the unambiguous separation agreement, we disagree. As the lower court found, Ross made unilateral decisions interpreting the agreement which were not supported by the terms of the agreement. As this court has held, and as discussed above, a party cannot make its own determination about whether the terms of an agreement are ambiguous or no longer apply. Failure to "clarify the agreement's meaning and to continue with [an] obligation" constitutes default and this justifies a finding that an award of fees was equitable. See Rohrbacher v. Rohrbacher, 83 Ohio App.3d 569, 577, 615 N.E.2d 338 (6th Dist.1992) ("[T]he obligor cannot decide that the terms of a separation agreement are ambiguous or inapplicable and simply refuse to fulfill the obligation. He must take some affirmative action either prior to or at the time his obligation arises."); Slotta v. Slotta, 11th Dist. Lake No. 13-081, 1989 WL 85682, *5 (July 28, 1989).
{¶55} Finally, Ross argues that the fee award should be reduced by at least $632.50 since that amount was incurred prior to the filing of the motion from which the request for attorney's fees arose, citing to Crandall, 2020-Ohio-625. In Crandall, this court held that fees awarded pursuant to R.C. 3105.73(B) must have been incurred after the filing of a motion for attorney's fees since that motion was the father's first notice attorney's fees were at issue. Id. at ¶ 124-126. It is "improper for a court to award fees incurred prior to the filing of a motion for fees." Id. at ¶ 124, citing Darden v. Darden, 8th Dist. Cuyahoga No. 75508, 2000 WL 640590, *7 (May 18, 2000), citing Seagraves v. Seagraves, 125 Ohio App.3d 98, 103, 707 N.E.2d 1165 (2d Dist.1997). Here, the trial court awarded all fees associated with the preparation, filing, and litigation of the motion that is the subject of this appeal. However, $632.50 of these fees arose from work performed prior to the filing of that motion wherein attorney's fees were requested, which is demonstrated by the billing records. Thus, the court's award of attorney's fees is reversed only as to the amount of $632.50 and the remaining award of fees is affirmed.
{¶56} The third assignment of error is with merit in part, to the extent addressed above.
{¶57} For the foregoing reasons, the judgment of the Geauga County Court of Common Pleas is affirmed in part, reversed in part, and remanded. Costs to be taxed against the parties equally. THOMAS R. WRIGHT, J., MARY JANE TRAPP, J., concur.