Am. H. B. No. 36 As Passed by the House

Representatives Willamowski, Core, Latta, Book, Harwood, Schlichter, Seitz, Chandler, Cirelli, C. Evans, Flowers, Hagan, Hughes, Otterman, Reidelbach, Schmidt, J. Stewart

A BILL

To amend section 3105.18 and to enact section 3105.73 1
of the Revised Code relative to the award of 2
attorney's fees and litigation expenses in certain 3
domestic relations cases. 4

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That section 3105.18 be amended and section 5
3105.73 of the Revised Code be enacted to read as follows: 6

       Sec. 3105.18. (A) As used in this section, "spousal support" 7
means any payment or payments to be made to a spouse or former 8
spouse, or to a third party for the benefit of a spouse or a 9
former spouse, that is both for sustenance and for support of the 10
spouse or former spouse. "Spousal support" does not include any 11
payment made to a spouse or former spouse, or to a third party for 12
the benefit of a spouse or former spouse, that is made as part of 13
a division or distribution of property or a distributive award 14
under section 3105.171 of the Revised Code. 15

       (B) In divorce and legal separation proceedings, upon the 16
request of either party and after the court determines the 17
division or disbursement of property under section 3105.171 of the 18
Revised Code, the court of common pleas may award reasonable 19
spousal support to either party. During the pendency of any 20
divorce, or legal separation proceeding, the court may award 21
reasonable temporary spousal support to either party. 22

       An award of spousal support may be allowed in real or 23
personal property, or both, or by decreeing a sum of money, 24
payable either in gross or by installments, from future income or 25
otherwise, as the court considers equitable. 26

       Any award of spousal support made under this section shall 27
terminate upon the death of either party, unless the order 28
containing the award expressly provides otherwise. 29

       (C)(1) In determining whether spousal support is appropriate 30
and reasonable, and in determining the nature, amount, and terms 31
of payment, and duration of spousal support, which is payable 32
either in gross or in installments, the court shall consider all 33
of the following factors: 34

       (a) The income of the parties, from all sources, including, 35
but not limited to, income derived from property divided, 36
disbursed, or distributed under section 3105.171 of the Revised 37
Code; 38

       (b) The relative earning abilities of the parties; 39

       (c) The ages and the physical, mental, and emotional 40
conditions of the parties; 41

       (d) The retirement benefits of the parties; 42

       (e) The duration of the marriage; 43

       (f) The extent to which it would be inappropriate for a 44
party, because that party will be custodian of a minor child of 45
the marriage, to seek employment outside the home; 46

       (g) The standard of living of the parties established during 47
the marriage; 48

       (h) The relative extent of education of the parties; 49

       (i) The relative assets and liabilities of the parties, 50
including but not limited to any court-ordered payments by the 51
parties; 52

       (j) The contribution of each party to the education, 53
training, or earning ability of the other party, including, but 54
not limited to, any party's contribution to the acquisition of a 55
professional degree of the other party; 56

       (k) The time and expense necessary for the spouse who is 57
seeking spousal support to acquire education, training, or job 58
experience so that the spouse will be qualified to obtain 59
appropriate employment, provided the education, training, or job 60
experience, and employment is, in fact, sought; 61

       (l) The tax consequences, for each party, of an award of 62
spousal support; 63

       (m) The lost income production capacity of either party that 64
resulted from that party's marital responsibilities; 65

       (n) Any other factor that the court expressly finds to be 66
relevant and equitable. 67

       (2) In determining whether spousal support is reasonable and 68
in determining the amount and terms of payment of spousal support, 69
each party shall be considered to have contributed equally to the 70
production of marital income. 71

       (D) In an action brought solely for an order for legal 72
separation under section 3105.17 of the Revised Code, any 73
continuing order for periodic payments of money entered pursuant 74
to this section is subject to further order of the court upon 75
changed circumstances of either party. 76

       (E) If a continuing order for periodic payments of money as 77
alimony is entered in a divorce or dissolution of marriage action 78
that is determined on or after May 2, 1986, and before January 1, 79
1991, or if a continuing order for periodic payments of money as 80
spousal support is entered in a divorce or dissolution of marriage 81
action that is determined on or after January 1, 1991, the court 82
that enters the decree of divorce or dissolution of marriage does 83
not have jurisdiction to modify the amount or terms of the alimony 84
or spousal support unless the court determines that the 85
circumstances of either party have changed and unless one of the 86
following applies: 87

       (1) In the case of a divorce, the decree or a separation 88
agreement of the parties to the divorce that is incorporated into 89
the decree contains a provision specifically authorizing the court 90
to modify the amount or terms of alimony or spousal support. 91

       (2) In the case of a dissolution of marriage, the separation 92
agreement that is approved by the court and incorporated into the 93
decree contains a provision specifically authorizing the court to 94
modify the amount or terms of alimony or spousal support. 95

       (F) For purposes of divisions (D) and (E) of this section, a 96
change in the circumstances of a party includes, but is not 97
limited to, any increase or involuntary decrease in the party's 98
wages, salary, bonuses, living expenses, or medical expenses. 99

       (G) If any person required to pay alimony under an order made 100
or modified by a court on or after December 1, 1986, and before 101
January 1, 1991, or any person required to pay spousal support 102
under an order made or modified by a court on or after January 1, 103
1991, is found in contempt of court for failure to make alimony or 104
spousal support payments under the order, the court that makes the 105
finding, in addition to any other penalty or remedy imposed, shall 106
assess all court costs arising out of the contempt proceeding 107
against the person and shall require the person to pay any 108
reasonable attorney's fees of any adverse party, as determined by 109
the court, that arose in relation to the act of contempt. 110

       ~~(H) In divorce or legal separation proceedings, the court may~~ 111
~~award reasonable attorney's fees to either party at any stage of~~ 112
~~the proceedings, including, but not limited to, any appeal, any~~ 113
~~proceeding arising from a motion to modify a prior order or~~ 114
~~decree, and any proceeding to enforce a prior order or decree, if~~ 115
~~it determines that the other party has the ability to pay the~~ 116
~~attorney's fees that the court awards. When the court determines~~ 117
~~whether to award reasonable attorney's fees to any party pursuant~~ 118
~~to this division, it shall determine whether either party will be~~ 119
~~prevented from fully litigating that party's rights and adequately~~ 120
~~protecting that party's interests if it does not award reasonable~~ 121
~~attorney's fees.~~ 122

       Sec. 3105.73. (A) In an action for divorce, legal separation, 123
or annulment of marriage or in any post-decree action or 124
proceeding arising from a divorce, legal separation, annulment, or 125
dissolution of marriage, a trial court may award reasonable 126
attorney's fees and litigation expenses to either party if the 127
court finds the award appropriate under the totality of the 128
circumstances involved in the action or proceeding. In determining 129
whether an award is appropriate under the totality of the 130
circumstances, the court shall consider the moving party's need 131
versus each party's ability to pay. The award may be for 132
attorney's fees and litigation expenses that have been incurred or 133
are reasonably anticipated. The trial court may make the award at 134
any stage of the proceedings, including, but not limited to, 135
proceedings while the action is pending in the trial court, 136
post-decree proceedings, or appellate proceedings. 137

        (B) The court may specify whether the award of attorney's 138
fees and litigation expenses under this section is payable in 139
gross or by installments. The court may make an award of 140
attorney's fees and litigation expenses under this section in 141
addition to making an award of attorney's fees and litigation 142
expenses under any other provision of the Revised Code or of the 143
Rules of Civil Procedure. 144

       (C) Nothing in this section prevents an award of attorney's 145
fees and litigation expenses from being designated as spousal 146
support, as defined in section 3105.18 of the Revised Code. 147

       Section 2. That existing section 3105.18 of the Revised Code 149
is hereby repealed. 150

       Section 3. Section 3105.18 of the Revised Code, as amended by 151
this act, and section 3105.73 of the Revised Code, as enacted by 152
this act, apply to any action for divorce, legal separation, or 153
annulment of marriage or any post-decree action or proceeding 154
arising from a divorce, legal separation, annulment, or 155
dissolution of marriage if any of the following apply: 156

       (A) The action or proceeding is brought, or a notice of 157
appeal in the action or proceeding is filed, on or after the 158
effective date of this act. 159

       (B) The action or proceeding is brought, or a notice of 160
appeal in the action or proceeding is filed, prior to the 161
effective date of this act, and the action or proceeding is 162
pending in a trial or appellate court on the effective date of 163
this act. 164

       (C) Any proceeding arising from a motion to modify a prior 165
order or decree in the action or proceeding is pending in a trial 166
or appellate court on the effective date of this act. 167

Section 1. That section 3105.18 be amended and section	5
3105.73 of the Revised Code be enacted to read as follows:	6

Sec. 3105.18. (A) As used in this section, "spousal support"	7
means any payment or payments to be made to a spouse or former	8
spouse, or to a third party for the benefit of a spouse or a	9
former spouse, that is both for sustenance and for support of the	10
spouse or former spouse. "Spousal support" does not include any	11
payment made to a spouse or former spouse, or to a third party for	12
the benefit of a spouse or former spouse, that is made as part of	13
a division or distribution of property or a distributive award	14
under section 3105.171 of the Revised Code.	15

(B) In divorce and legal separation proceedings, upon the	16
request of either party and after the court determines the	17
division or disbursement of property under section 3105.171 of the	18
Revised Code, the court of common pleas may award reasonable	19
spousal support to either party. During the pendency of any	20
divorce, or legal separation proceeding, the court may award	21
reasonable temporary spousal support to either party.	22

An award of spousal support may be allowed in real or	23
personal property, or both, or by decreeing a sum of money,	24
payable either in gross or by installments, from future income or	25
otherwise, as the court considers equitable.	26

Any award of spousal support made under this section shall	27
terminate upon the death of either party, unless the order	28
containing the award expressly provides otherwise.	29

(C)(1) In determining whether spousal support is appropriate	30
and reasonable, and in determining the nature, amount, and terms	31
of payment, and duration of spousal support, which is payable	32
either in gross or in installments, the court shall consider all	33
of the following factors:	34

(a) The income of the parties, from all sources, including,	35
but not limited to, income derived from property divided,	36
disbursed, or distributed under section 3105.171 of the Revised	37
Code;	38

(c) The ages and the physical, mental, and emotional	40
conditions of the parties;	41

(f) The extent to which it would be inappropriate for a	44
party, because that party will be custodian of a minor child of	45
the marriage, to seek employment outside the home;	46

(g) The standard of living of the parties established during	47
the marriage;	48

(i) The relative assets and liabilities of the parties,	50
including but not limited to any court-ordered payments by the	51
parties;	52

(j) The contribution of each party to the education,	53
training, or earning ability of the other party, including, but	54
not limited to, any party's contribution to the acquisition of a	55
professional degree of the other party;	56

(k) The time and expense necessary for the spouse who is	57
seeking spousal support to acquire education, training, or job	58
experience so that the spouse will be qualified to obtain	59
appropriate employment, provided the education, training, or job	60
experience, and employment is, in fact, sought;	61

(l) The tax consequences, for each party, of an award of	62
spousal support;	63

(m) The lost income production capacity of either party that	64
resulted from that party's marital responsibilities;	65

(n) Any other factor that the court expressly finds to be	66
relevant and equitable.	67

(2) In determining whether spousal support is reasonable and	68
in determining the amount and terms of payment of spousal support,	69
each party shall be considered to have contributed equally to the	70
production of marital income.	71

(D) In an action brought solely for an order for legal	72
separation under section 3105.17 of the Revised Code, any	73
continuing order for periodic payments of money entered pursuant	74
to this section is subject to further order of the court upon	75
changed circumstances of either party.	76

(E) If a continuing order for periodic payments of money as	77
alimony is entered in a divorce or dissolution of marriage action	78
that is determined on or after May 2, 1986, and before January 1,	79
1991, or if a continuing order for periodic payments of money as	80
spousal support is entered in a divorce or dissolution of marriage	81
action that is determined on or after January 1, 1991, the court	82
that enters the decree of divorce or dissolution of marriage does	83
not have jurisdiction to modify the amount or terms of the alimony	84
or spousal support unless the court determines that the	85
circumstances of either party have changed and unless one of the	86
following applies:	87

(1) In the case of a divorce, the decree or a separation	88
agreement of the parties to the divorce that is incorporated into	89
the decree contains a provision specifically authorizing the court	90
to modify the amount or terms of alimony or spousal support.	91

(2) In the case of a dissolution of marriage, the separation	92
agreement that is approved by the court and incorporated into the	93
decree contains a provision specifically authorizing the court to	94
modify the amount or terms of alimony or spousal support.	95

(F) For purposes of divisions (D) and (E) of this section, a	96
change in the circumstances of a party includes, but is not	97
limited to, any increase or involuntary decrease in the party's	98
wages, salary, bonuses, living expenses, or medical expenses.	99

(G) If any person required to pay alimony under an order made	100
or modified by a court on or after December 1, 1986, and before	101
January 1, 1991, or any person required to pay spousal support	102
under an order made or modified by a court on or after January 1,	103
1991, is found in contempt of court for failure to make alimony or	104
spousal support payments under the order, the court that makes the	105
finding, in addition to any other penalty or remedy imposed, shall	106
assess all court costs arising out of the contempt proceeding	107
against the person and shall require the person to pay any	108
reasonable attorney's fees of any adverse party, as determined by	109
the court, that arose in relation to the act of contempt.	110

~~(H) In divorce or legal separation proceedings, the court may~~	111
~~award reasonable attorney's fees to either party at any stage of~~	112
~~the proceedings, including, but not limited to, any appeal, any~~	113
~~proceeding arising from a motion to modify a prior order or~~	114
~~decree, and any proceeding to enforce a prior order or decree, if~~	115
~~it determines that the other party has the ability to pay the~~	116
~~attorney's fees that the court awards. When the court determines~~	117
~~whether to award reasonable attorney's fees to any party pursuant~~	118
~~to this division, it shall determine whether either party will be~~	119
~~prevented from fully litigating that party's rights and adequately~~	120
~~protecting that party's interests if it does not award reasonable~~	121
~~attorney's fees.~~	122

Sec. 3105.73. (A) In an action for divorce, legal separation,	123
or annulment of marriage or in any post-decree action or	124
proceeding arising from a divorce, legal separation, annulment, or	125
dissolution of marriage, a trial court may award reasonable	126
attorney's fees and litigation expenses to either party if the	127
court finds the award appropriate under the totality of the	128
circumstances involved in the action or proceeding. In determining	129
whether an award is appropriate under the totality of the	130
circumstances, the court shall consider the moving party's need	131
versus each party's ability to pay. The award may be for	132
attorney's fees and litigation expenses that have been incurred or	133
are reasonably anticipated. The trial court may make the award at	134
any stage of the proceedings, including, but not limited to,	135
proceedings while the action is pending in the trial court,	136
post-decree proceedings, or appellate proceedings.	137

(B) The court may specify whether the award of attorney's	138
fees and litigation expenses under this section is payable in	139
gross or by installments. The court may make an award of	140
attorney's fees and litigation expenses under this section in	141
addition to making an award of attorney's fees and litigation	142
expenses under any other provision of the Revised Code or of the	143
Rules of Civil Procedure.	144

(C) Nothing in this section prevents an award of attorney's	145
fees and litigation expenses from being designated as spousal	146
support, as defined in section 3105.18 of the Revised Code.	147

Section 2. That existing section 3105.18 of the Revised Code	149
is hereby repealed.	150

Section 3. Section 3105.18 of the Revised Code, as amended by	151
this act, and section 3105.73 of the Revised Code, as enacted by	152
this act, apply to any action for divorce, legal separation, or	153
annulment of marriage or any post-decree action or proceeding	154
arising from a divorce, legal separation, annulment, or	155
dissolution of marriage if any of the following apply:	156

(A) The action or proceeding is brought, or a notice of	157
appeal in the action or proceeding is filed, on or after the	158
effective date of this act.	159