Rowan v. Rowan - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

Rowan; Lake County Child Support Enforcement Agency, Appellant,
v. Rowan; Tekavec, Appellee.
[Cite as Rowan v. Rowan (1995), Ohio St.3d .]
Domestic relations -- Child-support arrearages -- Attorney fees
-- Trial court's deduction of attorney's contingent fee
from a lump-sum workers' compensation payment does not
offend R.C. 4123.67 or 3113.21.
A trial court's deduction of an attorney's contingent fee from
a lump-sum workers' compensation payment does not offend
R.C. 4123.67 or 3113.21.
(No. 94-328 -- Submitted April 19, 1995 -- Decided July
12, 1995.)
Appeal from the Court of Appeals for Lake County, No.
93-L-044.
Appeal from the Court of Appeals for Lake County, No.
93-L-044.
Attorney James W. Tekavec ("Tekavec"), appellee,
represented Edwin Rowan, Jr. before the Bureau of Workers'
Compensation ("Bureau") concerning permanent partial disability
benefits. The two entered into a contingent fee agreement,
stipulating that Tekavec would receive one third of any award
Edwin received on the claim. The Bureau awarded Edwin a
lump-sum payment in the amount of $3,139.52.
Pursuant to its duties under former R.C.
3113.21(D)(2)(b)(iii), the Bureau informed the Lake County
Child Support Enforcement Agency ("LCCSEA"), appellant, of the
lump-sum payment awarded to Edwin. On April 6, 1992, LCCSEA
notified the Lake County Common Pleas Court that Edwin owed a
child support arrearage of $4,679.68 and moved the court to
order that the lump-sum payment be conveyed to LCCSEA to be
applied to the arrearage. The court granted the motion to
convey later that day.
On April 30, Tekavec moved to intervene in the proceedings
in order to assert his right to his agreed fee in the amount of
one third of the total lump-sum payment, $1,046.50. Tekavec
also moved for a temporary restraining order preventing LCCSEA
from dispersing the payment to Donna Rowan. The court granted
both of Tekavec's motions on May 1. Thereafter, LCCSEA, on

behalf of Donna, moved to dismiss Tekavec's motions and to
vacate the temporary restraining order.
Following a hearing, a referee recommended that LCCSEA's
motions be denied and that LCCSEA be ordered to release to
Tekavec that portion of the lump-sum payment representing his
fee. The trial court rejected LCCSEA's objections to the
referee's report and adopted the referee's recommendations in
full. LCCSEA then appealed to the Lake County Court of
Appeals, which affirmed the trial court's decision.
The cause is now before this court upon a discretionary
appeal.

Charles E. Coulson, Lake County Prosecuting Attorney,
Ariana E. Tarighati and Patricia A. Karle, Assistant
Prosecuting Attorneys, for appellant.
James W. Tekavec, pro se.
Stewart Jaffy & Associates Co., L.P.A., and Marc J. Jaffy,
urging affirmance for amicus curriae , Ohio Academy of Trial
Lawyers.

Cook, J. In this case, we must determine whether the
statutes governing the payment of child-support arrearages from
workers' compensation awards prohibit the deduction of attorney
fees from such awards. We hold that a trial court's deduction
of an attorney's contingent fee from a lump-sum workers'
compensation payment does not offend R.C. 4123.67 or 3113.21.
In its only proposition of law, LCCSEA relies on R.C.
4123.67 and 3113.21 to argue that a trial court may not award
attorney fees from a lump-sum workers' compensation payment.
We, therefore, consider each of these statutes in turn.1
R.C. 4123.67 provides in pertinent part, "Except as
otherwise provided in sections 3111.23 and 3113.21 of the
Revised Code, compensation before payment shall be exempt from
all claims of creditors and from any attachment or execution,
and shall be paid only to the claimants or their dependents."
For the following reasons, we do not find that this provision
prevents the trial court from ordering payment of Tekavec's
contingent fee.
R.C. 4123.67 precludes the Bureau from paying a claimant's
unpaid, pre-existing debts through attachment proceedings. The
statute not only relieves the Bureau from the processing of
such attachments, but also ensures that the awards are
initially available to the claimant or his dependents. In
situations of child support arrearages, the Bureau transfers
lump-sum awards to the jurisdiction of the common pleas court
pursuant to statute. The trial court then exercises its
jurisdiction to order payment of the arrearages from the
lump-sum award. R.C. 4123.67 does not limit what a trial court
may order with respect to a lump-sum award. R.C. 4123.67 does
not preclude a court from reducing a lump-sum award by the
amount necessary to satisfy a claimant's voluntary agreement to
pay the attorney whose efforts generated the award. Thus, we
conclude that a trial court's deduction of an attorney's
contingent fee from a lump-sum workers' compensation payment
does not offend R.C. 4123.67.
LCCSEA also relies on R.C. 3113.21, which directly applies
to situations in which workers' compensation payments are

required to be applied toward satisfaction of child-support
arrearages. The portions of R.C. 3113.21 relevant to this
appeal require trial courts to order that workers' compensation
benefits be paid directly to a child-support enforcement agency
in order to satisfy a claimant's unpaid child-support
obligations. R.C. 3113.21(H)(3)(a)(i) provides the following:
"If the obligor is in default under the support order or has
any unpaid arrearages under the support order, [the court must]
issue an order requiring the transmittal of the lump-sum
payment to the child support enforcement agency."
LCCSEA argues that the foregoing language expressly
requires a trial court to apply the entire lump-sum workers'
compensation award toward payment of a child-support
arrearage. We disagree. R.C. 3113.21(D)(2) outlines the
process by which workers' compensation benefits are withheld
for the purpose of paying a claimant's child support
obligations. As occurred in this case, R.C.
3113.21(D)(2)(b)(iii) requires that, upon the court's order,
the Bureau must notify the child support enforcement agency
when a lump-sum workers' compensation payment of $500 or more
is to be paid to the claimant/obligor. After such notification,
the Bureau must "hold the lump-sum payment for thirty days
after the date on which the lump-sum payment otherwise would be
paid to the obligor, and, upon order of the court, pay any
specified amount of the lump-sum payment to the [child support
enforcement] agency." (Emphasis added.) R.C.
3113.21(D)(2)(b)(iii). Under the foregoing provision, a trial
court is not prohibited from recognizing an attorney's
contractual right to collect a portion of a workers'
compensation lump-sum award as payment for the attorney's
efforts in obtaining the award.
We find support for this interpretation in other
provisions of R.C. 3113.21(D)(2). For example, R.C.
3113.21(D)(2)(c) requires the following: "If the obligor's
workers' compensation benefits are being paid by an employer,
the order issued by the court also shall indicate that the
employer may withhold a fee from the obligor's benefits as a
charge for its services in complying with the order and shall
specify the amount that may be withheld." (Emphasis added.)
Under this provision, the court determines not only the amount
of the claimant's workers' compensation benefits that must be
withheld for child-support payments, but also the amount that
must be paid to the employer in recognition of the costs the
employer incurred in processing the payment.
We do not find that allowing attorneys to recover
contingent fees from workers' compensation awards obtained
through their efforts offends the public policy underlying R.C.
3113.21. In fact, in a very practical way, it furthers the
statute's ultimate goal. Permitting attorneys to be paid for
their services in obtaining lump-sum awards encourages the
pursuit of legitimate workers' compensation claims that will
ultimately benefit children who receive child support.
Furthermore, potential claimants will be more likely to seek
workers' compensation payments that ultimately will be paid to
a child-support enforcement agency if they know that their
attorney's fees will be paid from the award. With the benefit
of an attorney's expertise, claimants should receive the

appropriate compensation and avoid mistakes in the processing,
and, therefore, more child support should be recovered.
While we are sensitive to the state's substantial interest
in satisfying the total amount of a child support arrearage, we
point out that, even allowing the payment of attorney fees, the
objective of R.C. 3113.21 is met. Based on the contingent fee
agreement, Edwin Rowan was entitled to only two thirds of the
lump-sum award, and under our interpretation, that entire
amount is directed to the payment of past-due child support.
Thus, we find that the welfare of children is better served by
encouraging attorneys to assist clients with workers'
compensation claims.
For reason of the foregoing, the judgment of the court of
appeals is affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Wright, F.E. Sweeney and Pfeifer,
JJ., concur.
Resnick, J., concurs in the syllabus and judgment only.

FOOTNOTE:
1. Throughout our discussion of this case, we consider the
relevant provisions of R.C. 3113.21 as they existed at the
time the lump-sum payment was awarded herein.
Rowan v. Rowan.

WRIGHT, J., concurring. I agree with the majority that a
reasonable reading of R.C. 3113.21(D)(2)(b)(iii) provides a
trial court with the discretion to award attorney fees that
were earned in connection with securing a lump-sum workers'
compensation award. I write separately because I believe that
judges need some guidance as to the amount of fees to award.
R.C. 3113.21(D)(2)(c) provides courts with a procedure to
follow in allowing an obligor's employer, who is paying
workers' compensation benefits, to withhold a fee for complying
with the court's order to convey the benefits to the
child-support agency. However, the statute is silent on
providing a procedure for judges to follow in paying attorney
fees out of the lump-sum award. Such a provision is present in
the regulations of the Industrial Commission. The applicable
regulation provides that in order to receive a lump-sum
attorney fee, an attorney must submit an application
documenting the services he provided, as well as the fee he is
requesting. Ohio Adm.Code 4121-3-10(B)(2)(a). Upon receipt of
the application, the Industrial Commission "may approve,
disapprove or modify application for a lump sum payment to pay
such attorney fees, and may allow the payment of a reasonable
fee after review of the application and the supporting
evidence." Ohio Adm.Code 4121-3-10(B)(2)(b). However, because
Ohio Adm.Code 4121-3-10(B)(2) does not apply to the allowance
of attorney fees pursuant to R.C. 3113.21(D)(2)(b)(iii) judges
are left with no guidance as to the amount of attorney fees to
award. In the interest of judicial restraint, I am pleased
that the majority does not take the step of setting forth
guidelines governing this area. Instead, I believe that is the
proper role of the General Assembly, and I urge our legislature
to modify R.C. 3113.21 to provide appropriate guidance.
Preferably that guidance will be consistent with the Industrial

Commission regulations, so that whether the appropriate amount
of attorney fees for a lump-sum workers' compensation award is
determined inside or outside the Industrial Commission, the
standard under which that determination is made will be the same.