Brown v. Brown , 2021 Ohio 1932 ( 2021 )

[Cite as Brown v. Brown, 2021-Ohio-1932.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
JASON R. BROWN,
PLAINTIFF-APPELLANT, CASE NO. 14-20-24
v.
MEAGHAN J. BROWN, OPINION
DEFENDANT-APPELLEE.
Appeal from Union County Common Pleas Court
Trial Court No. 16DR0141
Judgment Affirmed
Date of Decision: June 7, 2021
APPEARANCES:
Rocky Ratliff for Appellant
Natalie J. Bahan for Appellee
Case No. 14-20-24
SHAW, J.
{¶1} Father-appellant, Jason R. Brown (“Jason”), brings this appeal from the
September 22, 2020, judgment of the Union County Common Pleas Court
designating mother-appellee, Meaghan Brown1, residential parent for school
placement purposes of the parties’ child, J.B. On appeal, Jason argues that it was
not in J.B.’s best interest to modify a term of the shared parenting plan (“SPP”) and
designate Meaghan as residential parent of J.B. for school placement purposes.
Further, Jason also appeals the award of $622.50 in attorney’s fees to Meaghan for
an “eleventh hour” continuance requested by Jason’s attorney, which moved an
impending supplemental hearing date.
Background
{¶2} The parties were married in Tennessee in June of 2014. They had one
child together, J.B., born in February of 2015. Pursuant to a negotiated agreement,
the parties’ marriage was terminated by a decree of divorce on February 7, 2017.
At that time the parties also entered into an agreed SPP, which was approved and
adopted by the trial court.
{¶3} The SPP designated both parties as residential parent of J.B. Further,
the SPP provided parenting time two days each week to Meaghan, two days each
week to Jason, then alternating three-day weekends for each parent. As J.B. was
1
Meaghan has remarried and her last name has changed; however, the case is still styled with her name as
Brown.
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too young to be in school when the SPP was entered, the SPP provided that the
parties should cooperate with regard to schooling when J.B. came of school age.
{¶4} In addition, under the SPP, if one of the parties relocated, that party was
required to promptly notify the trial court. In the event that a party did relocate, the
trial court could schedule a hearing on its own motion or at the request of the non-
relocating party to determine whether it was in J.B.’s best interest for the SPP to be
revised.
{¶5} At the time of the divorce, Jason and Meaghan were living
approximately fifteen minutes apart, with Meaghan residing in Marysville, Ohio,
and Jason residing with his parents in Raymond, Ohio. Jason’s parents owned a
large home and he used the lower level as his residence. Prior to the relationship
ending, Meaghan resided with Jason and his parents as well.
{¶6} In February of 2018, Meaghan filed a notice of intent to relocate from
Raymond, Ohio, to West Chester, Ohio, in the Cincinnati area. Meaghan was in a
relationship with a man who lived in the area. After she initially moved, Meaghan
was commuting to a nursing job in Marion, so the parenting schedule still worked.
Eventually, Meaghan finished her nursing degree and got a job in the West Chester
area. At that point, exchanges with J.B. were conducted at a halfway point between
the parties, in Springfield, Ohio.
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{¶7} On December 5, 2018, Meaghan filed a motion to modify the SPP,
stating that a modification of the SPP was in J.B.’s best interest. Meaghan stated
that she had moved from Marysville to West Chester for employment-related
reasons. The motion stated that since Meaghan had moved the parties had continued
executing the SPP; however, Meaghan believed it was in J.B.’s best interest to be
enrolled in pre-school. The motion stated that given the distance between the
residences, pre-school enrollment would necessitate a revision to the terms of the
SPP. Meaghan desired to be designated residential parent for school placement
purposes; however, she noted that she did not want to limit Jason’s parenting time
more than necessary, and that she would consider increases in Jason’s parenting
time during periods when J.B. was not in school.
{¶8} On January 8, 2019, Jason filed his own motion for modification and/or
termination of the SPP. After both parties had filed their motions, a GAL was
appointed for J.B.
{¶9} A hearing was held before a magistrate on the parties’ motions on July
9, 2019. During the hearing, the parties narrowed the issue before the court. Despite
both parties having filed motions to modify the SPP, the parties clarified that they
wished the SPP to remain in place. The parties indicated that they simply wanted
the trial court to determine who should be residential parent for school placement
purposes only. The GAL had recommended a change in the parenting time schedule
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that would coincide with J.B. attending school, and both parties seemed to be fine
with the schedule; however, both parties wished the schooling to be done in their
area. Given that the parents lived nearly two hours apart, a decision would have to
be made as to where J.B. would attend school.
{¶10} The GAL testified at the hearing and reiterated her position from her
written report, stating that she felt Jason was the better option as residential parent
for school placement purposes due to consistency of living in the Raymond area.
She also felt that Jason had a good family support system around him.
{¶11} Meaghan then testified at the hearing that J.B. was adjusted to her
residence in West Chester just as she was to the home in Raymond. Further,
Meaghan testified that she had remarried and that she had a good family support
system in her area through her in-laws, which she felt the GAL did not take into
account in her written report. In addition, Meaghan testified that she was going to
be undertaking “PRN” status at work, which meant she only had to work two days
out of every six weeks to keep her license active. She indicated that she could
schedule those days when Jason had parenting time, and effectively be a stay-at-
home parent for J.B.
{¶12} Meaghan also detailed some issues that she had with Jason over the
years, such as Jason excessively taking J.B. to the doctor. She testified that Jason
did not tell her about many of the visits as they happened, and that she only learned
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of them when she received an “explanation of benefits” from insurance. In fact, she
testified that at one point J.B. had a catheter for a urinary tract infection and
Meaghan was not informed.
{¶13} In addition, Meaghan testified that Jason did not offer her the right of
first refusal for parenting time pursuant to the SPP even though he should have based
on the wording of the SPP. Nevertheless, Meaghan testified she thought Jason was
a good father and she did not want to limit his parenting time unnecessarily, she just
wanted J.B. to be in school.
{¶14} The hearing was continued to a second day: August 16, 2019. On the
second day of the hearing Jason provided testimony that he had lived in the home
with his parents in Raymond since around 2000. He indicated his parents were
available to care for J.B. if necessary and that his sister only lived ten minutes away.
Further, he testified that he went to North Union schools and he wanted J.B. to go
there. In addition, Jason testified he had gotten a new job with work hours of 7:30
a.m. to 4:30 p.m. However, he testified that he could work from home at times,
which would allow him to be there for J.B. if she had any issues. At the conclusion
of the hearing, the parties submitted written closing arguments.
{¶15} On December 27, 2019, the magistrate issued a lengthy written
recommended decision on the matter that contained numerous enumerated factual
findings leading to the magistrate’s conclusions of law. Ultimately the magistrate
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disagreed with the GAL’s recommendation that Jason was the better option to be
residential parent of J.B. for school placement purposes because Meaghan could
modify her schedule as a nurse to only work when J.B. was with Jason, thus allowing
her to care for J.B. at all hours. The magistrate also felt that Meaghan had a strong
support system around her. The magistrate felt that the GAL restricted a support
system to only blood relatives, which did not reflect the reality of many families.
Therefore Meaghan was recommended to be residential parent of J.B. for school
placement purposes.
{¶16} On January 10, 2020, Jason filed objections to the magistrate’s
decision. In his objections, Jason gave responses to each of the magistrate’s
enumerated factual findings. He did not contest many of the magistrate’s broader
factual findings; however, he did argue that the evidence disputed Meaghan’s claim
that her work schedule could be such that she was effectively a stay-at-home mother.
Further, and more importantly, Jason disagreed with the magistrate’s
recommendation that Meaghan should be named residential parent of J.B. for school
placement purposes.
{¶17} On January 22, 2020, Meaghan filed a response to Jason’s objections
to the magistrate’s decision. In the response Meaghan brought to light two new
issues: that her employment status had officially been altered so she was on “PRN”
status, and that the home Jason had lived in with his parents in Raymond had burned
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down. The home, which Jason argued J.B. was adjusted to, was a “total loss” and
resulted in Jason and his parents moving to Huntsville.2
{¶18} After reviewing the objections to the magistrate’s decision and the
response to the objections, the trial court filed an order stating that the new issues
raised in Meaghan’s response necessitated a further, supplemental hearing as the
issues raised were germane to the trial court’s ruling on the objections. Thus the
trial court set the matter for a hearing on those limited issues to supplement the prior
hearing. However, due to, inter alia, covid-related restrictions, the supplemental
hearing was delayed for several months.
{¶19} The hearing on the supplemental issues was scheduled to convene
June 29, 2020. However, on June 26, 2020, Jason filed a motion to continue, stating
that J.B. had disclosed she had been inappropriately touched by Meaghan’s
husband. Because of this, Jason requested a continuance of the supplemental
hearing. He also requested that the GAL be reappointed and that time be provided
to allow the GAL to investigate the matter.3
{¶20} According to the record, the magistrate orally granted the motion to
continue the hearing immediately; however, a magistrate’s order was not filed until
July 27, 2020. In that order, the magistrate stated that Jason’s motion had been
granted, and that the GAL should supply a supplemental report seven days before
2
On January 29, 2020, Jason filed a notice of intent to relocate to Huntsville, Ohio.
3
Notably, the motion’s certificate of service was addressed to the wrong attorney.
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the final hearing. However, the magistrate stated that due to the eleventh hour of
Jason’s request, Jason would be required to pay Meaghan’s attorney’s fees for
preparation for the hearing as a result of having to continue the hearing. The
magistrate stated that Meaghan’s attorney had ten days to file a request for fees
incurred in preparing specifically for the June 29, 2020 hearing that did not occur.
Finally, the magistrate reiterated that the supplemental hearing in this matter would
be limited to only the two issues set forth in the trial court’s January 27, 2020 order.4
{¶21} On August 6, 2020, Meaghan’s attorney filed a request for attorney’s
fees consistent with the magistrate’s order. A motion attached stated that Jason’s
continuance request was calculated to delay review of the magistrate’s decision and
to prevent the trial court from adopting the magistrate’s decision. Further,
Meaghan’s attorney argued that the allegations against Meaghan’s husband had
been investigated by multiple sources and were found to be unsubstantiated.
Meaghan stated that her husband had taken and passed a polygraph examination,
and that a law enforcement investigation was closed on the matter. As to the
attorney’s fees, Meaghan’s attorney attached an invoice for the hours billed with
regard to the June 29, 2020 hearing. The invoice established that 4.5 hours had been
worked for a total bill of $810. An additional .5 hours was worked with no bill.
4
Jason filed objections to the magistrate’s decision on July 27, 2020, setting terms for the continuance. The
trial court overruled the objections the next day, finding that they were filed late outside of the rule, and that
the filing was not appropriate in any event.
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Meaghan’s attorney filed an affidavit stating that the bill was true and accurate to
the best of her knowledge.
{¶22} On August 12, 2020, the magistrate filed an order awarding
Meaghan’s attorney $622.50 in attorney’s fees. The magistrate stated the fees were
being awarded “based upon Father’s unsubstantiated allegations of sexual abuse
regarding the parties’ minor daughter.” (Doc. No. 102). The magistrate reduced
the amount requested for attorney’s fees by one billed hour because that hour was
unrelated to preparing for the June 29, 2020 hearing, which is the only issue the
magistrate felt Meaghan should be compensated for.
{¶23} On August 17, 2020, the GAL filed a written supplemental report
indicating that Meaghan’s husband had in fact taken, and passed, a private and a
regular polygraph examination. The GAL’s report also noted that in the alleged
disclosures made by J.B., she referred to her stepfather as “monkey boy,” which was
a name that Jason—and perhaps only Jason—used for the stepfather. The GAL
recommended that the court’s prior orders remain in place, but she added that
stepfather should remain away from J.B. until all investigations were completed.
{¶24} On August 24, 2020, Jason filed a motion to “set aside” the
magistrate’s order granting Meaghan’s counsel’s attorney’s fees in the amount of
$622.50. He argued, inter alia, that no evidentiary hearing had been held with
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regard to J.B.’s disclosures, thus the magistrate’s determination that the allegations
were “unsubstantiated” was improper at that time.
{¶25} The trial court reviewed Jason’s motion to set aside the magistrate’s
order with regard to the attorney’s fees and found that the “unsubstantiated” finding
related to the allegations against the stepfather was supported by the record and that
the attorney’s fees were appropriate and equitable for the limited purpose they were
given in this matter.
{¶26} The supplemental hearing that the trial court had ordered in January of
2020 was finally held August 21, 2020, before the magistrate. Following the
hearing, the magistrate filed a supplemental decision, stating that the evidence
established that Jason had been living with his parents, that the home had burned
down, and that Jason was currently residing in a different school district than the
one he wanted to send J.B. to initially. However, Jason had open-enrolled J.B. in
North Union and wanted her to attend that school. Further, the magistrate
determined that the evidence showed that J.B. had been going to “Lakota” schools
in the area where Meaghan lived. In addition, the evidence showed that Meaghan’s
employment schedule had been altered so that she could be home with J.B. No
objections were filed to the supplemental decision.
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{¶27} On August 24, 2020, Jason filed a new request to modify custody and
for an evidentiary hearing, stating that J.B. was unsafe in Meaghan’s home due to
the allegations made against Meaghan’s husband.
{¶28} On September 22, 2020, following the supplemental hearing, with all
the evidence now before it, the trial court filed an entry denying Jason’s objections
to the magistrate’s decision.
{¶29} Also on September 22, 2020, the trial court filed a lengthy written final
judgment entry and order on the matter. The trial court independently reviewed the
matter and ultimately concurred with the magistrate, finding that it was in J.B.’s best
interest that Meaghan be designated residential parent of J.B. for school placement
purposes. It is from this judgment that Jason appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1
The trial court erred when it denied the Plaintiff/Appellant’s
Motion for Custody and Request for Evidentiary Hearing.
Assignment of Error No. 2
The trial court erred when it failed to award custody of the minor
child to the Plaintiff/Appellant.
Assignment of Error No. 3
The trial court erred when it awarded defendant attorney fees.
First Assignment of Error
{¶30} In his first assignment of error, Jason argues that the trial court erred
in this matter by “denying” his August 24, 2020 motion for custody and his request
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for a related evidentiary hearing. In the alternative, he argues that there is no final
appealable order here because his newly filed motion for custody remains
outstanding.
{¶31} Importantly, the trial court specifically addressed Jason’s newly filed
motion for custody in a footnote on page 8 of its final judgment entry. “The Court
notes that subsequent to the trial, while awaiting the objection period to pass, Father
filed separate Motion for Custody and Request for Evidentiary Hearing. That matter
will be set in due course as it raises issues not litigated in the present action.” (Doc.
No. 119).
{¶32} Jason argues that the trial court’s order leaves an issue open for
litigation, rendering this action incomplete. However, Jason’s new custody claim is
independent of the current litigation related to which parent would assume the role
of residential parent of J.B. for school placement purposes. Instead, his new motion
represents a claim for modification of custody as a whole. See Denkewalter v.
Denkewalter, 9th Dist. Medina No. 13CA0082-M, 2015-Ohio-3171, ¶ 9 (“A parent
can always invoke the continuing jurisdiction of the domestic relations court to
consider reallocation of parental rights.”).
{¶33} Importantly, the matter before us, namely who should be residential
parent for school placement purposes, has concluded. The separate and newly filed
custody matter will be litigated in the future, if appropriate and necessary, and it can
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be appealed at the conclusion of that litigation. The new, separate issue does not
render the current judgement incomplete, or make it a non-final order. Barton v.
Barton, 2d Dist. Greene No. 2016-CA-12, 2017-Ohio-980, ¶ 52, Carpenter v.
Carpenter, 12th Dist. Butler No. CA2013-05-083, 2013-Ohio-4980, ¶ 8. (“
‘Final orders are those that dispose of the whole case or
some separate and distinct subdivision of it while leaving nothing for future
determination.’ ”). For these reasons, we find that Jason’s new motion has not been
denied and it is still pending for future, separate action. Therefore, Jason’s first
assignment of error is overruled.
Second Assignment of Error
{¶34} In his second assignment of error, Jason argues that the trial court erred
when it selected Meaghan as residential parent of J.B. for school placement
purposes.
Standard of Review
{¶35} This Court reviews a decision regarding parental rights for an abuse
of discretion. King v. King, 3d Dist. Union No. 14-11-23, 2012-Ohio-1586, ¶ 9,
citing Ralston v. Ralston, 3d Dist. Marion No. 9–08–30, 2009–Ohio–679, ¶ 13,
citing Davis v. Flickinger, 77 Ohio St.3d 415, 1997–Ohio–260. An abuse of
discretion suggests the trial court’s decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “The
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reason for this standard of review is that the trial judge has the best opportunity to
view the demeanor, attitude, and credibility of each witness, something that does
not translate well on the written page.” Davis at 418. The Supreme Court of Ohio
has stated that this standard “is even more crucial in a child custody case.” Id. at
419.
Relevant Authority
{¶36} When making a determination regarding parental rights, the domestic
relations court must follow statutory guidelines. Miller v. Miller, 37 Ohio St.3d 71,
74 (1988). “Revised Code 3109.04 governs court awards of parental rights and
responsibilities, as well as the modification of shared parenting
agreements.” Ralston at ¶ 16. This Court has previously determined that R.C.
3109.04(E)(2)(b) applies when the domestic relations court modifies the
designation of a residential parent for school purposes, but otherwise maintains both
parents as residential parents with the same parental rights and
responsibilities. Id. at ¶ 17. Revised Code 3109.04(E)(2)(b) provides:
The court may modify the terms of the plan for shared parenting
approved by the court and incorporated by it into the shared
parenting decree upon its own motion at any time if the court
determines that the modifications are in the best interest of the
children or upon the request of one or both of the parents under
the decree. Modifications under this division may be made at any
time. The court shall not make any modification to the plan under
this division, unless the modification is in the best interest of the
children.
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{¶37} When determining the child’s best interest, the court should consider
the factors in R.C. 3901.04(F)(1), which include:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant
to (B) of this section regarding the child’s wishes and concerns as
to the allocation of parental rights and responsibilities concerning
the child, the wishes, and concerns of the child, as expressed to the
court;
(c) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly
affect the child's best interest;
(d) The child’s adjustment to the child’s home, school, and
community;
(e) The mental and physical health of all persons involved in the
situation;
(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and companionship
rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that
parent pursuant to a child support order under which that parent
is an obligor;
(h) Whether either parent or any member of the household of
either parent previously has been convicted of or pleaded guilty
to any criminal offense involving an act that resulted in a child
being an abused or a neglected child * * *;
(i) Whether the residential parent or one of the parents subject
to a shared parenting decree has continuously and willfully denied
the other parent's right to parenting time in accordance with an
order of the court;
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(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.
Analysis
{¶38} At the outset, we note that this is not a case where the parents regularly
disparage each other. Both parents get along well enough to continue to engage in
a SPP and both parents want the SPP to continue. However, due to the distance
between the parents, a decision had to be made as to where J.B. would attend school.
Both parents wanted J.B. to attend school in their respective area, thus the trial court
had to make a difficult decision between two capable and loving parents.
{¶39} In order to make its determination, the trial court analyzed the
statutory best interest factors in R.C. 3901.04(F)(1). Under its analysis, the trial
court determined that both parents sought to be named residential parent for school
placement purposes (factor (a)). The trial court noted that J.B. was not interviewed
in camera (factor b); however, the GAL initially expressed that Jason would be the
better option for residential parent for school placement purposes. The trial court
conducted the following analysis in disagreeing with the GAL.
The GAL has recommended that Father be named school
residential parent with Mother being given liberal parenting time.
The GAL’s recommendation is based primarily upon two
considerations (1) consistency; and (2) family support. The GAL
found that consistency is important in this child’s life. In the
GAL’s analysis, [J.B.] has lived in Father’s house all her life. The
GAL finds this consistency to be a determining factor. Mother
astutely points out that since the child was three, she has lived in
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both Father’s home and Mother’s home an equal amount of time.
Accordingly, consistency as it relates to residence, would be
equivalent regardless which parent is named school residential
parent.
The GAL finds that Father has a better support system in
the event of emergencies. He lives [or lived] in the lower level of
his parent’s home. Consequently, paternal grandparents are
always there to watch [J.B.]. His sister also lives nearby. In the
GAL’s analysis, Mother’s support system is comprised of
individuals who may be significant in Mother’s life, but are not
blood relatives. Apparently, this factor weighs heavily in the
GAL’s analysis.
The Court agrees that a support system is significant when
parenting children. The Court is not as focused as the GAL on
whether that support system is comprised of blood relatives.
Excellent support systems comprised of caring, competent and
loving adults are as effective as those comprised of blood relatives.
Quite often parents rely on neighbors, friends, work mates or
church members to comprise effective support systems. Mother’s
support system is comprised of her Husband, who is home most
of each day. Mother’s support system also includes her
Husband’s parents and nearby family. The Court finds that both
parents have acceptable support systems each can rely upon in
the event of exigent circumstances.
(Doc. No. 119).
{¶40} With regard to factor (c), the trial court noted that J.B. had a good
relationship with both parents and extended families, and with regard to factor (d)
the trial court’s analysis indicated J.B. was adjusted to both homes. Further, both
parents were determined to be in good physical and mental health5 (factor (e)).
5
Jason disputes this due to issues Meaghan has had in the past with, inter alia, anorexia but there are no
indications of any current issues.
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{¶41} With regard to factor (f), and the parent more likely to honor and
facilitate parenting time, the trial court noted some issues with Jason failing to offer
Meaghan the right of first refusal for parenting time. The trial court found that this
failure on Jason’s behalf illustrated some continuous denial of Meaghan’s rights
(factor i). The trial court found that factors (g), (h), and (j) were not relevant here.
{¶42} After reviewing the evidence and the appropriate legal factors, the trial
court found that
The determining factor in the Court’s analysis is that Mother
stands ready to modify her work schedule so she can essentially
become a stay at home mom. With Mother as school residential
parent, she will be home to care for her daughter at all hours.
Mother will be home in the event the child becomes ill at school,
or cannot go to school due to illness. She will be there to take her
to school and pick her up. She will be available to monitor her
daughter’s progress both educationally and socially. Although
Father testified that he has more flexibility in his new job, the
Court finds Father’[s] testimony less credible regarding his
availability. Father’s testimony was that he spends 4-6 hours per
day out of the house at work. Father’s testimony appears
contrived in order to justify not offering his ex-Wife first refusal.
If Father were designated school residential parent, there is a
substantial likelihood that parenting of this child would be
delegated to paternal Grandparents. In this instance, everyone
agrees that both Mother and Father are good, loving and suitable
parents. The Court finds that despite being loving Grandparents,
there is no need to delegate parental responsibility when a
perfectly suitable parent is available 24/7 to raise her daughter.
The Court finds that it is in [J.B.]’s best interest that Mother be
designated school residential parent. Despite designating Mother
school residential parent, the Court finds Father is deserving of a
prominent place in his daughter’s life. He will have substantial
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parenting time so as to maintain the strong Father/Daughter
bond.
(Doc. No. 119).
{¶43} Jason now argues that the trial court’s determination was an abuse of
discretion because he was “not the reason” that this matter was before the court,
blaming Meaghan’s move. Further, he argues that the trial court failed to consider
the living arrangements of J.B., the bond J.B. had with her grandparents, and the
“constant” work changes of Meaghan.
{¶44} However, in our review of the trial court’s lengthy entry, we find that
the trial court carefully weighed the factors at issue and came to a difficult decision
between two good parents. There was never going to be a “winner” in this scenario,
just the parent designated to be the residential parent for school placement purposes.
{¶45} Moreover, by all indications the trial court did consider J.B.’s living
situation and her bonds. In fact there was a supplemental hearing that established
that the home Jason is claiming J.B. was so attached to has since burned down.
Further, the supplemental hearing showed that Meaghan had gone to PRN status as
she stated she would. Importantly, the trial court was persuaded by the fact that
Meaghan would be available at all times to J.B. and the trial court specifically found
Jason’s claims regarding his availability specious.
{¶46} A trial court’s determination regarding custody must be given the
“utmost respect.” Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). Given the trial
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court’s clear analysis of the issues and factors presented in this case, we cannot find
that there was an abuse of discretion by naming Meaghan residential parent of J.B.
for school placement purposes. Evidence was presented that supports the trial
court’s difficult decision in this matter. Therefore, Jason’s second assignment of
error is overruled.
Third Assignment of Error
{¶47} In Jason’s third assignment of error he argues that the trial court erred
by awarding Meaghan attorney’s fees related to the “eleventh hour” continuance of
the supplemental hearing. More specifically, he argues that this case did not contain
an allegation of frivolous conduct or a finding of frivolous conduct.
Standard of Review
{¶48} A determination as to whether to award attorney fees in a domestic
relations case is left to the sound discretion of the trial court and will not be reversed
on appeal absent an abuse of discretion. Graham v. Graham, 3d Dist. Union No.
14-19-18, 2020-Ohio-1435, ¶ 20, Cichanowicz v. Cichanowicz, 3d Dist. Crawford
No. 3-13-05, 2013-Ohio-5657, ¶ 92.
Analysis
{¶49} A total of $622.50 was awarded to Meaghan in attorney’s fees in this
case pursuant to R.C. 3105.73(B), which reads as follows.
In any post-decree motion or proceeding that arises out of an
action for divorce, dissolution, legal separation, or annulment of
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marriage or an appeal of that motion or proceeding, 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.
According to R.C. 3105.73(C), “The court may make an award of attorney’s fees
and litigation expenses under this section in addition to making an award of
attorney’s fees and litigation expenses under any other provision of the Revised
Code or of the Rules of Civil Procedure.” (Emphasis added.)
{¶50} Based on the plain statutory language, attorney’s fees can be awarded
under R.C. 3105.73 separate from, or in addition to, other statutory subsections and
the civil rules. Thus on appeal where Jason claims that the trial court needed to find
frivolous conduct under R.C. 2323.51 before awarding attorney’s fees, he is
mistaken. That statute provides an additional, separate method for awarding
attorney’s fees. Therefore this argument is not well-taken.
{¶51} As to the attorney’s fees that were awarded in this case under R.C.
3105.73, Meaghan’s attorney filed a request for fees at the direction of the
magistrate. The fees were specifically limited to preparation for the June 29, 2020,
supplemental hearing that had to be continued due to Jason’s late motion. As part
of her motion, Meaghan’s attorney submitted an itemized invoice for $810. The
magistrate reviewed the invoice and found that one hour was spent on issues
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unrelated to preparation for the June 29, 2020 supplemental hearing, thus the bill
was reduced by that hour of billing to the amount of $622.50.
{¶52} Jason objected to the magistrate’s award of attorney’s fees and the trial
court reviewed the matter under R.C. 3105.73(B). The trial court found that the
award was equitable, conducting the following analysis.
The backdrop upon which this action proceeds must be
considered. The contentious nature of the proceedings, including
testimony regarding Paternal Grandparent interference, the fact
that the trial date had been set months in advance with
participation by counsel, coupled with an unsubstantiated
eleventh hour allegation of sexual abuse, all weighed in favor of
granting the award. Under the particular circumstances of this
case, the Chief Magistrate found it inequitable for Mother to pay
twice for trial preparation. Considering the equities involved, the
Court finds it equitable for Father to pay the attorney fees as
Ordered. Father’s motion to set aside the Magistrate’s Order is
without merit.
(Doc. No. 117).
{¶53} On appeal, Jason seems to largely take issue with the trial court’s
determination that the allegations against the stepfather were unsubstantiated when
a hearing on the matter had not been held. He claims that when the continuance was
requested, this information was unknown. However, after reviewing the matter, the
trial court found that the claims had been investigated and were found to be
unsubstantiated. Further, the trial court found that the late hour of the allegation and
the ongoing legal animosity necessitated an award here. In addition, the
supplemental hearing had been set for a long time and it was covering limited issues,
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begging the question of why a continuance was necessary for those limited purposes
based on an unrelated issue.
{¶54} To the extent that Jason argues that Meaghan did not present testimony
that her fees were “reasonable” in this case, Ohio Appellate Courts awarding
attorney’s fees under R.C. 3105.73 have generally held that “ ‘[a] trial court may
also use its own knowledge and experience when evaluating the nature of the
services rendered and the reasonableness of the fees charged.’ ” Miller v. Miller, 6th
Dist. Sandusky No. S-16-27, 2017-Ohio-7646, ¶ 33, quoting Falk v. Falk, 10th Dist.
Franklin No. 08AP-843, 2009-Ohio-4973, ¶ 39 (analyzing attorney’s fees under
R.C. 3105.73(A) rather than (B)). “Further, of these cases, those in which an award
of attorney’s fees was found to be inappropriate involved situations where no
supporting documentation—such as an invoice, a billing statement, or records of
hourly rates—was submitted for the trial court to evaluate.” Id. citing, inter alia,
Miller at ¶ 34. Here an invoice was submitted and evaluated by the trial court.
{¶55} Given the broad discretion trial courts are vested with to award
attorney’s fees, particularly in domestic relations cases, we cannot find that there
was an abuse of discretion in this case. Attorney’s fees were awarded under a very
specific statute for a very limited purpose. See Graham, supra, at ¶ 21. For all of
these reasons, Jason’s third assignment of error is overruled.
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Conclusion
{¶56} For the foregoing reasons Jason’s assignments of error are overruled
and the judgment of the Union County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlr
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