In re Marriage of Krejci & Krejci ( 2024 )

[Cite as In re Marriage of Krejci & Krejci, 2024-Ohio-1529.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
IN RE: THE MARRIAGE OF CASE NO. 2023-A-0054
MICHAEL KREJCI,
Civil Appeal from the
Appellant, Court of Common Pleas
- and -
Trial Court No. 2012 DR 00075
KATHERINE KREJCI,
Appellee.
OPINION
Decided: April 22, 2024
Judgment: Affirmed
Kenneth J. Cahill, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH
44077 (For Appellant).
Laura M. Wellen, Wellen Law Firm, LLC, 19885 Detroit Avenue, Suite 259, Rocky River,
OH 44116 (For Appellee).
MATT LYNCH, J.
{¶1} Plaintiff-appellant, Michael Krejci, appeals the judgment of the Ashtabula
County Court of Common Pleas, for failing to enter an award of attorney fees and order
to pay child support against defendant-appellee, Katherine Krejci n.k.a. Jameson. For
the following reasons, we affirm the decision of the court below.
{¶2} On May 15, 2012, the parties were granted a dissolution of their marriage.
Jameson was pregnant at the time of the dissolution. A daughter was born to the parties
on July 28, 2012.
{¶3} On August 30, 2013, the parties entered into a Shared Parenting Plan.
Under the Plan, Krejci was ordered to pay child support to Jameson.
{¶4} On March 1, 2020, a Modified Support Order went into effect whereby Krejci
was ordered to pay $495.89 per month as determined by the Guideline Worksheet.
{¶5} On June 9, 2020, Krejci filed an Objection to Administrative Support Order
on the grounds that Jameson was credited with unjustified daycare expenses.
{¶6} On April 20, 2021, Krejci filed a Motion to Terminate Shared Parenting Plan.
{¶7} On July 28, 2021, Krejci’s Motion to Terminate was resolved by the adoption
of a new Shared Parenting Plan. Under the new Plan, the parties’ parenting time was
substantially equalized. With respect to child support, the Plan provided: “Child Support
remains controversial and shall be heard at a hearing with the date thereof to be
determined by further court order.”
{¶8} On November 29, 2021, Krejci filed a Motion to Modify and/or Terminate
Child Support on the grounds that “the parties entered into a modified shared parenting
plan in which each parent received fifty percent (50%) parenting time” and “Defendant-
Mother earns more money than Plaintiff-Father.”
{¶9} On December 16, 2021, Jameson filed a Motion to Terminate or in the
Alternative to Modify Parenting Plan on the grounds that “Michael is not suited to co-
parenting” and “refuses to embrace the basic axiom that shared parenting requires
communication and respect.”
{¶10} On April 27, 2022, Krejci filed a Motion for Attorney Fees and Costs,
pursuant to R.C. 3105.73, with respect to Jameson’s Motion to Terminate or in the
Alternative Modify Shared Parenting.
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{¶11} On December 2, 2022, Krejci filed a Supplemental Motion for Attorney Fees
and Costs.
{¶12} On December 12, 2022, a hearing was held before a magistrate on Krejci’s
Objection to Administrative Support Order, Motion to Modify and/or Terminate Child
Support, and Motion for Attorney Fees and Costs; and on Jameson’s Motion to Terminate
or in the Alternative to Modify Parenting Plan.
{¶13} On February 8, 2023, a Magistrate’s Decision was issued with findings of
fact and conclusions of law.
{¶14} The magistrate sustained Krejci’s Objection to the Administrative Support
Order finding “no evidence to sustain a day care credit in March 2020.”
{¶15} The magistrate granted Krejci’s Motion to Terminate Child Support finding
“it unjust and inappropriate and not in the best interests of the minor child for guideline
support to be paid.”
{¶16} The magistrate denied Jameson’s Motion to Terminate the Parenting Plan
based on the following:
Defendant does not believe the parties are communicating properly
which requires a termination or modification of the Shared Parenting
Plan according to her pleadings and her testimony. Defendant
testified to four examples where Plaintiff made unilateral decisions in
opposition of the Shared Parenting Plan:
1. At some point, Defendant scheduled a virtual doctor
appointment for the child due to illness and the child was
diagnosed with asthma. Plaintiff did not agree with the
diagnosis because it was done during a virtual appointment.
It was agreed that Plaintiff would schedule an appointment for
a second opinion. The second opinion appointment was
scheduled and then rescheduled a couple of times by the
provider.
Defendant was using Plaintiff’s second opinion appointment
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as a follow up appointment for the child’s asthma diagnosis.
Defendant felt that the appointment was scheduled untimely
and that Plaintiff should have scheduled the appointment
sooner especially since it was rescheduled by the provider a
couple of times. Defendant never scheduled a follow up
appointment for the child. Rather she piggy backed onto
Plaintiff’s second opinion appointment and then was upset
with the untimeliness.
2. For the 2022-2023 school year, Plaintiff felt the child should
determine if wearing a mask was necessary or not at school.
Defendant believed that the child should wear a mask.
Plaintiff signed a mask policy document he received from
another parent indicating that the child did not have to wear a
mask at school. Plaintiff told the child to keep it in her school
bag if the school required it. Plaintiff signed the document
without consulting Defendant.
3. During Parent/Teacher Conferences the first quarter of the
2022-2023 school year, a school counselor mentioned to
Plaintiff that she was going to speak with the child about
participating in Lunch Brunch. Lunch Brunch is where the
counselor sits with students to discuss various topics during
school lunch. The counselor indicated that she was going to
ask several of the young girls that were the child’s friends to
participate. No permission from a parent was required. A
child’s participation is voluntary. Plaintiff did not discuss
Lunch Brunch with Defendant.
4. The child’s school football team went to the state
championship. As a result, the school let students leave with
parents at noon or they could stay and watch movies. This
fell on one of Plaintiff’s parenting days. Plaintiff made the
decision to remove the child from school at noon without
telling Defendant.
Defendant also indicates that the current Shared Parenting Plan is
affecting the child’s attendan[ce] and grades at school. Upon
investigation into this concern, the Guardian ad litem found that in
the first quarter of 5th grade, the child was absent 6.5 days. In the
second quarter of 5th grade through November 30, 2022, the child
was absent 8 days. The break down from the school which is
attached to the Guardian ad litem Report indicates that the child has
more absences while in Defendant’s care. The child has not been
tardy this school year.
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The child had more absenteeism in the 2021-2022 school year.
During Plaintiff’s parenting time, step-mother often assists with
transportation to and from school.
Also in her investigation, the Guardian ad litem checked the child’s
academic record since the Shared Parenting Plan went into effect.
The absences and the change to a Shared Parenting Plan schedule
are not harming the child’s academics. In fact, the child was on the
honor roll the first quarter of this school year.
The Guardian ad litem spoke with the child regarding this issue. The
child is happy and healthy. She wants to spend as much time with
both parents as possible. The child has a loving relationship with
both parents and half siblings in each parent’s home.
The Guardian ad litem is concerned about the disparaging
comments both parents make about the other parent in front of the
child.
Parties have been using Our Family Wizard to communicate. Both
parties believe OFW helps with their communication.
The Guardian ad litem is not recommending a change in the
parenting time.
{¶17} The magistrate denied Krejci’s Motion for Attorney Fees and Costs based
on the following considerations: “There have been approximately 20 hearings held in the
[present] case on various motions and objections filed by both parties since the Decree
of Dissolution. The motions and objections have included issues of parenting time and
child support. Based on all the foregoing findings and applicable statutes, the Magistrate
does not find it equitable to grant attorney fees and costs.”
{¶18} On February 16 and July 25, 2023, Krejci filed Objections and Supplemental
Objections respectively to the Magistrate’s Decision.
{¶19} On August 16, 2023, the trial court overruled Krejci’s objections and
adopted the Magistrate’s Decision.
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{¶20} On September 12, 2023, Krejci filed a Notice of Appeal. On appeal, Krejci
raises the following assignments of error:
[1.] The trial court erred in denying Appellant’s motion for attorney
fees under R.C. 3[1]05.73(B) when Appellee filed a frivolous motion
to terminate a shared parenting plan.
[2.] The trial court erred in denying Appellant’s motion for attorney
fees under R.C. 3105.73(B) because Appellee filed a complaint with
CSEA for unpaid child support when a court order was in place
stating that the issue of child support was yet to be decided.
[3.] The trial court erred in failing to order Appellee to pay child
support.
{¶21} The first two assignments of error contest the denial of Krejci’s Motion for
Attorney Fees and Costs.
{¶22} “In any post-decree motion or proceeding that arises out of an action for
divorce, dissolution, legal separation, or annulment of 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.” R.C. 3105.73(B).
{¶23} “[A]lthough statutorily authorized to do so, the domestic relations court is
not obligated to make such an award in every case.” Jestice v. Jestice, 12th Dist. Butler
No. CA2023-07-072, 2024-Ohio-122, ¶ 30. “Based upon the plain language of R.C.
3105.73(B), the main consideration in awarding attorney fees under this section is
whether the court finds such an award ‘equitable.’” Lykins v. Lykins, 2023-Ohio-4469, __
N.E.3d __, ¶ 68 (12th Dist.). “Because a court addresses an award of attorney fees
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through equitable considerations, a trial court properly can consider the entire spectrum
of a party’s actions, so long as those actions impinge upon the course of the litigation.”
(Citation omitted.) Patron v. Patron, 5th Dist. Stark No. 15CA00088, 2015-Ohio-5404, ¶
23.
{¶24} “The decision to award attorney fees under R.C. 3105.73 lies within the
sound discretion of the trial court and will not be reversed absent an abuse of that
discretion.” Wilson v. Wilson, 8th Dist. Cuyahoga No. 112105, 2023-Ohio-1752, ¶ 23
(cases cited); Willoughby v. Willoughby, 11th Dist. Trumbull No. 2012-T-0095, 2014-Ohio-
743, ¶ 50 (“[a] court’s decision on a request for attorney fees will not be reversed absent
an attitude that is unreasonable, arbitrary, or unconscionable”).
{¶25} Krejci asserts that it is inequitable not to award him attorney fees given that
Jameson’s Motion to Terminate or in the Alternative to Modify Parenting Plan was “on its
face, baseless,” and that her arguments in favor of terminating shared parenting were all
frivolous. Brief of Plaintiff-Appellant at 7. While we take no exception to the magistrate’s
conclusion that Jameson’s Motion was meritless, we do not agree that it was, on its face,
baseless or that her arguments were wholly frivolous.
{¶26} Jameson’s Motion described the adoption of the new Shared Parenting Plan
in July 2021 as “a long and demanding process * * * to arrive at a parenting schedule to
which I had HUGE reservations.” She continued: “I was counseled by the GAL and my
attorney to allow Michael an opportunity to make good on various promises and
assertions relative to his ability to co-parent our daughter.” However, she subsequently
felt Krejci was “not suited to co-parenting” and “unable to discuss anything related to [their
daughter] with [her].” It is well established that “the failure of parents to communicate
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and/or cooperate effectively are grounds for terminating a shared parenting plan.”
(Citation omitted.) Thomas v. Thomas, 11th Dist. Trumbull No. 2023-T-0015, 2023-Ohio-
3941, ¶ 45; Ziegler v. Ziegler, 2d Dist. Greene No. 2021-CA-18, 2022-Ohio-1527, ¶ 33.
Jameson’s Motion was not baseless on its face. Again, while Jameson’s arguments that
Krejci acted unilaterally in making decisions for the child or in ways contrary to the child’s
well-being proved meritless, they are not significantly different from arguments raised by
Krejci in his Motion to Terminate Shared Parenting. See Plaintiff-Father’s Motion to
Terminate Shared Parenting (“my daughter has been missing an inordinate amount of
school over the last two (2) years” and “I am never consulted about this issue”; “[the
child’s] counseling appointments have been routinely scheduled for Wednesdays when I
have parenting time”; and “Defendant will not keep me timely informed of school events”).
{¶27} Even assuming, arguendo, that Jameson’s Motion was frivolous and/or
made in bad faith, the magistrate was not obligated to award Krejci attorney fees unless
she deemed it equitable to do so. Krejci argues that R.C. 3105.73(B) “aims to curb
frivolous conduct in postdecree proceedings.” Rummelhoff v. Rummelhoff, 2022-Ohio-
1224, 187 N.E.3d 1079, ¶ 49 (1st Dist.). As noted above, however, the main
consideration in awarding fees under R.C. 3105.73(B) is that such an award be equitable
and what is equitable may but does not necessarily encompass frivolous conduct.
Compare R.C. 2323.51(B)(1) which expressly provides that “any party adversely affected
by frivolous conduct may file a motion for an award of court costs, reasonable attorney’s
fees, and other reasonable expenses incurred in connection with [a] civil action.” Krejci
did not seek attorney fees under R.C. 2323.51(B)(1) but, rather, R.C. 3105.73(B).
Accordingly, the standard is what is deemed equitable.
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{¶28} Krejci maintains that the magistrate’s denial of his Motion for Attorney Fees
and Costs on the grounds that “[t]here have been approximately 20 hearings held in the
[present] case on various motions and objections filed by both parties since the Decree
of Dissolution” effectively “gut[s]” the statute and implies that “the more frivolous pleadings
a party files, the less equitable an award of attorney fees would be.” Brief of Plaintiff-
Appellant at 10. On the contrary, the magistrate’s reasoning implies that both parties
have contributed to the protracted nature of the litigation and, therefore, it is equitable that
each party bears its own attorney fees and costs. Such a conclusion falls well within the
lower court’s discretion.
{¶29} Krejci further argues that Jameson should pay attorney fees and “100% of
the Guardian ad Litem’s fees” because she violated the terms of the Shared Parenting
Plan by filing the Motion to Terminate with the trial court rather than seeking mediation.
Brief of Plaintiff-Appellant at 9. The parties’ July 28, 2021 Shared Parenting Plan
contained the following mediation provision:
If either party believes that there has been an inappropriate parenting
behavior(s), that parent shall talk and communicate regarding any
such issue(s). If after talking, communicating, and discussing the
matter(s) they are unable to resolve a major issue regarding the best
interest of the child, the parties shall attempt dispute resolution
through a mediation process. The parents agree that their mediator
shall be John Shryock. The parents further agree that any fees
required by Attorney Shryock, shall be divided equally and shall be
in the nature of child support and therefor not subject to forgiveness
via bankruptcy. Mediation shall be a condition precedent to the filing
of any motion with the court. If either party believes that the
mediation is not in good faith, that party may file a motion to address
said issue. If either party refuses to participate in mediation and/or
unreasonably delays mediation, the condition precedent shall be
deemed satisfied.
{¶30} Jameson counters that Krejci did not avail himself of mediation before
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moving for attorney fees and costs.
{¶31} We still conclude that the decision not to award attorney fees and costs was
a reasonable exercise of the trial court’s discretion. We note that, on January 12, 2022,
Krejci moved the court to dismiss Jameson’s Motion to Terminate the Parenting Plan on
the grounds that she failed to avail herself of mediation as the parties had agreed upon
and, thus, her Motion to Terminate was premature. On January 31, 2022, the magistrate
denied the Motion to Dismiss but ordered “that both parties shall contact the mediator
named in their Plan immediately and schedule mediation.” Jameson testified at the
motion hearing that two mediation sessions were held regarding the medical issues,
although without effect. Thereafter, neither party sought further recourse to mediation.
We recognize that the dismissal of Jameson’s Motion or a stay of the proceedings
pending further attempts at mediation were viable alternatives to hearing the Motion on
merits. However, Krejci presents neither law nor argument that compels the court to
impose fees and costs on Jameson as a sanction for moving the court directly to terminate
the Plan. As noted above, an award of attorney fees and costs is discretionary based on
what the court deems equitable. Here, there was a partial attempt at mediation and a
lack of effort by either party at further mediation. Compare Cottrell v. Cottrell, 12th Dist.
Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 25-29 (finding no abuse of discretion
where the trial court did not hold a party in contempt for filing a motion to modify custody
without first seeking to mediate as required by the shared parenting plan).
{¶32} The first assignment of error is without merit.
{¶33} In the second assignment of error, Krejci argues that Jameson caused him
to incur additional attorney fees, for which she should be responsible, by complaining to
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the child support enforcement agency that he had ceased paying child support. Krejci
maintains that the issue of child support was left undecided when the new Shared
Parenting Plan was adopted in July 2021. At the hearing, Jameson admitted that she
contacted child support sometime thereafter because she was not receiving payments
with the result that child support filed for contempt against Krejci.
{¶34} We find no abuse of discretion. The July 2021 Shared Parenting Plan
provided that “Child Support remains controversial and shall be heard at a hearing with
the date thereof to be determined by further court order.” This statement does not
suspend or vacate the support order that was already in place1, as suggested by Krejci’s
filing of a Motion to Modify and/or Terminate Child Support after the adoption of the new
Plan. There is no evidence of any bad faith or malicious purpose in Jameson contacting
child support beyond that of inquiring about the cessation of support payments despite
the existence of a valid support order.
{¶35} The second assignment of error is without merit.
{¶36} In the third assignment of error, Krejci argues the trial court erred by failing
to order Jameson to pay child support: “The January 6, 2023 child support worksheet
attached to the Magistrate’s February 8, 2023 decision shows that if Appellee paid child
support, she would still have 51.45% of the [parties’] total income.” Brief of Plaintiff-
Appellant at 12.
{¶37} “A court that issues a shared parenting order in accordance with section
3109.04 of the Revised Code shall order an amount of child support to be paid under the
1. The Agreed Judgment Entry adopting the July 2021 Shared Parenting Plan declared that the prior August
2013 Shared Parenting Plan was “vacated and held for naught.” Krejci’s support obligation, however, was
established by a Judgment Entry of June 11, 2013, prior to the adoption of any shared parenting plan.
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child support order that is calculated in accordance with the schedule and with the
worksheet, except that, if that amount would be unjust or inappropriate to the children or
either parent and therefore not in the best interest of the child because of the extraordinary
circumstances of the parents or because of any other factors or criteria set forth in section
3119.23 of the Revised Code, the court may deviate from that amount.” R.C.
3119.24(A)(1). Appropriate factors for consideration when determining whether a
deviation is warranted include “[e]xtended parenting time” and “the disparity in income
between parties or households.” R.C. 3119.23(C) and (E).
{¶38} “Matters involving child support are reviewed under an abuse-of-discretion
standard.” Morrow v. Becker, 138 Ohio St.3d 11, 2013-Ohio-4542, 3 N.E.3d 144, ¶ 9.
“Under an abuse-of-discretion standard, a lower court decision will be reversed for mere
error, but only when the court’s decision is unreasonable, arbitrary, or unconscionable.”
Id.{¶39} Here we find no abuse of discretion. As noted by Jameson, Krejci did not
seek an order of child support against her before the magistrate. Krejci’s Motion to Modify
and/or Terminate Child Support only moved the court “to modify and/or terminate” the
current support order on the grounds that “the parties entered into a modified shared
parenting plan in which each parent received fifty percent (50%) parenting time” and
“Defendant-Mother earns more money than Plaintiff-Father.” Krejci was the child support
obligor. Krejci cites no law for the proposition that the party with the greater income is
ipso facto the obligor under a support order. Hannah v. Hannah, 2016-Ohio-1538, 63
N.E.3d 703, ¶ 16 (8th Dist.) (“[t]here is no provision in the statute that allows the court
upon judicial review of the agency’s child support determination to change the obligor
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designation from one party to another”). In fact, when the original support order was put
in place in June 2013, the disparity between the parties’ incomes was even greater than
when the last support worksheet was completed in January 2023. Under the January
2023 worksheet, Krejci’s support obligation was determined to be $373.72 per month.
The magistrate reasonably determined such an award to be “unjust and inappropriate”
and granted the Motion to Terminate retroactive to July 2021.
{¶40} The preceding also refutes Krejci’s claim that the trial court erred by not
referencing R.C. 3119.23 when ordering a deviation from the amount of child support
owed as determined by the worksheet. Simply put, the court did not order a deviation in
the amount of support. Jameson has never been under an order to pay child support to
Krejci. The purpose of the supporting worksheet at issue was to determine the amount
of support owed by Krejci, not Jameson. The court did not deviate from this amount but,
rather, terminated Krejci’s support obligation altogether. Since Jameson was not under
an order to pay support to Krejci (nor was such an order requested), there was no cause
to consider the factors for deviation and certainly no error in not considering them.
{¶41} The third assignment of error is without merit.
{¶42} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas is affirmed. Costs to be taxed against the appellant.
EUGENE A. LUCCI, P.J.,
ROBERT J. PATTON, J.,
concur.
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