Ho v. Co , 2023 Ohio 3698 ( 2023 )

[Cite as Ho v. Co, 2023-Ohio-3698.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CHIA CHI HO, : APPEAL NO. C-220319
TRIAL NO. DR-2001507
Plaintiff-Appellant, :
:
VS. O P I N I O N.
:
CARLOS CHUA CO, :
Defendant-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: October 11, 2023
Chia Chi Ho, pro se,
Cordell Law LLP and Sarah N. Fox, for Appellee Father,
Essig & Evans LLP and Ross M. Evans, for Guardian Ad Litem for the minor child.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} Plaintiff-appellant Chia Chi Ho (“Mother”) appeals pro se from a
divorce decree, raising various assignments of error relating to issues including
guardian ad litem (“GAL”) fees, purported due process violations, and alleged ex parte
communications. In light of Mother’s failure to develop many of her arguments on
appeal, and in consideration of our review of the record and applicable case law, we
must overrule her first six assignments of error. But because the trial court improperly
found her in contempt for the nonpayment of GAL fees, we sustain her seventh
assignment of error, reversing the trial court’s judgment in part and remanding this
cause with instructions to vacate the June 29, 2020 contempt order.
I.
{¶2} Mother and defendant-appellee Carlos Chua Co (“Father”) were
married in 2005 and share one minor child, C.C., born in 2007. In September 2020,
Mother filed a complaint for divorce. Prior to filing the complaint, Mother filed and
received a civil protection order removing Father from the family home and preventing
any contact between Father and their child. As a result of the order, the magistrate
ordered a full investigation through the court’s Dispute Resolution Department in
October 2020. An agreed entry filed in November 2020 resolved the pending petition
for a civil protection order filed by Mother. Also in November, Father was granted
supervised parenting time.
{¶3} A few weeks after the agreed entry resolved the domestic violence
matter, Father filed an emergency motion for temporary custody and to suspend
Mother’s parenting time, along with a motion for psychological evaluation. Following
a hearing, the trial court granted the emergency motion in December 2020. The trial
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court also appointed a GAL to the case at its own discretion. Throughout the course
of the litigation, Mother was represented by five different attorneys.
{¶4} Prior to the parenting and property trials, the parties negotiated and
signed a shared parenting plan. At trial, however, the court expressed concerns over
whether Mother would cooperate with the plan. The court proceeded to address the
parties’ property in September 2021, but reserved judgment on parenting issues. The
trial court entered a decision on property in October 2021. A parenting trial was held
in March 2022, and the court issued a decision on custody, support, and fees in June
2022.
{¶5} In June 2022, the trial court also issued a contempt order for Mother’s
failure to comply with its order for additional GAL fees—requiring Mother to deposit
an additional $20,000—issued in May 2022. The contempt order sentenced Mother
to 60 days in the Hamilton County Justice Center and fined her $250. The contempt
order was stayed pending this appeal.
{¶6} A decree of divorce was entered in July 2022. The decree encompassed
the decisions issued by the trial court upon the conclusion of the property trial and the
parenting trial. Mother appealed, and this court determined in May 2023 that the trial
court’s order was not yet final due to its failure to address spousal support. On
remand, the trial court made the required changes to finalize the order, and Mother
filed a new notice of appeal, which is before us now.
{¶7} We also note that Mother attempted to appeal the domestic violence
matter as a part of this action as evidenced by the notice of appeal filed July 8, 2022,
which contained the case numbered DV-2001022. But this court’s September 2, 2022
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entry found that any appeal from that case would be untimely, and thus we do not
consider it in this opinion.
II.
{¶8} In her first assignment of error, Mother alleges that the trial court erred
in conducting ex parte communications with the GAL and/or Father’s counsel on
substantive matters throughout the divorce proceedings. According to Mother, three
instances occurred in which the GAL engaged in ex parte communications with the
court, as well as one instance of an ex parte communication between Father’s attorney
and the trial court. In this assignment of error, Mother also claims that the nunc pro
tunc divorce decree judgment was not served properly.
{¶9} Generally, “[a] judge shall not initiate, receive, permit, or consider ex
parte communications[.]” Jud.Cond.R. 2.9(A). But “when circumstances require it,
an ex parte communication for scheduling, administrative, or emergency purposes,
that does not address substantive matters or issues on the merits, is permitted,
provided the judge reasonably believes that no party will gain a procedural,
substantive, or tactical advantage as a result of the ex parte communication.”
Jud.Cond.R. 2.9(A)(1).
{¶10} Mother speculates, without pointing to any supporting evidence in the
record, that the trial judge engaged in improper ex parte communications with the
GAL and Father’s counsel. She states in her brief that she intends to file a motion to
disqualify the trial judge, so perhaps she plans to further pursue this argument at that
time. At this point, her only argument centers around signatures on various orders
that were obtained outside of her presence. But ex parte communications for non-
substantive, administrative purposes, such as obtaining parties’ signatures, is not
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improper. See id. And Mother makes no attempt to establish that the purported ex
parte communications bore on any of the substantive issues of the case or otherwise
provided Father with a procedural or tactical advantage. Our independent review of
the record also does not reveal any inappropriate contact between the trial judge and
Father’s counsel or the GAL.
{¶11} Mother also takes issue with the court’s sua sponte issuance of a nunc
pro tunc order. But this issue is moot in light of this court’s prior decision that the
nunc pro tunc order was a nullity.
{¶12} Finally, Mother claims that she was not served with the divorce decree.
Again, this argument is conclusory and Mother makes no effort to seriously advance
it. From our review of the record, the divorce decree directed the clerk to serve notice
of the judgment to the parties and the docket indicates that the notice of appealable
judgment was served upon all parties, notifying Mother of the judgment of divorce.
And regardless, it is well-established in Ohio that “[t]he failure of the clerk to serve
notice does not affect the validity of the judgment[.]” Civ.R. 58(B).
{¶13} We overrule Mother’s first assignment of error.
III.
{¶14} In her second assignment of error, Mother maintains that the trial court
issued various false statements. Specifically, she takes issue with a number of
statements made by the GAL regarding Mother’s mental health conditions that the
court included in its June 2022 order, as well as the trial court’s granting of a motion
in limine appointing a court-ordered psychologist.
{¶15} Mother cites to provisions of the Ohio Professional Conduct Rules that
indicate that it is professional misconduct for lawyers to engage in conduct involving
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OHIO FIRST DISTRICT COURT OF APPEALS
dishonesty and that a guardian ad litem must maintain independence, objectivity, and
fairness. See Prof.Cond.R. 3.3(a)(1) and 8.4(d).
{¶16} However, Mother failed to include the relevant transcripts in the record
that would substantiate her concerns, despite having been requested to do so.
Therefore, we must presume regularity in the proceedings. See State v. Gonzales, 151
Ohio App.3d 160, 2002-Ohio-4937, 783 N.E.2d 903, ¶ 21 (1st Dist.) (“When the
appellant fails to ensure that the necessary exhibits or transcripts are transmitted to
the appellate court, this court has nothing to pass on and must presume regularity in
the proceedings in the trial court.”). And the report that Mother references was
stricken from the record, so we cannot consider it. See State v. Wilson, 2d Dist. Clark
No. 2018-CA-2, 2020-Ohio-2962, ¶ 29 (“[I]n reviewing the trial court’s judgment, we
are limited to the record before the trial court.”). Moreover, Mother does not attempt
to explain how the identified statements prejudiced her or otherwise affected the
proceedings. Accordingly, Mother cannot prevail on this assignment of error, and we
overrule it.
IV.
{¶17} Third, Mother goes on to challenge the GAL fees ordered in this case.
Her substantive arguments under this assignment of error focus on the appointment
of the GAL and the GAL’s fees.
{¶18} First, Mother insists that the trial court failed to comply with the
requirements of Hamilton County Court of Domestic Relations Loc.R. 10.5, thereby
abusing its discretion, because the GAL sought payment at a rate of $350/hour. “A
trial court’s appointment of a guardian ad litem and award of fees must be upheld
absent an abuse of discretion.” Swanson v. Schoonover, 8th Dist. Cuyahoga Nos.
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OHIO FIRST DISTRICT COURT OF APPEALS
95213, 95517 and 95570, 2011-Ohio-2264, ¶ 23, citing Gabriel v. Gabriel, 6th Dist.
Lucas No. L-08-1303, 2009-Ohio-1814, ¶ 15.
{¶19} Mother correctly cites the current version of the Hamilton County Court
of Domestic Relations Loc.R. 10.5, which states that GAL “compensation shall be at
the rate of $175.00 per hour for billable time unless otherwise agreed. If the hourly
rate is higher than $175.00, the parties * * * shall agree to the rate prior to the GAL
commencing work.” However, the rule was revised in September 2021 to include the
provision that the parties and the GAL must agree to a different rate prior to the GAL
commencing work. At the time of the appointment of the GAL, in December 2020,
former Loc.R. 10.5 required a $1750 deposit but did not require the parties to agree to
a rate before the GAL commenced his/her duties. Rather, it stated: “Compensation
shall be at the rate of one hundred and seventy-five dollars ($175.00) per hour for both
in-court and out-of-court billable time unless otherwise agreed.” Former Loc.R.
10.5(A).
{¶20} At the time the GAL was appointed, then, the parties were required to
“otherwise agree[]” to a rate that deviates from $175/hour. Here, Mother did just that.
In the months following his appointment, the GAL issued multiple invoices that
contained his hourly rate. Mother paid $15,000 in GAL fees in March 2021, without
objection. Her payment of the fees, in addition to her failure to object to the fees for
over four months following the issuance of the first order for payment of GAL fees,
indicates, at a minimum, her implicit agreement to the GAL’s rate of $350/hour.
Notably, Mother was represented by counsel at the time.
{¶21} While we agree that the total fees accrued were extremely high, and
cause us grave concern, as a legal matter, the mandates of former Loc.R. 10.5 were not
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OHIO FIRST DISTRICT COURT OF APPEALS
violated due to Mother’s acceptance of the GAL’s rate. And Mother fails to point us
toward any authority indicating that any actual legal error occurred or that the trial
court otherwise abused its discretion in this matter.
{¶22} Second, Mother contends that the trial court erred in ordering payment
of GAL fees without receiving or reviewing an itemized statement. But attached to the
court orders for payment of GAL fees are itemized statements, indicating that the trial
court did, in fact, receive and review itemized statements of the GAL fees. And in these
orders, the trial court noted that it found the fees to be reasonable. Within this second
issue, Mother tosses out a number of unrelated claims. But she fails to explain or make
an argument for these claims beyond conclusory statements that these matters
involved errors. Nor does she cite to any authority in support of her claims. We
therefore disregard these issues. See App.R. 16(A)(7); App.R. 12(A)(2).
{¶23} Third, Mother argues that the trial court erred in refusing to hold
hearings on her motions contesting the GAL fees. Again, Mother fails to cite to any
authority requiring a trial court to convene a hearing before ruling on a motion in
opposition to GAL fees besides claiming that the local rules require it. And there are
no requirements in the local rules that a hearing be held on an objection to GAL fees.
See Loc.R. 10.5. Based on our review of the applicable law, Mother has failed to
establish that a hearing was required on this matter.
{¶24} The fourth issue raised by Mother touches on various matters relating
to the payment and reasonableness of GAL fees. She does not seriously advance any
of these arguments, but as we understand them, our independent review of the record
does not indicate any instances of reversible error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} Fifth, Mother argues that the trial court erred in denying her motion to
discharge the GAL. Once again, she raises a number of issues without substantiation.
She again raises her concerns with the GAL rates, alleged ex parte communications,
and the lack of hearings on her motions in opposition to GAL fees, all of which we
address above. The only new issue that she features here concerns the trial court’s
denial of her motion to discharge the GAL. But she fails to present any argument as
to why she believes the trial court erred. And from our review of the record, the trial
court did not abuse its discretion. The trial court noted that it intended to discharge
the GAL once the case was concluded, as is standard practice. See Loc.R. 10.4. Mother
does not attempt to formulate an argument as to how this was in error.
{¶26} Sixth and finally, Mother contends that the trial court erred in allowing
the GAL to write and submit the court order for payment of GAL fees. But besides
noting this issue in the introduction to this assignment of error, she fails to raise it
again or develop it. No analysis, record citations, or authorities are contained in the
brief relating to this issue, so we are unable to conduct a review on appeal.
{¶27} We overrule Mother’s third assignment of error.
V.
{¶28} In her fourth assignment of error, Mother contends that the trial court
erred in failing to address premarital assets, gifts, and delayed maintenance that were
not disputed at trial.
{¶29} R.C. 3105.171(B) mandates that “the court shall * * * determine what
constitutes marital property and what constitutes separate property” in divorce
proceedings. This mandate requires that the trial court “value and divide all property
in a divorce.” Smoyer v. Smoyer, 10th Dist. Franklin No. 16AP-365, 2019-Ohio-3461,
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OHIO FIRST DISTRICT COURT OF APPEALS
¶ 30, quoting Hackman v. Hackman, 10th Dist. Franklin No. 08AP-516, 2009-Ohio-
820, ¶ 23.
{¶30} Besides generally alleging that certain premarital assets, gifts, and
delayed maintenance were omitted from the court order distributing the parties’
property, Mother fails to identify any specific items that she believes were omitted.
Rather, she points us towards page ranges in the trial transcript that discuss various
assets, expenses, and gifts.
{¶31} Mother’s failure to identify any specific items that were omitted from
the court order limits our ability to review this assignment of error. But from our
independent review of the identified portions of the transcript, we are unable to
identify any assets, maintenance, or gifts that were improperly omitted from the trial
court’s order distributing the parties’ property. We therefore overrule this assignment
of error.
VI.
{¶32} In the fifth assignment of error, Mother argues that her constitutional
due process rights were violated when the trial court struck certain matters without
affording her a hearing or providing an explanation for why the matters were stricken.
Mother again presents a number of other issues in this assignment of error.
{¶33} First, Mother contends that the trial court abused its discretion when it
struck various matters from the record. Civ.R. 7(B)(2) permits the court to issue
orders “without oral hearing” unless a hearing is otherwise required. Mother presents
no authority requiring a hearing on the matters she raises. Moreover, she makes no
attempt to argue that she was prejudiced. And our review of the record does not reveal
any abuse of discretion on the part of the trial court in striking the identified filings.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} Second, Mother argues that the trial court erred in providing the shared
parenting plan to Father’s and Mother’s employers. She argues that “providing false
information to [each party’s] employer does not comply with the law.” But from our
review of the record, the factual findings contained in the shared parenting plan
comport with the facts in the record. And our review is limited by the fact that Mother
fails to identify which information in the shared parenting plan she believes to be
“false.”
{¶35} Third, Mother alleges that the trial court erred in not including a
parenting time schedule in its final decree. But the final divorce decree does address
this issue. With respect to parenting time, the order states: “All parenting time of
Mother’s shall be at the discretion of [C.C.] and Father. [C.C.] shall be able to select
the time spent with Mother in order for him to organize his own schedule.” The order
goes on to expound on this provision, and also allows Mother to have vacation and
extended time with C.C. if C.C. and Father agree. Mother does not acknowledge this
or attempt to argue that the trial court erred in so ordering.
{¶36} Fourth and finally, Mother maintains that the trial court erred in
granting additional GAL fees after the GAL filed a motion to strike the shared
parenting plan. She argues that he used the judicial system to collect clearly excessive
fees. But we addressed the GAL fees in the third assignment of error, so this claim is
redundant.
{¶37} We overrule Mother’s fifth assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
VII.
{¶38} In her sixth assignment of error, Mother contends that the trial court
violated her due process rights by denying discovery and failing to rule on certain
motions. In this assignment of error, she raises five issues.
{¶39} First, Mother argues, once her domestic violence case was transferred
to another trial judge, the trial court erred in failing to rule on a motion related to the
case after it was transferred. However, this court ordered that any appeals related to
the domestic violence case (DV-2002022) would be untimely, foreclosing Mother’s
ability to challenge that case on appeal.
{¶40} Second, Mother takes issue with the trial court’s denial of the subpoena
duces tecum filed by Mother to conduct discovery into the GAL’s billing practices
without first making an in-camera inspection of the files sought.
{¶41} A trial court has broad discretion in discovery matters, including
whether to grant or deny a motion to quash a subpoena, and its decision will not be
reversed on appeal absent an abuse of discretion. See Kaplan v. Tuennerman-Kaplan,
9th Dist. Wayne No. 11CA0011, 2012-Ohio-303, ¶ 10, citing State ex rel. Citizens for
Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-
5542, 876 N.E.2d 913, ¶ 18. Mother points us towards the Twelfth District’s decision
in Hogan v. Hogan, 12th Dist. Butler Nos. CA2002-09-216 and CA2002-09-225,
2003-Ohio-4747, ¶ 29, which held: “We agree that a trial court has discretion to grant
a motion to quash a subpoena for a guardian ad litem’s files if the court finds that it
would not be within the children’s best interest to allow disclosure of the files. But in
order to make such a finding, the trial court must first make an in camera inspection
of the files sought.” However, Hogan does not cite to any authority in setting forth
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OHIO FIRST DISTRICT COURT OF APPEALS
this mandate, and we are unable to ascertain any statutory source or binding case law
requiring an in-camera inspection under these circumstances.
{¶42} It is recognized in Ohio that refusing to grant discovery from a GAL
during custody cases to protect the child’s best interest is not an abuse of discretion.
See In re J.L.R., 4th Dist. Washington No. 08CA17, 2009-Ohio-5812, ¶ 43; Hogan at
¶ 29. Here, the trial court denied Mother’s discovery request to review the GAL’s
billing practices, explaining that it did so to protect the relationship between the GAL
and C.C. In light of the trial court’s appropriate rationale for granting the motion to
quash as well as the court’s inherent power to regulate discovery pursuant to Civ.R.
26(C), we conclude that the trial court did not abuse its discretion in this matter.
{¶43} As to Mother’s third argument that the trial court erred in not allowing
access to the minor child’s medical records, she presents this as an issue in the
introduction to the assignment of error but fails to addresses it in the substance of the
brief. With no argument, law, record citations, or any other sort of analysis on this
issue, it is impossible to conduct a review on appeal.
{¶44} Mother’s fourth argument, relating to the GAL’s motion for a protective
order, is similarly conclusory. She argues that the motion did not comply with the
requirements of R.C. 3109.051 and includes a quotation to a case summarizing the text
of the statutory provision. However, she does not make any argument supporting the
issue. She fails to explain how the motion did not comply with statutory requirements
and she did not otherwise explain her position. From our independent review of the
record, insofar as we understand her argument, we do not see any indication of
reversible error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶45} Fifth and finally, Mother takes issue with the fact that the trial court did
not rule on a motion filed by Mother, and also that it issued various orders without
holding hearings on the matters.
{¶46} Within this issue, Mother first argues that the court erred in failing to
issue a decision or hold a hearing on her motion for contempt regarding parenting
time.
{¶47} But “it is well-established that when a trial court fails to rule on a
motion, [the appellate] court will presume the motion was overruled.” Sparks v.
Sparks, 12th Dist. Warren No. CA2015-10-095, 2016-Ohio-2896, ¶ 12, citing Reynolds
v. Reynolds, 12th Dist. Butler No. CA94-08-162, 1995 Ohio App. LEXIS 2401, 6 (June
12, 1995). Assuming the trial court’s failure to rule on the motion deems the motion
overruled, Ohio law also provides, “[A] trial court can reasonably exercise its
discretion to refrain from holding a hearing on a motion for contempt that the court
intends to deny. * * * [A]nd the movant cannot appeal on grounds of failure to hold a
hearing without showing prejudice in that the motion would have been granted[.]”
Dyer v. Gomez, 7th Dist. Noble No. 21 NO 0484, 2022-Ohio-1127, ¶ 58, citing
Anderson v. Fleagane, 7th Dist. Belmont No. 21 BE 0020, 2022-Ohio-1120, ¶ 59-60.
Mother does not make any argument that her motion would have been granted or
otherwise attempt to establish prejudice. Moreover, as Father notes, she never filed a
request for a hearing or requested the trial court to address it at the final hearing in
the divorce action. Mother’s constitutional rights were not violated by the trial court’s
failure to rule on this motion or hold a hearing to address it.
{¶48} Next, Mother takes issue with the trial court’s December 16, 2020 order
that the court issued without first holding a hearing. According to her, this deprived
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OHIO FIRST DISTRICT COURT OF APPEALS
her of fundamental rights to notice and a hearing and does not comport with due
process requirements.
{¶49} The order to which Mother refers granted an emergency motion filed by
the GAL and issued temporary orders regarding parenting time and supervised
contact. As far as the record shows, Mother signed the agreed entry regarding the
temporary orders that same day and there is no evidence that she requested a hearing
or otherwise objected to the order. In light of Mother’s signature on the agreed entry
regarding the orders, as well as her failure to make any concrete argument or cite to
any law to support her point, we cannot say that her constitutional rights were
violated.
{¶50} Finally, Mother contends that the trial court erred in granting the GAL’s
motion to maintain the temporary custody schedule without a hearing. Again,
according to Mother, this deprived her of fundamental rights to notice and a hearing
and does not comply with due process requirements.
{¶51} On August 18, 2021, the GAL filed a motion to maintain the temporary
schedule, which the court granted without a hearing on August 23. Again, however,
Mother points us toward no case law that indicates that failure to hold a hearing on a
motion to maintain a temporary custody schedule contravenes her constitutional
rights. In fact, in stark opposition to her argument, pursuant to R.C. 3109.043, “In
any proceeding pertaining to the allocation of parental rights and responsibilities for
the care of a child, * * * the court, without oral hearing and for good cause shown, may
make a temporary order regarding the allocation of parental rights and responsibilities
for the care of the child while the action is pending.” Nothing in the record reflects
that Mother opposed the motion, requested a hearing on the motion, or otherwise
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OHIO FIRST DISTRICT COURT OF APPEALS
objected to the trial court’s decision at the trial level. And there is no evidence in the
record that Mother did not have notice of this order, as she claims. A full evidentiary
hearing was conducted before the trial court entered its full custody order, so again,
Mother’s constitutional rights were not violated in this instance.
{¶52} We therefore overrule Mother’s sixth assignment of error.
VIII.
{¶53} In her seventh and final assignment of error, Mother insists that the trial
court erred in using its powers of contempt to enforce payment of GAL fees, arguing
under Burke v. Burke (In re Pappas), 8th Dist. Cuyahoga Nos. 101059 and 101060,
2014-Ohio-5279, ¶ 1, that a court cannot use its powers of contempt to compel the
payment of GAL fees. Notwithstanding the fact that Mother had already paid
thousands of dollars in GAL fees, the trial court’s June 29, 2022 order found her failure
to pay $20,000 in additional GAL fees warranted a contempt finding and a 60-day jail
sentence.
{¶54} Section 15, Article I, of the Ohio Constitution prohibits imprisonment
for debt in civil actions. “The duty to pay court costs is a civil obligation arising from
an implied contract [with the court], and as such, it is a debt within the purview of
Section 15, Article I.” Raleigh v. Hardy, 5th Dist. Licking No. 08 CA 0140, 2009-Ohio-
4829, ¶ 23, citing Strattman v. Studt, 20 Ohio St.2d 95, 253 N.E.2d 749 (1969). A
court cannot use contempt to “indirectly impose[] a jail sentence for nonpayment of
court costs.” State v. Ellis, 2d Dist. Montgomery No. 22189, 2008-Ohio-2719, ¶ 22.
This point begs the question – are GAL fees court costs?
{¶55} This court already answered that question in the juvenile court context,
finding GAL fees to constitute court costs. See In re Bailey, 1st Dist. Hamilton No. C-
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060700, 2007-Ohio-4192, ¶ 17. We explained, “The authority to levy GAL fees against
a party in a private custody action is found in Juv.R. 4(G).” Id. at ¶ 16. Juv.R. 4(G), in
turn, provides: “[t]he court may fix compensation for the services of appointed counsel
and guardians ad litem, tax the same as part of the costs and assess them against the
child, the child’s parents, custodian, or other person in loco parentis of such child.” If
the juvenile court assesses GAL fees, “it is directed to tax the fees as part of the costs
of the proceedings.” In re Bailey at ¶ 17. Because Juv.R. 4(G) denotes GAL fees as
costs, the obligation to pay GAL fees represents “a civil obligation for which a party
may not be incarcerated.” Id. Thus, this court found “the jail sentence for contempt
[for the nonpayment of GAL fees] was improper.” Id. at ¶ 18.
{¶56} In domestic relations proceedings concerning divorce and separation,
Civ.R. 75(B)(2) provides that “[w]hen it is essential to protect the interests of a child,
the court may join the child of the parties as a party defendant and appoint a guardian
ad litem and legal counsel, if necessary, for the child and tax the costs.” Joinder of the
child as a party to the dispute is not mandatory for the appointment of a GAL under
Civ.R. 75(B)(2). See In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146,
¶ 44 (finding the appointment of a GAL under Civ.R. 75 “does not make a child a
proper party” in such proceedings). Here, the GAL participated as a party to the
litigation, engaging in extensive litigation conduct over a prolonged period of time. In
light of this unique record, we find that the GAL appointment in this particular case
fell within the scope of Civ.R. 75(B)(2).
{¶57} Just as Juv.R. 4(G) denominates GAL fees as court costs for juvenile
proceedings, Civ.R. 75(B)(2) does so as well in domestic relations proceedings.
Accordingly, the obligation to pay GAL fees under Civ.R. 75(B) represents a civil
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OHIO FIRST DISTRICT COURT OF APPEALS
obligation for which a party may not be incarcerated. We also note that neither
appellee here seriously defends the trial court’s contempt order, nor do they offer any
specific basis to uphold it. Accordingly, on this record, the trial court improperly used
its contempt powers to enforce Mother’s payment of the additional $20,000 in GAL
fees.
{¶58} We therefore sustain Mother’s seventh assignment of error.
* * *
{¶59} In light of the foregoing analysis, we sustain Mother’s seventh
assignment of error, reversing the trial court’s judgment in part and remanding this
cause with instructions to the trial court to vacate the contempt order. We affirm the
trial court’s judgment in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
WINKLER, J., concurs.
KINSLEY, J., concurs in part and dissents in part.
KINSLEY, J., concurring in part and dissenting in part.
{¶60} I concur with the majority’s resolution of all assignments of error in this
case except for the third assignment of error which challenges the GAL’s fees. Having
carefully reviewed the record in this regard, I would sustain mother’s third assignment
of error in part and therefore dissent from this portion of the majority’s decision.
{¶61} During the 20-month period from December 2020, when the GAL was
first appointed by the court, to August 2022, when the case essentially concluded at
the trial court level, the trial court ordered the parties to pay $155,853.53 to the GAL
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OHIO FIRST DISTRICT COURT OF APPEALS
for his services.1 The majority is correct in that Mother’s brief is on the sparse side in
terms of both detail and authority as to why the trial court erred in approving such
exorbitant fees. But the amount alone makes my jaw drop, and I cannot condone the
trial court’s approval of such excessive fees in this case.
{¶62} Perhaps given how costly the proceedings below wound up being,
Mother represented herself in this appeal. While pro se litigants are held to the same
standards as parties who have attorneys, courts also entertain all cognizable
arguments that unrepresented litigants present “in the interest of fairness and justice.”
Fontain v. Sandhu, 1st Dist. Hamilton No. C-200011, 2021-Ohio-2750, ¶ 13. After
reading Mother’s brief, it is clear to me that she takes issue with the overall amount of
the GAL’s bills and with the process by which the trial court approved each set of bills
the GAL submitted. I have therefore reviewed these issues for possible error.
{¶63} To begin, I note that neither Mother nor Father sought the appointment
of a GAL in this case. Rather, the trial court appointed the GAL sua sponte when the
parties’ efforts to resolve the question of custody of their minor son broke down. Thus,
the parties did not seek to incur GAL fees of their own volition, a factor that makes the
total amount of the fees all the more shocking.
1 A motion filed before this court, to which the GAL did not respond, suggests he may also be billing
the parents for his work on this appeal, meaning that the total amount he has billed for this matter
may well be in excess of the $155,853.53 the trial court already approved. While not pending before
us, any motion for payment of GAL fees for this appeal would be of dubious merit. For one thing,
by its original terms, the GAL’s appointment terminated upon the filing of the final order in the
case by the trial court, and the GAL is therefore no longer appointed. For another, the GAL
appeared before this Court solely to defend his heightened hourly rate and the overall sum of his
bills in the trial court, issues which relate solely to his personal financial stake in the outcome of
this matter and not the best interests of the child in question. See Sup.R. 48.03(D) (describing
responsibilities of GAL, which do not include responding to challenges to GAL’s fees on appeal).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶64} Despite that fact, I do not doubt that the GAL provided beneficial
services to both the parents and their son and, as a result, he is entitled to fair
compensation for those services. However, a number of statutes, rules, and policies
govern what is fair and carefully circumscribe the trial court’s authority to authorize
fees for appointments such as this one. In my opinion, the trial court did not comply
with those limitations in a number of significant respects, and I would award Mother
relief in part based on a correct application of the rules that govern GAL fees in divorce
cases.
1. The trial court should not have approved block-billed time entries.
{¶65} The Ohio Supreme Court has established a rigid rule against block-
billing—or the practice of combining a number of different legal tasks into a single
billable entry. See State ex rel. Harris v. Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109,
126 N.E.3d 1068, ¶ 6-7. This is so because combining multiple tasks into a single entry
complicates the process of determining whether the time spent on a particular activity
is reasonable. Id. at ¶ 6. As a result, the Ohio Supreme Court has warned that it will
not approve attorney fees applications that contain block-billed entries and will
potentially deny all fees on the basis of this mistake. Id. at ¶ 7.
{¶66} Despite this clear guidance, the trial court approved a significant
number of block-billed entries on the GAL’s bills without explanation or justification.
{¶67} At the very least, this error should have become apparent to the trial
court in July of 2021, when Mother began challenging the GAL’s fees and asking the
trial court to scrutinize them. At that time, the GAL submitted his invoices from
December of 2020 through the end of June 2021 to the court. Those invoices
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OHIO FIRST DISTRICT COURT OF APPEALS
contained a significant number of block-billed time entries that should not have been
approved for payment under the Rubino rule.
{¶68} The following chart itemizes the block-billed services exactly as they
appeared on the invoices the GAL submitted to the court in July of 2021. They are
modified only to conceal the name of parties’ minor child.
{¶69} In many cases, the tasks are not separated by punctuation or any
obvious line breaks, making it difficult at times to even discern when one task stops
and another begins. And that is a separate problem with the bills. People who are
paying into the six-figures for services are entitled under the rules to know what they
are paying for. See Sup.R. 48.03(H)(1) (requiring GALs to keep accurate time
records); (H)(2) (requiring GALs to provide monthly invoices to the parties); (H)(3)
(requiring GALs to submit itemized monthly invoices to the court). But this GAL’s
bills contain many generic time entries like “investigation” or “emails to counsel.” I
can relate to Mother’s desire for additional explanation about where her money is
going.
DATE SERVICES TIME
12/3/2020 Review of Pleadings phone call w/Children’s Services 1.00
communications to Counsel of record
12/7/2020 Review of pleadings and multiple Documents phone call 4.25
with multiple professionals, Counsel and parties
Investigation
12/9/2020 Meet with Carlos Investigation Review Documents e- 3.50
mails with Therapists Observe Visitation and meet with
C. at Children’s Home
12/11/2020 Investigation Numerous communications and meetings 4.00
with Professionals
12/14/2020 Telephone call with Cindy Chiaro and Nicole Schilds e- 1.25
mails with C.
12/16/2020 Home Visit numerous phone call w/Counsel and Court 7.50
Review and Revise Entry e-mails with Professionals
Revisions and edits to entry. phone call w/ Court
1/5/2021 Telephone call with numerous professionals and Counsel 2.50
numerous communications from C.
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OHIO FIRST DISTRICT COURT OF APPEALS
1/6/2021 Conference with Judge phone call w/ Schild email to 1.50
professionals
2/1/2021 Attendance at Phone Conference with Judge emails with 0.75
Carlos
2/11/2021 Meet with Carlos email to Chiachi and Counsel e-mails 1.25
with Therapists
2/23/2021 E-mails from/to All professionals and parties phone call 1.75
with Schild and Counsel and Haley
2/24/2021 E-mails from/to Parties and Counsel review of 1.50
recordings
2/25/2021 E-mails from/to everyone. Multitude and conference 2.00
with Court
3/1/2021 E-mails from/to Parties and Counsel phone call with 3.75
Counsel and numerous texts with parties from 2-28 and
this date. Zoom Meeting with Karl and Mom, FaceTime
with C. and numerous communications
3/3/2021 E-mails from/to Chiachi, Dr. Connor’s Office and 1.50
Counsel e-mail to settlement discussions with up
Assessment with CCPC. Phone call with Schild
3/24/2021 Phone Call w/ Brenda Patton Numerous e-mails with 1.00
Counsel
Phone Conference with Patton and e-mails to Counsel2 1.50
3/29/2021 Drafting of Motion to Modify Temporary Orders 2.00
Numerous communications from and to Counsel and
Patton phone call w/ Chiachi
3/30/2021 E-mails from/to Karl and Patton Text messages and e- 1.25
mails from C. and to Chiachi
4/1/2021 E-mails from/to Counsel and texts with C. phone call 1.25
w/Tepe
4/7/2021 Review of Court Order on Motion e-mails to parties, 1.40
Counsel and communication with C.
4/9/2021 Communicate (with client) and multiples e-mails to 0.75
Counsel
4/12/2021 E-mails from/to C. over the weekend. Phone call w/ 1.75
Jennifer Szenghi multiple e-mails from Carlos and to
Counsel
2 These two entries for the same date appear to document the same tasks, but are for different
amounts of time. It is unclear if the time entries are redundant of one another, such that one should
be stricken outright, or if the GAL had two separate phone conversations with Brenda Patton on
March 24, 2021 and billed separate sets of emails with counsel on that same day. The fact that the
calls are not separately logged complicates our determination of whether it is the former or the
latter. If we knew, for instance, that the GAL’s phone call with Patton lasted 0.5 hours in both
entries, it would seem as though the entries were redundant. But if the GAL itemized one phone
call lasting 0.5 hours and one phone call lasting 0.2 hours, we would better understand that he
spoke with Patton twice on the same day. As it is, it seems that the GAL billed the same tasks twice
and that his fees should be discounted accordingly. This is the type of review the trial could should
have undertaken and did not.
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OHIO FIRST DISTRICT COURT OF APPEALS
4/21/2021 E-mails from/to Mental Health Professionals phone call 1.50
w/ Therapist
4/23/2021 Meet with Therapists Investigation Notes to file and e- 2.50
mails to Connors
4/27/2021 Telephone call with Dr. Connor e-mail to Professionals 2.75
Draft Order phone call w/ Counsel
4/28/2021 E-mails from/to Counsel phone call w/ Counsel e-mails 1.75
from Carlos
5/3/2021 Review of Motions filed by Tepe phone call w/Fox revise 1.25
letter to Boat review Substitution of Counsel e-mails
with Fox
5/4/2021 Appear for/attend Court Hearing phone call from and 3.75
w/ Tepe review and prepare for hearing Numerous
communications wit [sic] Parties and C. after hours
dealing with issues
5/5/2021 Review of File pleadings and Entries e-mail to all 3.00
professionals.
5/10/2021 Review/analyze Judge’s Decision e-mail to Connors and 1.50
Counsel Conference with Schild
5/12/2021 Meet with C. and Nicole e-mail to Chia Chi’s therapists 1.25
5/19/2021 Correspondence to and from Ward, Counsel and 3.50
Therapists over last 5 days.
5/20/2021 Telephone call with Dr. Barbara Boat and noes [sic] to 3.00
file. Phone call w/ C. Multiple lengthy text messages
phone call with Chia Chi.
5/24/2021 Investigation and Schduling [sic] of all Evaluation 2.25
Appointments
5/31/2021 Investigation and numerous communications including 6.50
reviewing filings and e-mails as well as phone call w/
numerous professionls [sic] from 5-27 through 5-31
6/1/2021 Attendance at Court Pre-Trial Report e-mails with Schild 1.75
and Connor’s Office Meet w/ C.
6/2/2021 E-mails from/to Counsel andnumerous [sic] 0.50
communications with C.
6/3/2021 Attendance at Phone Conference with Court. Numerous 1.50
e-mails from and to Cousel [sic] Review Documents to
be sent to Connors Meet w/ C.
6/7/2021 Telephone call with Schild Review e-mails phone call to 0.75
Turpin Counselor
6/8/2021 Telephone call with Kathy Roberts and Nancy 2.75
Aniskovich e-mail to professionals and Connor’s office
Draft Motin [sic] for Deposit of Fees. Numerous e-mails
re; [sic] Transportation for Evaluation
6/14/2021 Attendance at Evaluation Session with C. Review 3.25
Research on Motion to Quash several e-mails with
records department of UC
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OHIO FIRST DISTRICT COURT OF APPEALS
6/15/2021 Correspondence from and to C. Review research on 1.25
Protective orders Review Documents from UC
6/16/2021 E-mails from/to Counsel texts from and to C. 0.75
6/21/2021 Attendance at Evaluation Session with C. conf w/ Pam 3.75
while parties in Session
6/23/2021 E-mails from/to Chia Chi and phone call w/ Pam 0.75
Schwerz e-mail to and frm [sic] Schild and to Counsel
6/25/2021 Review documents filed by Tepe and text messages with 0.50
C.
6/30/2021 Review of Court fle [sic] text to C. re: Dr. Connor 0.25
appointment
{¶70} This totals 101.15 hours, representing $37,931.25 of GAL time, all of
which the trial court should not have approved because it was block-billed. See
Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.3d 1068, at ¶ 6-7.
{¶64} Looking at the GAL’s motion for additional fees filed on October 4, 2021,
his September 2021 invoice equally contains block-billed time entries that violate the
Ohio Supreme Court’s directive. There are 17.25 hours of block-billed time in that
invoice, representing $6,468.75 in fees that should be discounted.
{¶65} And in the GAL’s March 2022 motion for additional fees, the attached
invoice from March 2022 contains an additional 11.8 block-billed hours representing
$4,425 in fees that should be cancelled.
{¶66} In total, the trial court therefore approved $48,825 in block-billed time
that should have been excluded under the Ohio Supreme Court’s decision in Rubino.3
I find this to be error and would sustain Mother’s third assignment of error with
respect to these fees.
2. The trial court should not have approved fees for time spent on tasks
that fell outside the scope of the GAL’s defined role.
3 I note that not all of the GAL’s invoices are available in the appellate record, and the trial court
appears to have approved fees for the GAL in excess of the invoices that were submitted with the
motions for additional fees.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶67} A further problem with the GAL’s fees in this case is that he charged the
parties for work that fell outside the scope of his appointment. That appointment was
pursuant to Sup.R. 48.03(D), which defines the role and responsibilities of guardians
ad litem in domestic relations cases. Pursuant to that rule, GALs are to:
(1) Become informed about the facts of the case and contact all relevant
persons;
(2) Observe the child with each parent, foster parent, guardian or physical
custodian;
(3) Interview the child, if age and developmentally appropriate, where no
parent, foster parent, guardian, or physical custodian is present;
(4) Visit the child at the residence or proposed residence of the child in
accordance with any standards established by the court;
(5) Ascertain the wishes and concerns of the child;
(6) Interview the parties, foster parents, guardians, physical custodian, and
other significant individuals who may have relevant knowledge regarding the
issues of the case. The guardian ad litem may require each individual to be
interviewed without the presence of others. Upon request of the individual, the
attorney for the individual may be present.
(7) Interview relevant school personnel, medical and mental health providers,
child protective services workers, and court personnel and obtain copies of
relevant records;
(8) Review pleadings and other relevant court documents in the case;
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OHIO FIRST DISTRICT COURT OF APPEALS
(9) Obtain and review relevant criminal, civil, educational, mental health,
medical, and administrative records pertaining to the child and, if appropriate,
the family of the child or other parties in the case;
(10) Request that the court order psychological evaluations, mental health/or
substance abuse assessments, or other evaluations or tests of the parties as the
guardian ad litem deems necessary or helpful to the court;
(11) Review any necessary information and interview other persons as
necessary to make an informed recommendation regarding the best interest of
the child.
{¶68} The trial court’s order appointing the GAL in this case vested him with
four specific responsibilities: 1) review records pertaining to the child and his family;
2) interview school personnel, medical and mental health professionals, and relevant
court workers and obtain records from these sources; 3) review relevant pleadings in
the case; and 4) perform any other necessary investigation to make a recommendation
about the child’s best interests.
{¶69} The GAL’s work in this case, however, exceeded those mandates in some
significant respects. For example, the GAL spent approximately 2.25 hours scheduling
appointments for the child, something a parent, not a GAL, typically does.4 The GAL
also drove the child to appointments with therapists and waited for him there on two
occasions, spending 6.5 hours doing so. While on one of these occasions the GAL
interviewed someone at the therapist’s office, the fact the entry is block-billed
complicates the process of understanding exactly how much time he spent in the car
4 It is difficult to ascertain exactly how much time the GAL spent making appointments, because
the task is contained in a block-billed time entry.
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OHIO FIRST DISTRICT COURT OF APPEALS
versus how much time he spent in an interview. In any event, at least some of the time
he billed was for transporting the child to and from appointments.
{¶70} These tasks fall outside of the GAL’s defined role. While the GAL is to
be commended for being a supportive adult in the life of a young person during his
parents’ divorce, I do not read the law to enable him to charge the parents for making
appointments and transporting a child. To the contrary, the GAL’s role is to be an
investigatory one, focused on gathering information and making a recommendation
to the court. See Sup.R. 48.03(D). I therefore would discount the entries listed in the
chart above that fall outside of the GAL’s proscribed role for that additional reason as
well.
3. The trial court did not assess the parties’ ability to pay prior to
approving the GAL fees as required by Sup.R. 48.02(H)(1).
{¶71} Turning now to the overall amount of the fee award, I note several
technical problems with the trial court’s process. Notably, Sup.R. 48.02(H)(1)
requires the trial court to consider the parties’ ability to pay before a deposit for GAL
fees and allows the trial court to reconsider that decision at any point throughout the
proceedings.
{¶72} There is no evidence in this case that the trial court considered the
parties’ ability to pay $155,835.53 to the GAL prior to ordering that amount, although
there is evidence in the record that Mother may have struggled to make her
assessments. (She paid $100 at one point, and $375 at one point, even though she
owed thousands upon thousands of dollars.) While the parties in this case are far from
living in poverty, their financial means are not endless. No one’s are.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶73} To be sure, the rule that requires consideration of a party’s financial
wherewithal exists for good reason. In fact, very few people can afford to pay so much
money without serious consequences to their financial health, stability, and decision-
making. That the parties could be held in contempt and jailed for not paying makes
an assessment of their ability to pay up front all the more paramount. See Hamilton
County Court of Domestic Relations Loc.R. 10.4 (noting that parties who do not pay
GAL fees can be held in contempt and incarcerated).
{¶74} Mother objected on numerous occasions to the amount of the GAL’s
bills, and she suggested that her finances would be better spent on saving for her son’s
college education and other needs. Mother is gainfully employed (and impressively so
as a college professor in a STEM field), but her annual income is less than the overall
amount of the GAL’s bills. Mother was also going through a divorce at the time the
GAL’s bills were landing, and she had expenses related to equalizing assets and debts
with Father as a result. These factors suggested that Mother may have struggled to
afford the exorbitant fees the GAL was charging.
{¶75} Sup.R. 48.02(H) required the trial court to assess whether all of these
understandable circumstances impeded Mother’s ability to pay the bills prior to a
court order requiring her to do so. Otherwise, the trial court was just setting her up to
fail.
{¶76} But the trial court made no such inquiry. Instead, it approved every
subsequent request for additional GAL fees without inquiring as to the financial
burden it was imposing on the parties. Unlike the majority, I would find this to be
error.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶77} However, insufficient information exists in the appellate record from
which to assess Mother’s ability to pay, and Mother was never given the opportunity
to create such a record. I would therefore remand the matter to the trial court for
further proceedings consistent with Sup.R. 48.02(H).
4. The overall fee award should be consistent with Loc.R. 10.5 and
Jud.Cond.R. 2.13(C).
{¶78} Finally, I consider the overall amount of the fee award in the context of
Hamilton County Court of Domestic Relations Loc.R. 10.5 and Jud.Cond.R. 2.13(C).
Both policies set forth principles that are helpful in assessing whether the overall fee
award in this case is reasonable, although a court is not the proper forum to actually
enforce the judicial conduct rules. See In re T.D.J., 8th Dist. Cuyahoga No. 100972,
2014-Ohio-5684, ¶ 6.
{¶79} The Hamilton County Domestic Relations Court expects parties to
deposit $1,750 when a GAL is appointed in their case. See Hamilton County Court of
Domestic Relations Loc.R. 10.5. Domestic relations courts across the state have
adopted similar guidelines. See, e.g., Summit County Court of Domestic Relations
Loc.R. 34.06. In fact, one court—the Summit County Domestic Relations Court—caps
GAL fees at $1,200 total, creating a benchmark for what is reasonable in these kinds
of cases. Id.{¶80} The GAL’s fees in this case, however, totaled over 88 times what the
Hamilton County Court of Domestic Relations Local Rule establishes as the deposit
amount. See Hamilton County Court of Domestic Relations Loc.R. 10.5. Having
extensively looked, I can find no other case in the history of Ohio courts where the fees
for an appointed GAL came anywhere close to the amount billed in this case. See, e.g.,
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OHIO FIRST DISTRICT COURT OF APPEALS
Burke v. Burke (In Re Pappas), 8th Dist. Cuyahoga Nos. 101059 and 101060, 2014-
Ohio-5279, ¶ 3 (citing entry approving $5,214 in GAL fees against each parent). There
is no reason why this case would be so exponentially more expensive to resolve.
{¶81} On top of that, Jud.Cond.R. 2.13(C) prohibits judges from approving
compensation for appointees beyond the fair value of services rendered. It is hard for
me to see a bill exceeding $150,000, accrued over a period of less than two years, as
being fair, particularly when the parents did not seek to have a GAL involved for their
child.
{¶82} To the contrary, the idea that it would cost any two persons seeking to
amicably terminate their marriage and to parent their son in the best way possible
$155,083.83 to divorce is repugnant. Our courts should be open, accessible, and easy
to navigate for parties seeking resolution of their disputes. Charging people well into
the six figures under the threat of a court order, making them fear arrest if they cannot
or do not pay, is the anthesis of accessibility.
{¶83} In conclusion, I would sustain Mother’s third assignment of error in
part. I would subtract $48,825 of the GAL’s fees due to block-billing under Rubino.
Of the remaining $106,258.83, I would remand the matter to the trial court for a
consideration of Mother’s ability to pay under Sup.R. 48.02(H) and for an assessment
of whether the fees are reasonable in light of Jud.Cond.R. 2.13(C) and Hamilton
County Court of Domestic Relations Loc.R. 10.5.
Please note:
The court has recorded its entry on the date of the release of this opinion.
30