Lykins v. Lykins

[Cite as Lykins v. Lykins, 2021-Ohio-274.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
SUSANA E. LYKINS, :
Appellee, : CASE NO. CA2020-03-009
: OPINION
- vs - 2/1/2021
:
DONALD H. LYKINS, :
Appellant. :
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 2015DRA00621
Heyman Law, LLC, D. Andrew Heyman, 1212 Sycamore Street, Suite 32, Cincinnati, Ohio
45202, for appellee
Donald H. Lykins, 8415 Reading Road, Reading, Ohio 45215, pro se
HENDRICKSON, P.J.
{¶1} Donald Lykins (“Donald”) appeals from the decision of the Clermont County
Common Pleas Court, Domestic Relations Division, which modified his child support order
and awarded attorney fees to his ex-wife, Susana Lykins ("Susana"). For the reasons that
follow, this court affirms the domestic relations court's decision.
{¶2} The parties wed in 1996 and divorced in 2017. Two children were born of the
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marriage, and both are still minors. On a prior appeal to this court from the divorce, amongst
various other arguments presented, Donald assigned error to the decree's child support
order.1 Relevant to the current appeal, Donald challenged the court's decision to impute
him with approximately $31,000 in self-employment income resulting from his ownership of
multiple residential rental properties. This court affirmed the domestic relations court's
decision with respect to child support, with the exception of one correction to the child
support worksheet to account for spousal support payments.
{¶3} Pursuant to this court's remand instructions, the domestic relations court
amended the child support order in an entry filed in July 2018. A few months later, Donald
requested that the Clermont County Child Support Enforcement Agency (CSEA) perform
an administrative review of the child support order. The CSEA conducted that review and
later issued an administrative recommendation lowering Donald's child support order.2 The
apparent reason for the recommendation to lower Donald's child support order was that the
child support worksheet completed by the CSEA imputed no income to Donald with regard
to his rental property business.
{¶4} Susana objected to the administrative recommendation and the matter was
transferred to the domestic relations court for review. Susana filed a memorandum in
support of her objections, in which she asked for a sanction of attorney fees under R.C.
2323.51, alleging that Donald had engaged in frivolous conduct by requesting the
administrative review. In turn, Donald moved the court to adopt the CSEA recommendation
and modify child support. Additionally, he asked the court to modify or eliminate spousal
1. Lykins v. Lykins, 12th Dist. Clermont Nos. CA2017-06-028 and CA2017-06-032, 2018-Ohio-2144.
2. As noted by the domestic relations court, it is uncertain under what statutory or regulatory authority the
CSEA acted to review the child support order as the regulations only permit review every 36 months after a
child support order has issued. Based upon testimony later adduced at the hearing, the court found that no
regulatory exception to allow an early administrative review applied.
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support.
{¶5} The court held an evidentiary hearing over two days, at which Donald and
Susana testified. The focus of the hearing was the finances of Donald's rental property
business and his claim – despite having almost no debt tied to any of the rental properties
– that he operated the business at a considerable loss.3 The evidence presented was
voluminous and convoluted. Donald testified that the business was operated mostly in cash
and that most tenants paid their rent in cash. Despite owning multiple rental properties,
Donald claimed he kept no records documenting when a tenant would pay him cash.
Instead, he memorized all that information and would provide cash-paying tenants with a
receipt (he did not keep a copy). He did not maintain a separate business bank account
and would sometimes deposit cash from rents into his personal checking account. Often,
he would never deposit the cash, and it would instead be paid directly to the various people
he employed to maintain the properties. He did not issue form 1099s to any of the people
he paid to work on or maintain the properties.
{¶6} Donald kept a handwritten "ledger" of payments to workers or contractors,
which was introduced into evidence. The ledger was essentially a clipboard with blank
paper and Donald would have contractors or workers sign it when he gave them cash
payment for their work. The information contained on the ledger was minimal, and often
only included the date, the amount Donald allegedly paid in cash, the printed and signed
name of the worker or contractor, and sometimes the address number of the property where
work would be or had been performed. Donald did submit receipts from stores where he
purchased supplies for the rental properties. Finally, Donald submitted into evidence a
3. In explaining why he would continue to operate a rental property business at a loss, Donald likened the
business to raising livestock, i.e., that you must feed and care for livestock while you possess them but you
may later sell them for a profit. Donald claimed he owned the rental properties as "equity," with the end goal
of selling them at some later date for a profit. The court rejected this argument, noting that Donald had argued
in the earlier divorce proceedings that the value of the rental properties had decreased over time.
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spreadsheet, which he had created, which purported to show his income and expenses
from operating the rental property business.
{¶7} In its decision, the court sustained Susana's objections to the CSEA
administrative recommendation, finding that the CSEA lacked the legal authority to consider
Donald's request for an adjustment and that the CSEA recommendation was otherwise
erroneous because it failed to account for any self-employment income or expenses
incurred by Donald. The court additionally found that, despite Donald offering voluminous
documents and other evidence regarding the rental business, he had not provided the court
with objective and reasonable documentation of his actual income and expenses.
Ultimately, the court determined that the payments listed on the handwritten ledger were
unverifiable and were not credible evidence of business expenses associated with the rental
properties. The court indicated it would credit Donald for all actual receipts he submitted
that were paid in cash, and all receipts that could be verified by payments from Donald's
bank account.
{¶8} Ultimately, the court found that Donald was not operating the rental business
at a loss and that his net income from self-employment was approximately $32,000. After
entering all of its findings concerning the parties' income, including the income from both
parties' salaried positions, the court determined that Donald's recalculated child support
order would be approximately 13 percent less than the prior order. Donald asked for a
downward deviation from this amount and argued that the child support order was unfair to
him because Susana was benefitting financially from child support and the amount of the
support payment left him in a poor financial condition.
{¶9} The court rejected all of Donald's various arguments suggesting that Susana
was living a "luxurious lifestyle" because of the child support order. The court further
rejected Donald's claims that he was in in financial distress because of the child support
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order. Instead, the court found that Donald was actually in a much better financial position
than he had been at the time of the divorce. For the same reasons, the court denied
Donald's request to reduce or eliminate his spousal support order.
{¶10} Finally, the court addressed Susana's request for attorney's fees. The court
agreed that Susana was entitled to fees and that the reasons in support of an award of fees
were "numerous." These reasons included Donald's improper request for an administrative
review, Donald's repeated advancement of meritless claims and factual assertions, and
Donald's conduct at the hearing.
{¶11} However, the court observed that because Donald had demonstrated an
entitlement to a reduction in child support, his motion had some merit and Susana should
have to pay some of her attorney fees. Upon review of Susana's attorney's billings records,
which were submitted to the court with written closing argument, the court determined that
Donald should pay $23,637.47, or roughly half, of Susana's attorney's fees. Donald
appeals, raising ten assignments of error, some of which this court will address out-of-order
and collectively.
{¶12} Assignment of Error No. 1:
{¶13} THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING
PLAINTIFF'S ATTORNEY'S FEES BECAUSE THE APPELLEE FAILED TO SHOW THAT
THE APPELLANT'S APPEAL WAS FRIVOLOUS.
{¶14} Assignment of Error No. 10:
{¶15} PURSUANT TO R.C. 3105.73(A), THE TRIAL COURT ABUSED ITS
DISCRETION BY AWARDING ATTORNEY'S FEES TO APPELLEE BECAUSE THE
APPELLEE FAILED TO SHOW THAT THE AWARD WAS NOT EQUITABLE.
{¶16} In his first and tenth assignments of error, Donald argues that the court erred
in ordering him to pay Susana's attorney's fees. Donald contends that he did not engage
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in "frivolous conduct" justifying sanctions and that Susana failed to show that an award of
attorney fees, under R.C. 3105.73, would be equitable.
{¶17} With respect to sanctions under R.C. 2323.51, any party in a civil action, who
claims to have been adversely affected by "frivolous conduct," may move the court for an
award of court costs, reasonable attorney's fees, and other reasonable expenses incurred
in connection with the civil action. R.C. 2323.51(B)(1). "Frivolous conduct" includes the
following conduct by a party to a civil action:
(i) It obviously serves merely to harass or maliciously injure
another party to the civil action or appeal or is for another
improper purpose, including, but not limited to, causing
unnecessary delay or a needless increase in the cost of
litigation.
(ii) It is not warranted under existing law, cannot be supported by a
good faith argument for an extension, modification, or reversal
of existing law, or cannot be supported by a good faith argument
for the establishment of new law.
(iii) The conduct consists of allegations or other factual contentions
that have no evidentiary support or, if specifically so identified,
are not likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are
not warranted by the evidence or, if specifically so identified, are
not reasonably based on a lack of information or belief.
R.C. 2323.51(A)(2)(a).
{¶18} Review of a trial court's decision regarding frivolous conduct involves mixed
questions of law and fact. Winn v. Wilson, 12th Dist. Butler No. CA2016-03-066, 2016-
Ohio-7545, ¶ 11. The trial court's factual determinations are accorded a degree of
deference and will not be disturbed on appeal if there is competent, credible evidence in
the record to support them. Id. citing Judd v. Meszaroz, 10th Dist. Franklin No. 10AP-1189,
2011-Ohio-4983, ¶ 18. The appellate court applies a de novo review to legal questions,
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such as whether a party's conduct satisfies the statutory definition of frivolous conduct. Id.{¶19} Upon review of the trial record, this court finds that the domestic relations
court did not err in granting sanctions. As described at length by the court in its decision,
there were numerous reasons supporting an award of attorney fees. Donald improperly
requested an administrative review by the CSEA, which the court found was a blatant
attempt to relitigate and overturn the court's earlier decision on child support. In this regard,
Donald had repeatedly informed the court that he would continue to challenge the court's
orders on child support and spousal support until the court "got it right," i.e. by giving Donald
what he wanted. The court noted that Donald had admitted this to be true, both in his filings
with the court and his testimony during court hearings.
{¶20} Furthermore, Donald justified his request for a deviation from the child support
worksheet based on the claim that his support payments resulted in severe financial
distress. However, the court found this assertion to be false. In fact, as born out at the
hearing, Donald's financial condition had considerably improved since the divorce. He was
not in severe financial distress; he simply did not want to pay child or spousal support. The
record also supports the conclusion that Susana was forced to defend against Donald's
meritless claims and obtain extensive discovery to vet those claims. The process of vetting
those claims was overly complicated due to Donald's failure to maintain or produce
comprehensible business records.
{¶21} Moreover, and as was abundantly clear upon this court's review of the two
days of hearing in this matter, Donald needlessly prolonged the proceedings by engaging
in repetitive and argumentative questioning, by ignoring the court's rulings on objections,
and by ignoring a multitude of admonitions and reminders by the court to testify, not argue
his case. Finally, Donald's testimony was earmarked by evasiveness in answering
questions concerning his own finances. In sum, Donald's conduct served merely to harass,
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caused unnecessary delay and a needless increase in the cost of litigation, was not
warranted under existing law, and was based upon allegations that lacked factual support.
{¶22} For the same reasons, the domestic relations court had the discretion to
award attorney fees under R.C. 3105.73(B), which requires that such an award be
"equitable." Here, the domestic relation court's decision fully justifies such an award given
that Donald's conduct caused Susana to expend time and resources defending meritless
claims. Thus, an award reimbursing her for a portion of her attorney fees was fair. This
court overrules Donald's first and tenth assignments of error.
{¶23} Assignment of Error No. 2:
{¶24} THE TRIAL COURT ABUSED ITS DISCRETION AWARDING PLAINTIFF'S
ATTORNEY'S FEES BECAUSE THE COURT FAILED TO ALLOW APPELLANT TO
CROSS-EXAMINE [APPELLEE'S ATTORNEY] REGARDING REASONABLE
[ATTORNEY'S FEES] AND [APPELLEE'S ATTORNEY] FAILED TO SUBMIT [AN]
AFFIDAVIT IN SUPPORT OF FEES.
{¶25} Donald argues that the court erred in awarding attorney fees because the
award was based solely upon the submission of Susana's attorneys billing records, no
affidavit was filed, and he was not permitted to cross-examine Susana's attorney concerning
his fees. The party seeking an award of attorney fees has the burden of proving the
reasonableness of the fees. Caparella-Kraemer & Assoc. v. Grayson, 12th Dist. Butler No.
CA2019-11-184, 2020-Ohio-3498, ¶ 26; Levy v. Seiber, 12th Dist. Butler Nos. CA2015-02-
019, CA2015-02-021, and CA2015-02-030, 2016-Ohio-68, ¶ 66; Falk v. Falk, 10th Dist.
Franklin No. 08AP-843, 2009-Ohio-4973, ¶ 39. A court must base its determination of
reasonable attorney's fees upon the "actual value of the necessary services performed, and
there must be some evidence which supports the court's determination." Grayson at id.,citing Climaco, Seminatore, Delligatti & Hollenbaugh v. Carter, 100 Ohio App. 3d 313, 323
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(10th Dist.1995). To calculate attorney's fees, the court must engage in a two-step process
of determining the "lodestar" amount, i.e., the number of hours reasonably expended
multiplied by a reasonable hourly rate, and then determining whether to adjust that amount
based upon the factors set forth under Prof.Cond.R. 1.5(a). See Levy at ¶ 67.
{¶26} Towards the end of the second day of the hearing, Susana's attorney asked
the court how it wished to address the matter of Susana's request for attorney fees. The
court instructed counsel to prepare and submit affidavits with the written closing argument.
Susana thereafter filed her written closing arguments and attached her attorney’s billing
records. However, she did not attach any attorney affidavit to that filing. Instead, Susana
referred to an exhibit at the trial, which was her attorney's affidavit in which he averred as
to the reasonableness of his own fees and the accuracy of his billing invoices. However,
this exhibit was never introduced into evidence at the hearing.
{¶27} In his written closing argument, Donald objected to the lack of a supporting
affidavit and also argued that he should have been permitted to cross-examine Susana's
attorney concerning his fee. This argument was not addressed by Susana in her reply in
support of closing argument, or the court in its decision.
{¶28} Upon review of the record, there was insufficient evidence presented to the
court establishing the reasonableness of Susana's attorney's hourly rate or the
reasonableness of the attorney time expended on the case. Moreover, Donald had no
practical means of challenging the reasonableness of the attorney fee award based on the
procedures used in this case. Consequently, this court sustains Donald's second
assignment of error and reverses and vacates the portion of the court's decision with
respect to the amount of attorney fees awarded to Susana. The matter is remanded to the
domestic relations court for purposes of conducting an evidentiary hearing to determine a
reasonable attorney fee award, at which hearing Donald will have the opportunity to contest
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the reasonableness of the fees sought.
{¶29} Assignment of Error No. 3:
{¶30} THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
APPELLANT'S REQUEST FOR A REDUCTION IN CHILD SUPPORT BECAUSE IT
FAILED TO CONSIDER APPELLANT'S NECESSARY AND ORDINARY BUSINESS
EXPENSES.
{¶31} Assignment of Error No. 5:
{¶32} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
ASSUMING THE CASH BALANCES DON'T ADD UP AND ASSUMING ALL CASH
PAYMENTS TO CONTRACTORS SHOULD BE DISMISSED.
{¶33} In his third and fifth assignments of error, Donald contends that the domestic
relations court erred in determining the amount of his net income for purposes of calculating
his child support payment. Specifically, Donald argues the court failed to credit him for cash
paid to workers and contractors. He argues that the handwritten ledger presented at trial
was sufficient proof that these transactions occurred and that the evidence showed that he
ran his rental business at a loss. Therefore, he contends that the court should not have
attributed him any net income from self-employment.
{¶34} A domestic relations court has wide discretion regarding child support
obligations, and the decision of the trial court will not be disturbed absent an abuse of
discretion. Booth v. Booth, 44 Ohio St.3d 142, 144 (1989). An abuse of discretion implies
that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶35} The domestic relations court determined that Donald's net income from the
rental property business was approximately $32,000. It arrived at this figure by finding
$58,700 in gross income from rent payments. The court then deducted approximately
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$11,500, which it found were expenses that Donald paid in cash and which were
corroborated through receipts generated by third parties. The court further deducted
approximately $15,000, which it found were the expenses paid from Donald's checking
account and which were further corroborated by documents submitted into evidence.
{¶36} This court did not credit Donald for the alleged cash expenses he attempted
to prove through a combination of his testimony and the handwritten ledger. The court's
decision details its exhaustive efforts attempting to make sense of the financials of Donald's
rental property business. However, due to Donald's lack of record-keeping, or poor record-
keeping, he was unable to present the court with a coherent accounting of the business.
Instead, the court was left to sift through a significant volume of miscellaneous evidence,
tax returns, bank statements, receipts, and summaries, in an effort to determine what the
court could credibly find to be a legitimate rental property expense.
{¶37} The court reasonably concluded that the handwritten ledger was not credible
evidence of cash expenses related to the rental properties. In most instances, the ledger
contains such minimal information concerning the cash expenditure that it is impossible to
determine what work was performed. In other words, apart from Donald's self-serving
testimony that he paid a cash expense and that it was rental-related, there was no
independent way for the court or Susana to verify that the expense was legitimate. Donald
did not produce receipts, invoices, or other documents that might corroborate those
expenses. He did not call any witnesses who could testify as to their work and corroborate
that they received payment for expenses related to the rental properties. There were no
corresponding letter or e-mail invoices, no quotes or estimates for work, and no contracts
or estimates generated by the persons who allegedly performed the work. Additionally,
many of the handwritten signatures were illegible and some claimed expenses contained
no signature. Finally, while reviewing bank records, Donald guessed at what many of the
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expenses were for, telling the court, "you're going to have to trust me." In short, Donald
failed to present the court with credible, verifiable evidence of numerous claimed business
expenses.
{¶38} Donald cites Larkin v. Larkin, 2d Dist. Greene No. 2013-CA-54, 2014-Ohio-
957, for the proposition that a domestic relations court abuses its discretion by failing to
"address" business-related expenses. Donald does not explain why Larkin is relevant, but
this court finds it distinguishable. In Larkin, the appeals court found that the domestic
relations court abused its discretion by failing to deduct certain business expenses. Id. at
¶ 10. Larkin is not relevant because the domestic relations court's decision there was based
on failing to include proven expenses in its calculation of net income. In this case, the
domestic relation's court's decision was based on Donald's failure to prove his business
expenses. Based upon the foregoing, this court does not find that the domestic relations
court abused its discretion in failing to credit Donald for all the expenses he sought to
establish. This court overrules Donald's third and fifth assignments of error.
{¶39} Assignment of Error No. 4:
{¶40} THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
DEFENDANT'S REQUEST TO HAVE PLAINTIFF COMPLETE AN AFFIDAVIT OF
INCOME AND EXPENSES AND IMPUTED [sic].
{¶41} Donald contends that the court abused its discretion by using the child support
worksheet to determine the amount of his child support payment because it "inflates his
child support obligation, enabling [Susana] to make a huge profit from the child support
payments." However, as the domestic relations court noted in its decision, the Revised
Code required the court to complete the child support worksheet. R.C. 3119.02. The court
cannot abuse its discretion by adhering to the law. This court overrules Donald's fourth
assignment of error.
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{¶42} Assignment of Error No. 6:
{¶43} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
ADMIT DEFENDANT'S REQUEST TO HAVE A PARTIAL TRANSCRIPT OF PLAINTFF'S
DEPOSITION SUBMITTED AS EVIDENCE.
{¶44} Donald argues that the court erred in not allowing him to introduce a partial
deposition transcript into evidence. Decisions regarding the admission or exclusion of
evidence rest within the sound discretion of the domestic relations court. Koehler v.
Koehler, 12th Dist. Brown Nos. CA2017-12-016 and CA2017-12-017, 2018-Ohio-4933, ¶
45.
{¶45} Donald testified during his case in chief that his monthly child support and
spousal support payments were "killing" him and that his child support payment paid for
"one hundred percent" of the children's monthly expenses. Donald then began to testify
about a statement that Susana made in her deposition and referred to one of his trial
exhibits, which was an excerpt from that deposition and apparently contained the statement
to which he was referring. Susana's counsel objected; he noted that during the deposition
he had objected to Donald's question prompting Susana's statement and further objected
on grounds that the deposition had not been authenticated. The court sustained the
objection.
{¶46} Donald argues that he was entitled to submit the deposition excerpt into
evidence pursuant to Civ.R. 32, which governs the use of depositions in court proceedings
and provides that a partial or complete deposition, "so far as admissible under the rules of
evidence applied as though the witness were then present and testifying, may be used
against any party who was present or represented at the taking of the deposition* * *."
Civ.R. 32(A). Donald further argues that the rule provides that, "[a]ny deposition may be
used by any party for the purpose of contradicting or impeaching the testimony of deponent
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as a witness." Civ.R. 32(A)(1).
{¶47} Donald argues that he was entitled to read a portion of Susana's deposition
testimony into the record pursuant to Civ.R. 32(A)(1) because he was attempting to impeach
Susana's testimony. However, at the time of the objection, Donald was not using the
deposition excerpt to contradict or impeach Susana's testimony as a witness. Instead,
Donald was attempting to impeach Susana's credibility while he testified in his case-in-chief.
Thus, Civ.R. 32(A)(1) in inapplicable.
{¶48} Regardless, even if this court had instead found that it was erroneous to
exclude the partial transcript, this court would not find that Donald suffered any prejudice.
Donald's apparent purpose in presenting the transcript or referring to Susana's deposition
testimony, was to show that Susana testified that Donald's child support payments paid for
"all" of the children's expenses. However, this issue was thoroughly examined at the
hearing through both Donald's and Susana's testimony. It was clear that both parents
supported the children financially and that Susana's income and Donald's child support
payments were used to pay for various expenses related to supporting the children,
including such basic needs as food, shelter, and transportation. Donald's suggestion that
his child support payments paid for the children's support, exclusively, and that Susana did
not contribute financially to the children's support, lacks any merit. Accordingly, the
introduction of this partial deposition transcript was not "critical" and would not have
changed the outcome. The domestic relations court did not abuse its discretion in
sustaining Susana's objection to the partial deposition transcript. This court overrules
Donald's sixth assignment of error.
{¶49} Assignment of Error No. 7:
{¶50} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION [BY] NOT ALLOWING DEFENDANT'S EXPERT WITNESS (CPA ROBERT
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SICKING) TO TESTIFY AND EXCLUDING HIS EXPERT REPORT.
{¶51} Donald argues that the court erred by excluding his expert report and not
allowing his expert witness to testify at the hearing. The trial court's decision on whether to
admit or exclude expert testimony and evidence is reviewed by this court for an abuse of
discretion. See Herzner v. Fischer Attached Homes, Ltd., 12th Dist. Clermont No. CA2007-
08-090, 2008-Ohio-2261, ¶ 7.
{¶52} Prior to the hearing, Donald filed a liminal motion asking the court to exclude
Susana's expert testimony and written report on the basis of Susana's alleged failure to
comply with a pre-trial discovery order concerning disclosure of expert opinions. The court
and parties discussed the issue on the day of the hearing. The pre-trial order required
disclosure of experts and their detailed written report on July 1, prior to the August 27
hearing date. However, Susana's counsel apparently misunderstood or misread the order
and only provided Donald with the identity of Susana's expert witness by the July 1 deadline.
Susana's counsel then provided Donald with her expert's written report seven days prior to
the hearing date.
{¶53} When the court asked Donald whether he had complied with the pre-trial
order, he claimed to have done so and indicated he provided Susana's counsel with his
expert's detailed written report on July 1. However, Susana claimed that what she received
from Donald was not a detailed written report.
{¶54} The court then reviewed Donald's written report, which was a letter from his
accountant (and expert witness) and stated, in its entirety, "I've now had a chance to review
your 2018 federal income tax. Opinion is it's correct. Consistently prepared with the two
prior years." The court found that this letter was not a detailed written report and therefore
found that neither Donald nor Susana had complied with the pre-trial order. The court
therefore ruled that it would exclude both expert reports from evidence.
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{¶55} Later in the trial, the parties discussed whether the experts would be permitted
to testify at all. The court indicated that it would not permit experts to testify concerning any
matters that had not been disclosed to the other side by the pre-trial order date. Donald did
not object to this decision and explicitly announced his agreement that neither party would
be introducing any expert testimony.
{¶56} This court does not find that the domestic relations court abused its discretion
in excluding Donald's expert testimony and evidence. As described above, Donald failed
to comply with the pre-trial order by failing to provide Susana with a detailed written report.
The same reasoning would justify the court's decision to exclude expert testimony.
Moreover, Donald agreed with the court's decision to exclude both parties' expert
witnesses, thus he cannot now claim it was error. This court overrules Donald's seventh
assignment of error.
{¶57} Assignment of Error No. 8:
{¶58} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION NOT REDUCING DEFENDANT'S ALIMONY PAYMENT TO PLAINTIFF
WHEN PLAINTIFF IS SIGNIFICANTLY MORE WEALTHY THAN WHEN DIVORCE
DECREE WAS SIGNED AND HAS MORE IN HER RETIREMENT THAN DEFENDANT
AND IS 10 YEARS YOUNGER.
{¶59} Donald argues that the court abused its discretion in not reducing his spousal
support payment where Susana now earns more than she did at the time of the divorce,
where she has $100,000 more in her retirement account than he does even though he is
ten years older than she, and where she has twice as much money in her checking account.
Donald cites R.C. 3105.18(C)(1)(c) and (d), which require the court to consider the age and
retirement benefits of the parties in determining whether an award of spousal support is
appropriate.
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{¶60} Donald failed to present evidence at trial indicating an inability to pay spousal
support. To the contrary, the evidence at trial indicated that Donald was in better financial
condition than he was at the time of the divorce. Additionally, Donald indicated in post-trial
briefings that he had obtained new salaried employment and was earning a greater salary
than Susana. Finally, the evidence introduced at trial indicated that the reason that Donald's
retirement account was lower than Susana's, despite their relative age difference, was
because of his decision to invest hundreds of thousands of dollars of his retirement account
in Bitcoin, which investment was ill-timed and resulted in a significant paper loss. This court
finds no abuse of discretion in the court's decision not to reduce or eliminate spousal support
and overrules Donald's eighth assignment of error.
{¶61} Assignment of Error No. 9:
{¶62} THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT'S REQUEST TO ADOPT THE AMENDED ADMINISTRATIVE
RECOMMENDATION FOR A REDUCTION IN CHILD SUPPORT, RESULTING IN AN
ABUSE OF DISCRETION BY IGNORING CLEAR AND CONVINCING EVIDENCE.
{¶63} Donald argues that the court abused its discretion by rejecting the CSEA's
administrative recommendation on child support. Donald contends that the CSEA had the
authority to amend the court's child support order.
{¶64} As the court noted in its decision, at the time of Donald's request for an
administrative review, the applicable regulations then in effect, set forth in O.A.C. 5101:12-
60-05.1(E), provided that a party to a child support order could initiate an administrative
review less than 36 months after the issuance of a child support order only under 14
circumstances set out in the rule. Donald initiated the administrative review only months
after its issuance. The court found that Donald failed to establish any of the fourteen
circumstances justifying early review.
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Clermont CA2020-03-009
{¶65} In support of his argument that the court abused its discretion in failing to
adopt the administrative recommendation, Donald fails to specify which exception he claims
permitted the early administrative review. In his reply brief he clarifies that the CSEA
determined that "one or more" of the 14 exceptions applied but does not identify which
exception applied. This court perceives no abuse of discretion in the domestic relations
court's decision finding that CSEA lacked legal authority to conduct the administrative
review. Regardless, this issue is irrelevant because the court determined that the CSEA
failed to account for any of Donald's self-employment income. This court overrules Donald's
ninth assignment of error.
{¶66} Judgment affirmed in part and reversed in part.
S. POWELL and PIPER, JJ., concur.
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