Bray v. Bray

[Cite as Bray v. Bray, 2011-Ohio-861.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
LISA A. BRAY, :
:
Plaintiff-Appellant, : Case No: 10CA3167
:
v. :
: DECISION AND
ROBERT L. BRAY, : JUDGMENT ENTRY
:
Defendant-Appellee. : File-stamped date: 2-23-11
APPEARANCES:
L. Jackson Henniger, L. Jackson Henniger & Assoc., Logan, Ohio, for Appellant.
Thomas M. Spetnagel and Paige J. McMahon, Spetnagel and McMahon, Chillicothe,
Ohio, for Appellee.
Kline, J.:
{¶1} Lisa A. Bray (hereinafter “Lisa”) appeals the judgment of the Ross County
Court of Common Pleas, which granted her a divorce from Robert L. Bray (hereinafter
“Robert”). On appeal, Lisa contends that the trial court erred (1) in its award of spousal
support, (2) in its valuation of an automobile, and (3) in reaching decisions that are
against the manifest weight of the evidence. However, because her appellate brief
does not comply with App.R. 16(A)(7), we choose to disregard her fourth, sixth, and
seventh assignments of error.
{¶2} We will, however, address Lisa’s five remaining assignments of error.
Initially, Lisa contends that the trial court erred in not allowing her to testify about the
value of Robert’s business equipment. Because the trial court did not commit plain
Ross App. No. 10CA3167 2
error by excluding this testimony, we disagree. Next, Lisa contends that the trial court
did not equitably divide the marital property. But we find that her argument has no merit
for two reasons. First, as we noted above, the trial court did not commit plain error in
relation to Lisa’s testimony. And second, we will not second guess the trial court’s
credibility determinations. Lisa further contends that the trial court erred in denying her
motion for mistrial. Because Lisa failed to demonstrate either (1) material prejudice or
(2) that a fair trial was no longer possible, we disagree. Finally, Lisa contends that the
trial court erred in denying her request for attorney’s fees. Because Lisa did not
demonstrate that her fee request was reasonable and necessary, we disagree.
Accordingly, we overrule Lisa’s first, second, third, fifth, and eighth assignments of error,
and we affirm the judgment of the trial court.
I.
{¶3} On December 29, 2005, Lisa filed for divorce from Robert. In her complaint,
Lisa requested a fair and equitable distribution of the marital assets and debts.
{¶4} Two different attorneys represented Lisa in the proceedings below. At some
point during this case, Lisa’s original counsel incurred criminal charges unrelated to
Lisa’s divorce. Robert’s attorney was then hired to represent Lisa’s original counsel in
the unrelated criminal matter. Later, in February 2009, Lisa fired her original counsel
and hired her current attorney.
{¶5} The magistrate held “Final Divorce Hearing[s]” on March 3, 2008; December
11, 2008; April 22, 2009; and June 26, 2009. Lisa’s original counsel represented Lisa
during the two 2008 hearings, and Lisa’s current attorney represented Lisa during the
Ross App. No. 10CA3167 3
two 2009 hearings. Throughout the four hearings, both Lisa and Robert testified about
their various assets and debts.
{¶6} Robert is the sole proprietor of a logging business that he had acquired during
the marriage. During the December 11, 2008 hearing, Lisa attempted to testify about
the monetary value of the logging business’s equipment. Robert objected to this
testimony because “[a]n owner is allowed to give an opinion” as to value, and the
equipment “belong[ed] to Rob Bray[.]” December 11, 2008 Transcript at 107. The
magistrate sustained Robert’s objection, and Lisa was not permitted to testify about the
equipment’s monetary value.
{¶7} At the start of the April 22, 2009 hearing, Lisa’s current counsel moved for a
mistrial. Although the arguments supporting her initial motion for mistrial are not in the
record, Lisa apparently requested a mistrial based on Robert’s attorney having
represented Lisa’s original counsel in the unrelated criminal matter. The magistrate
denied Lisa’s motion.
{¶8} On August 18, 2009, the magistrate issued a decision on the various
contested issues. In relevant part, the magistrate (1) divided the marital assets and
debts, (2) recommended that Robert pay $250 per week in spousal support for a period
of forty-eight months, and (3) recommended that both Lisa and Robert pay their own
attorney’s fees.
{¶9} Lisa filed her objections to the magistrate’s decision, but the trial court
overruled her objections. Additionally, the trial court (1) adopted the magistrate’s
findings and (2) granted both Lisa and Robert judgments of divorce against each other.
Ross App. No. 10CA3167 4
{¶10} Lisa appeals and asserts the following eight assignments of error: I. “The trial
court erred when it held that Appellant Lisa A. Bray was not permitted to express her
opinion as to the value of equipment that was the equipment of the family business,
ostensibly owned by her husband, Appellee Robert L. Bray, which property was marital
property, thereby constituting her as a de facto owner of the property by nature of her
equitable if not a legal interest in the property arising from her entitlement to a
distributive share of the property under R.C. [] 3105.171.” II. “The trial court erred when
it held that Appellant Lisa A. Bray was not permitted to express her opinion as to the
value of equipment that was the equipment of the family business, ostensibly owned by
her husband, Appellee Robert L. Bray, under the circumstances that she was an
employee of the company who handled the books and records of the company and was
familiar with the equipment, and had otherwise acquainted herself with the property
values.” III. “The trial court erred when it failed to make an equitable division of property
as required by R.C. [] 3105.171: a. under the circumstances that Appellant was not
permitted to testify as to value of equipment that was marital property[;] b. under the
circumstances that Appellee was obviously not credible when he testified that he had
disposed of items of equipment or that his son Ryan Bray owned them, all which flies in
the face of the insurance declaration page setting forth insured items as well as the
depreciation schedule of a tax return prepared by his own accountant[;] c. under the
circumstances that Appellee was obviously not credible when he testified that his 19
year old son Ryan Bray had taken over the business or words to that effect in the face
of the major gross income coming to the son, that was upwards of $150,000 per month
for several months[;] d. under the circumstances that Appellee was obviously not
Ross App. No. 10CA3167 5
credible and his tax returns were not credible and did not reflect the true state of
income, which was substantially higher than shown on the returns ($25,000 to $40,000),
given that he made substantial purchases of equipment (in excess of several hundred
thousand dollars), during the period of separation of the parties and before their
separation, having acquired hundreds of thousands of dollars of equipment prior to the
separation, much of which he claims blew up or was sold off, and was loaned hundreds
of thousands of dollars by his banks.” IV. “The trial court erred when it awarded
Appellant spousal support in the low sum of $1,000 per month for a period of four years
in the face of a twenty-one and one-half year marriage, given the obvious
understatement of income by Appellee.” V. “The trial court erred, plainly erred or
abused its discretion, when it failed to grant a mistrial to Appellant for lack of fairness to
the Appellant emanating from the inadherence to ethical standards by counsel in the
preceding portions of the trial. New counsel L. Jackson Henniger so moved, upon the
court being informed of the obvious ethical conflicts of Appellant’s previous counsel * * *
and Thomas J. Spetnagel, in contravention of Prof. Cond. Rule 1.7 (a)(2), under the
circumstances that [Lisa’s original counsel], when faced with a criminal charge, hired, of
all people, opposing counsel in this case, Thomas M. Spetnagel, while this case was
under way and while each attorney represented an opposing party in this case.” VI.
“The court erred in reaching decisions that were against the manifest weight of the
evidence.” VII. “The court erred in assigning a value for a Chevelle automobile that was
not supported by the evidence and that was Wife’s separate property as being a gift
from her father, and finding that it was marital property.” And, VIII. “The court erred in
not awarding the Appellant attorney fees because the court relied on case law that
Ross App. No. 10CA3167 6
interpreted a statute that was no longer effective regarding the awarding of attorney
fees at the time Appellant filed her complaint in divorce.”
II.
{¶11} Initially, we must note a deficiency in Lisa’s appellate brief. As Robert
correctly observes, Lisa’s appellate brief does not comply with App.R. 16(A)(7), which
provides: “The appellant shall include in its brief, under the headings and in the order
indicated, all of the following: * * * An argument containing the contentions of the
appellant with respect to each assignment of error presented for review and the reasons
in support of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies. The argument may be preceded by a summary.” Lisa,
however, has cited no authority in support of her third, fourth, sixth, or seventh
assignments of error – not a single statute, case, or treatise.
{¶12} “‘If an argument exists that can support [an] assignment of error, it is not this
court’s duty to root it out.’” Thomas v. Harmon, Lawrence App. No. 08CA17, 2009-
Ohio-3299, at ¶14, quoting State v. Carman, Cuyahoga App. No. 90512, 2008-Ohio-
4368, at ¶31. “‘It is not the function of this court to construct a foundation for [an
appellant’s] claims; failure to comply with the rules governing practice in the appellate
courts is a tactic which is ordinarily fatal.’” Catanzarite v. Boswell, Summit App. No.
24184, 2009-Ohio-1211, at ¶16, quoting Kremer v. Cox (1996), 114 Ohio App.3d 41, 60.
Therefore, “[w]e may disregard any assignment of error that fails to present any
citations to case law or statutes in support of its assertions.” Frye v. Holzer Clinic, Inc.,
Gallia App. No. 07CA4, 2008-Ohio-2194, at ¶12. See, also, App.R. 16(A)(7); App.R.
12(A)(2); Oldacre v. Oldacre, Ross App. No. 08CA3073, 2010-Ohio-1651, at ¶35 (Kline,
Ross App. No. 10CA3167 7
J., with one judge concurring in judgment only); Albright v. Albright, Lawrence App. No.
06CA35, 2007-Ohio-3709, at ¶16; Tally v. Patrick, Trumbull App. No. 2008-T-0072,
2009-Ohio-1831, at ¶21-22; Jarvis v. Stone, Summit App. No. 23904, 2008-Ohio-3313,
at ¶23; Sigmon v. Southwest Gen. Health Ctr., Cuyahoga App. No. 88276, 2007-Ohio-
2117, at ¶50-51; In re T.G., Butler App. Nos. CA2005-10-444 & CA2005-12-521, 2006-
Ohio-5504, at ¶34-36; Henry v. Gastaldo, Tuscarawas App. No. 2005 AP 03 0022,
2005-Ohio-4109, at ¶3-4.
{¶13} In the past, we have often reviewed noncompliant appellate briefs “in the
interest of justice.” See, e.g., Frye at ¶12; Albright at ¶16. We do not believe, however,
that justice requires this court to review three of Lisa’s assignments of error.
{¶14} Under her sixth assignment of error, Lisa argues (in just two sentences) that
the result of the “entire proceeding” is against the manifest weight of the evidence. In
our view, however, Lisa’s sixth assignment of error is too vague to address on appeal,
especially because it contains (1) no citations to the record and (2) no citations to any
legal authority.
{¶15} The argument supporting Lisa’s seventh assignment of error contains just
seven words: “This finding is unsupported by the evidence.” Again, without citations to
the record or to any legal authority, we do not believe that justice requires this court to
review Lisa’s seven-word argument.
{¶16} The argument supporting Lisa’s fourth assignment is somewhat more specific
than the arguments under her sixth-and-seventh assignments of error. Nevertheless, in
her fourth assignment of error, Lisa asks this court to construct the entire foundation for
her spousal-support claim. Lisa makes no citations to the record, and she has not cited
Ross App. No. 10CA3167 8
any legal authority. Instead, Lisa has requested (1) that we build the legal basis for her
argument and (2) that we search the entire record to find evidence that might support
her claim. Essentially, as it relates to her fourth assignment of error, Lisa has asked this
court to serve as her appellate counsel. We do not believe that such an undertaking
would be in the interest of justice.
{¶17} Accordingly, we will not review Lisa’s fourth, sixth, or seventh assignments of
error.
III.
{¶18} Before addressing Lisa’s first-and-second assignments of error, we must note
another procedural deficiency. That is, in her appellate brief, Lisa has failed to
separately argue her first-and-second assignments of error as required by App.R.
16(A)(7). Instead, Lisa has presented just one argument in support of both assignments
of error. Under App.R. 12(A)(2), we may choose to disregard any assignment of error
that an appellant fails to separately argue. Therefore, we could exercise our
discretionary authority to summarily overrule Lisa’s first-and-second assignments of
error. See Newman v. Enriquez, 171 Ohio App.3d 117, 2007-Ohio-1934, at ¶18; Mtge.
Electronic Registrations Sys. v. Mullins, 161 Ohio App.3d 12, 2005-Ohio-2303, at ¶22,
citing Park v. Ambrose (1993), 85 Ohio App.3d 179, 186; State v. Caldwell (1992), 79
Ohio App.3d 667, 677, fn. 3. In the interest of justice, however, we choose to address
Lisa’s first-and-second assignments of error.
A.
{¶19} In her first-and-second assignments of error, Lisa contends that the trial court
should have allowed her to testify “as to the value of equipment that was the equipment
Ross App. No. 10CA3167 9
of the family business[.]” Brief of Appellant at 1. Lisa raises two arguments in support
of her first-and-second assignments of error. First, because she was Robert’s wife, Lisa
argues that she was also a de facto owner of the equipment. And second, Lisa argues
that she was familiar with the value of the equipment because she handled the
business’s books and records. For these reasons, Lisa contends (1) that she fell under
an exception to the expert-witness rule in Evid.R. 702 and (2) that she should have
been permitted to testify under Evid.R. 701.
{¶20} Lisa readily admits that “[t]he legal theories advanced [under her first-and-
second assignments of error] may not have been raised, argued or explained at trial[.]”
Brief of Appellant 2. As such, Lisa concedes that the “plain error [rule] applies[.]” Brief
of Appellant 2; see, also, Sprouse v. Miller, Lawrence App. No. 07CA32, 2008-Ohio-
4384, at ¶12; A.S. v. D.G., Clinton App. No. 2006-05-017, 2007-Ohio-1556, at ¶12.
{¶21} The civil-plain-error rule, however, “should never be applied to reverse a civil
judgment simply because a reviewing court disagrees with the result obtained in the trial
court, or to allow litigation of issues which could easily have been raised and
determined in the initial trial.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 1997-
Ohio-401. Therefore, “[i]n appeals of civil cases, the plain error doctrine is not favored
and may be applied only in the extremely rare case involving exceptional circumstances
where error, to which no objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the judicial process, thereby challenging
the legitimacy of the underlying judicial process itself.” Id. at syllabus.
{¶22} Here, we cannot find that Lisa’s first-and-second assignments of error rise to
the level of plain error. Lisa is merely trying to litigate an issue that could have easily
Ross App. No. 10CA3167 10
been raised and determined in the proceedings below. It is undisputed that “[t]he
admission or exclusion of evidence rests within the sound discretion of the trial court.”
Thomas at ¶17, citing State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, at ¶50.
Therefore, parties should raise their evidentiary arguments at the trial court level. If
evidentiary arguments are not raised at the trial court level, there is often no way of
determining whether trial courts have abused their discretion in admitting or excluding
relevant evidence.
{¶23} Furthermore, Lisa has not demonstrated that the alleged error affected the
basic fairness, integrity, or public reputation of the judicial process. Lisa had the
opportunity to raise her arguments at the trial court level, but she failed to do so. We do
not believe that a party’s failure to act affects the legitimacy of the judicial process.
{¶24} Accordingly, we find that the trial court did not commit plain error, and we
overrule Lisa’s first-and-second-assignments of error.
IV.
{¶25} We will review Lisa’s third assignment of error even though the argument
supporting it is one sentence long and contains no legal citations. But she has included
a citation to R.C. 3105.171 in the body of the lengthy (four parts) third assignment of
error itself. Furthermore, Lisa has provided citations to the record in support of her
arguments.
{¶26} In her third assignment of error, Lisa contends that the trial court did not
equitably divide the marital property. Lisa has divided her third assignment of error into
four parts, and we will address her specific arguments after discussing the appropriate
standard of review.
Ross App. No. 10CA3167 11
A. Standard of Review
{¶27} “Trial courts must divide marital property equitably between the spouses.
R.C. 3105.171(B). In most cases, this requires that marital property be divided equally.
Id. at (C)(1). However, if the trial court determines that an equal division would produce
an inequitable result, it must divide the property in a way it deems equitable. Id.Because the trial court possesses great discretion in reaching an equitable distribution,
we will not reverse its ultimate division of property absent an abuse of discretion.”
O’Rourke v. O’Rourke, Scioto App. No. 08CA3253, 2010-Ohio-1243, at ¶15 (other
citations omitted). An abuse of discretion connotes more than a mere error of judgment;
it implies that the court’s attitude is arbitrary, unreasonable, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶28} Before a trial court can distribute property, the court must value that property.
Indeed, a trial court must place a monetary value on every contested asset of the
parties in a divorce proceeding. O’Rourke at ¶16; Knight v. Knight (Apr. 12, 2000),
Washington App. No. 99CA27, citing Pawlowski v. Pawlowski (1992), 83 Ohio App.3d
794, 799; Goode v. Goode (1991), 70 Ohio App.3d 125, 132. “Because the valuation of
a specific asset in a divorce case is a question of fact, we review a trial court’s valuation
under the manifest-weight-of-the-evidence standard.” Burriss v. Burriss, Lawrence App.
Nos. 09CA21 & 10CA11, 2010-Ohio-6116, at ¶27 (citations omitted). Consequently, we
will not reverse the trial court as long as some competent, credible evidence supports
the trial court’s valuation. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d
279, syllabus; O’Rourke at ¶16. “This standard of review is highly deferential and even
Ross App. No. 10CA3167 12
‘some’ evidence is sufficient to sustain the judgment and prevent a reversal.” Barkley v.
Barkley (1997), 119 Ohio App.3d 155, 159.
B. Third Assignment of Error, Part A.
{¶29} In part A of her third assignment of error, Lisa contends that the trial court
failed to make an “equitable division of property * * * under the circumstances that
Appellant was not permitted to testify as to [the] value of equipment that was marital
property[.]” Brief of Appellant at 8. Essentially, Lisa’s argument relies on the outcome
of her first-and-second assignments of error – that is, if the trial court had permitted Lisa
to testify as to the value of the business equipment, the trial court would have divided
the property more equitably.
{¶30} Here, Lisa’s argument is dependent upon us having sustained her first-and-
second assignments of error. But we overruled those assignments of error because the
trial court did not commit plain error. Accordingly, part A of Lisa’s third assignment of
error must also fail.
C. Third Assignment of Error, Parts B though D.
{¶31} In parts B through D of her third assignment of error, Lisa contends that the
trial court failed to make an “equitable division of property * * * under the circumstances
that [Robert] was obviously not credible[.]” Brief of Appellant at 8-9. As a result, Lisa
expressly asks this court to second-guess the trial court’s credibility determinations.
{¶32} This court has repeatedly held, however, that “we should not ‘second-guess’
the trial court on the issues of evidence weight and witness credibility.” Portco v. Eye
Specialists, Inc., 177 Ohio App.3d 139, 2008-Ohio-3154, at ¶18. See, also, Scarberry
v. Lawless, Lawrence App. No. 09CA18, 2010-Ohio-3395, at ¶64; Posey v. Posey,
Ross App. No. 10CA3167 13
Ross App. No. 07CA2968, 2008-Ohio-536, at ¶16; Adams v. Adams, Washington App.
No. 05CA2, 2005-Ohio-4588, at ¶14; In re Conroy (June 9, 1999), Lawrence App. No.
98 CA 42. Therefore, we decline Lisa’s invitation to second-guess the trial court’s
assessment of Robert’s credibility. Quite simply, we cannot find that the trial court
abused its discretion by finding Robert to be a credible witness.
D. Conclusion
{¶33} For the foregoing reasons, we overrule Lisa’s third assignment of error.
V.
{¶34} In her fifth assignment of error, Lisa contends that the trial court erred in not
granting her motion for mistrial. As the trial court explained, Lisa “assert[ed] a mistrial
should have been declared because Plaintiff’s first counsel * * * had retained
Defendant’s counsel * * * to represent [him] in an unrelated criminal matter during the
pendency of this divorce.” March 17, 2010 Judgment Entry at 2.
{¶35} “The decision whether to grant a motion for mistrial is addressed to the sound
discretion of the trial court. * * * The trial court is in the best position to determine
whether the circumstances of the case require that a mistrial be declared, or whether
other corrective measures are adequate. * * * A mistrial should only be granted when
the party seeking it demonstrates that he or she has suffered material prejudice such
that a fair trial is no longer possible.” Hillman v. Kosnik, Franklin App. No. 07AP-942,
2008-Ohio-6303, at ¶17 (internal citations omitted). See, also, Perillo v. Fricke, Medina
App. No. 08CA0044-M, 2009-Ohio-1130, at ¶10 (“Great deference is afforded to a trial
court’s decision regarding a motion for a mistrial[,] and the court’s ruling will be reversed
only upon the showing of an abuse of discretion.”) (citation omitted).
Ross App. No. 10CA3167 14
{¶36} It is clear that the magistrate denied Lisa’s request for a mistrial during the
April 22, 2009 hearing. Furthermore, it is clear (1) that Lisa objected to the magistrate’s
ruling and (2) that the trial court later agreed with the magistrate’s decision. The rest of
the record, however, is not so clear.
{¶37} At the start of the April 22, 2009 hearing, Lisa’s current attorney stated: “[F]or
the record, I think we fax filed a motion for mistrial.” April 22 Transcript at 1. But
according to the docket sheet, Lisa never filed such a motion. Lisa did not make any
mistrial-related arguments on the record at the April 22, 2009 hearing, either.
Therefore, we cannot determine what arguments Lisa made in support of her initial
motion for mistrial.
{¶38} Lisa did, however, advance a mistrial-related argument in her objections to
the magistrate’s decisions. In that filing, Lisa claimed the following: “Given the glaring
conflict of interest [Lisa’s original counsel] had by virtue of having hired [Robert’s
counsel] to represent him in a criminal matter that arose during the period of time [Lisa’s
counsel] was representing [Lisa] in the divorce matter, a mistrial should have been
declared in order for [Lisa] to have received a fair trial and the trial should have
recommenced and discovery in full should have been granted anew.” This statement
represents Lisa’s only mistrial-related argument in the record before us.
{¶39} “[I]t is clearly the duty of counsel to create a proper record at trial.” Deskins v.
Cunningham, Union App. No. 14-05-29, 2006-Ohio-2003, at ¶50, citing State v.
Goodwin, 84 Ohio St.3d 331, 340, 1999-Ohio-356. See, also, State v. Irwin, 184 Ohio
App.3d 764, 2009-Ohio-5271, at ¶243 (“One of counsel’s duties is to preserve the
record for appeal.”). And before the magistrate denied her motion for mistrial, Lisa
Ross App. No. 10CA3167 15
failed to either (1) file her written motion or (2) make any mistrial-related arguments on
the record. Therefore, except for the general conflict-of-interest argument contained in
her objections to the magistrate’s decision, Lisa did not preserve any mistrial-related
arguments for appeal. Nevertheless, Lisa has raised some additional arguments in her
appellate brief. For example, Lisa argues that “there are several facts that demonstrate
that [Lisa’s original counsel] did not pursue courses of action on behalf of [Lisa] that
reasonably should have been pursued.” Brief of Appellant at 13. However, because
she failed to preserve these additional arguments at the trial court level, Lisa has
forfeited her additional arguments except for plain error. See, e.g., Sprouse at ¶12; A.S.
at ¶12. Therefore, we will review Lisa’s additional arguments separately from her
general conflict-of-interest argument.
A. Lisa’s General Conflict-of-Interest Argument
{¶40} Based on the limited argument in the record before us, we cannot find that the
trial court abused its discretion in denying Lisa’s motion for mistrial. Here, Lisa did not
make the requisite showing of material prejudice. Lisa’s bare assertion of a conflict of
interest does not demonstrate (1) that she suffered actual material prejudice or (2) that
a fair trial was no longer possible. See, e.g., Hillman at ¶17 (stating that a party must
demonstrate “that a fair trial is no longer possible”).
B. Additional Arguments on Appeal
{¶41} Additionally, we cannot find plain error in the denial of Lisa’s request for a
mistrial. Here, Lisa has not demonstrated that the trial court plainly erred. Even under
her additional arguments, Lisa cannot demonstrate either (1) material prejudice or (2)
that a fair trial was no longer possible. This is especially true considering that Lisa’s
Ross App. No. 10CA3167 16
current attorney represented Lisa from February 2009 until the trial court issued its
divorce decree on April 23, 2010. Therefore, Lisa’s current attorney had over fourteen
months to pursue courses of action that, in his view, Lisa’s original counsel may have
ignored.
{¶42} Furthermore, in her additional arguments, Lisa misstates the standard for
declaring a mistrial. On appeal, she contends (1) that her original counsel had violated
the Rules of Professional Conduct and (2) that the trial court should have granted a
mistrial based on “the wording of the ethical standard as to the possibility of” a conflict of
interest. Brief of Appellant at 13. A possibility of a conflict, however, does not
demonstrate actual material prejudice.
C. Conclusion
{¶43} For the foregoing reasons, we overrule Lisa’s fifth assignment of error.
VI.
{¶44} In her eighth assignment of error, Lisa contends that the trial court erred by
not awarding her attorney’s fees. The trial court cited Leopold v. Leopold, Washington
App. No. 04CA14, 2005-Ohio-214, for the proposition that a “party moving for attorney’s
fees has the burden of proving that expenses were incurred and that the expenditures
were reasonable and necessary.” March 17, 2010 Journal Entry at 6. And because
Lisa did not present this type of evidence, the trial court denied her request for
attorney’s fees. On appeal, Lisa argues that the trial court erred because Leopold
applied a former statute, R.C. 3105.18(H), instead of the current statute, R.C. 3105.73.
Lisa further contends that she was not required to present evidence about the
Ross App. No. 10CA3167 17
reasonableness of her attorney’s fees. Instead, Lisa argues that the trial court should
have used its experience to determine that her fee request was reasonable.
{¶45} “The decision to award attorney fees in a divorce action is vested in the sound
discretion of the trial court and we will not reverse it absent an abuse of that discretion.”
O’Rourke at ¶30, citing Parker v. Parker, Franklin App. No. 05AP-1171, 2006-Ohio-
4110, at ¶36. Under R.C. 3105.73(A), “a 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’ marital assets and income, any award of temporary spousal support, the
conduct of the parties, and any other relevant factors the court deems appropriate.”
{¶46} Here, we find (1) that R.C. 3105.73 does not change Leopold’s reasonable-
and-necessary requirement and (2) that the trial court did not abuse its discretion. In
applying R.C. 3105.73, several Ohio courts have held that “[t]he party seeking
attorney’s fees has the burden of proving the reasonableness of the fees.” Falk v. Falk,
Franklin App. No. 08AP-843, 2009-Ohio-4973, at ¶39 (applying R.C. 3105.73(A)); see,
also, Miller v. Miller, Wayne App. No. 09CA0025, 2010-Ohio-1251, at ¶29-34 (applying
R.C. 3105.73(B)); Hubbard v. Hubbard, Defiance App. No. 4-08-37, 2009-Ohio-2194, at
¶12 (applying R.C. 3105.73(B)). Furthermore, as a general principle, “[a] party seeking
an award of attorneys’ fees has the burden of demonstrating the reasonable value of
such services.” Hikmet v. Turkoglu, Franklin App. No. 08AP-1021, 2009-Ohio-6477, at
¶82 (citations omitted); Braglin v. Crock, Noble App. No. 04-NO-318, 2005-Ohio-6935,
at ¶17; Davis v. Reed (June 20, 1996), Cuyahoga App. Nos. 68699 & 68700.
Therefore, we do not believe that R.C. 3105.73(A) changes Leopold’s reasonable-and-
Ross App. No. 10CA3167 18
necessary requirement, especially considering that both R.C. 3105.73(A) and the former
R.C. 3105.18(H) provide for “reasonable attorney’s fees[.]” (Emphasis added.)
Accordingly, the trial court did not err in citing Leopold.
{¶47} Nevertheless, Lisa cites Gore v. Gore, Greene App. No. 09-CA-64, 2010-
Ohio-3906, at ¶39, for the following proposition: “[W]here the amount of the attorney’s
time and work is evident to the trier of fact, an award of attorney fees, even in the
absence of specific evidence to support the amount, is not an abuse of discretion.”
(Internal quotation omitted.) Essentially, Lisa contends that she was not required to
present specific evidence related to her request for attorney’s fees. Instead, she argues
that the trial court “should have used its knowledge and experience to determine that
the Appellant’s demand for * * * attorney fees was reasonable and necessary.” Brief of
Appellant at 19. We, however, find Gore to be distinguishable from the present case.
{¶48} In Gore, the appellee’s attorney submitted billing statements and explained
the extent of his work. See Gore at ¶38-39. Lisa and her attorney, however, did
nothing similar in the proceedings below. Instead, in her proposed findings of fact and
conclusions of law, Lisa simply requested $5,000 in attorney’s fees.1 And as the trial
court explained, “[T]here was no evidence presented on the description of the services
rendered, the reasonableness of the time spent on the matter and the reasonableness
of the hourly rate. No itemized bills were presented. [Finally, t]here was no evidence
produced that [Lisa] had paid the fees or even been billed for the fees presented.”
March 17, 2010 Journal Entry at 6. Therefore, we find Gore to be distinguishable.
1
In her appellate brief, Lisa suggests that she demanded $10,000 in attorney’s fees.
But in her proposed findings of fact and conclusions of law, Lisa requested that “[t]he
defendant shall pay the sum of $5,000 to Plaintiff as and for attorney fees.”
Ross App. No. 10CA3167 19
{¶49} Furthermore, in all of Lisa’s cited cases, the trial courts actually awarded
attorney’s fees to one of the parties. And in each case, the appellate courts found that
awarding attorney’s fees was not an abuse of discretion. See Gore at ¶39; Lough v.
Lough, Licking App. Nos. 03CA93 & 03CA104, 2005-Ohio-79, at ¶96; Hawk v. Hawk,
Tuscarawas App. No. 2002AP040024, 2002-Ohio-4384, at ¶29; Gearig v. Gearig (Mar.
31, 1993), Lucas App. No. L-92-150; Kreger v. Kreger (Dec. 11, 1991), Lorain App. No.
91CA005073. But here, the trial court did not award attorney’s fees, and Lisa asks us to
find that the trial court did abuse its discretion. Therefore, Lisa’s citations do not
necessarily support her argument. As a general rule, “[a] trial court may use its own
knowledge in reviewing the record to determine the reasonableness of attorney fees.”
Lough at ¶94 (citations omitted) (emphasis added); Gearig. Accordingly, the principle
that Lisa relies upon is discretionary. Lisa, however, asks us to apply this principle as
though it were mandatory. Basically, Lisa asks us to hold that a trial court abuses its
discretion by not applying the discretionary principle in Lough. But the above-cited
cases do not support this argument, and we decline to make such a holding.
Furthermore, after reviewing the record, we find nothing to suggest that the trial court
was required to grant Lisa $5,000 in attorney’s fees.
{¶50} Therefore, we agree that Lisa did not establish whether her requested
attorney’s fees were necessary and reasonable. And because neither the evidence nor
the record necessarily supports Lisa’s request, we cannot find that the trial court abused
its discretion as to attorney’s fees.
Ross App. No. 10CA3167 20
{¶51} Accordingly, we overrule Lisa’s eighth assignment of error. Having overruled
her first, second, third, fifth, and eighth assignments of error, we affirm the judgment of
the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 10CA3167 21
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Ross County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. and McFarland, J.: Concur in Judgment Only.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.