[Cite as Rummelhoff v. Rummelhoff,
2021-Ohio-4579.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
EMILY B. RUMMELHOFF, : APPEAL NOS. C-210112
C-210176
Plaintiff-Appellee, : TRIAL NO. DR-1601871
vs. :
O P I N I O N.
DAVID P. RUMMELHOFF, :
Defendant-Appellant. :
Appeals From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: December 29, 2021
Murray Law LLC and Elizabeth Murray, for Plaintiff-Appellee,
Kroener Hale LLC and Thomas E. Meade, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant David P. Rummelhoff appeals the judgments of
the Hamilton County Court of Common Pleas, Domestic Relations Division, raising
eight assignments of error for our review. In sum, David argues the court erred by:
denying his motion for relief from judgment; considering plaintiff-appellee’s motion
to have defendant declared vexatious; calculating child support incorrectly; awarding
attorney fees to plaintiff-appellee; and refusing to assign a new magistrate. For the
following reasons, we affirm the judgments of the domestic relations court in part,
reverse them in part, and remand this cause for further proceedings consistent with
the law and this opinion.
Factual and Procedural Background
{¶2} This is the second appeal in the divorce case between plaintiff-appellee
Emily B. Rummelhoff and defendant-appellant David P. Rummelhoff. In his first
appeal to this court, David argued that the trial court abused its discretion by
adopting Emily’s shared-parenting plan, overruling his motion to compel Emily’s
mental-health records, and incorrectly calculating the child-support obligation.
Rummelhoff v. Rummelhoff, 1st Dist. Hamilton No. C-190355, 2020-Ohio-2928
(hereinafter “Rummelhoff I”). This court reversed the trial court’s child-support
award and remanded the cause for the trial court to “compute the [child-support]
amount in accordance with the newly revised statutes and child-support worksheet.”
Id. at ¶ 35. We affirmed the trial court’s judgment in all other respects. Id.
{¶3} On remand, David filed a Civ.R. 60(B) motion for relief from judgment
regarding the release of Emily’s mental-health records, which the trial court denied.
Emily filed a motion to have David declared a vexatious litigator, which the trial
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court also denied. Emily filed a motion for attorney fees, which the trial court
granted. The trial court also denied David’s motion to assign a new magistrate to the
case after David accused the magistrate of ex parte communications. Pursuant to
this court’s remand order, the trial court issued a revised child-support-obligation
order. All of these issues are before us in this second appeal.
1st Assignment of Error: Appellant’s Civ.R. 60(B)(5) Motion
{¶4} David’s first assignment of error concerns his efforts to compel the
release of Emily’s mental-health records. He argues that the trial court erred in
denying his Civ.R. 60(B)(5) motion for relief from judgment.
{¶5} A trial court’s ruling on a Civ.R. 60(B) motion is reviewed for an abuse
of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77,
514 N.E.2d 1122 (1987). “Abuse
of discretion occurs when ‘a court exercise[es] its judgment, in an unwarranted way,
in regard to a matter over which it has discretionary authority.’ ” State v. Austin, 1st
Dist. Hamilton Nos. C-210140 and C-210141,
2021-Ohio-3608, ¶ 5, quoting Johnson
v. Abdullah, Slip Opinion No.
2021-Ohio-3304, ¶ 35. An abuse of discretion “implies
that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983). “ ‘[C]ourts lack the
discretion to make errors of law.’ ” Austin at ¶ 5, quoting
Johnson at ¶ 39.
{¶6} A brief procedural history is necessary to understand the Civ.R. 60(B)
motion. In Rummelhoff I, this court held that the trial court did not err in denying
David’s motion to compel Emily’s mental-health records. Id. at ¶ 25. We also held
that the trial court appropriately considered the mental health of the parties as
required by statute. Id. at ¶ 26. Following this court’s decision in Rummelhoff I,
David filed an application for reconsideration and a motion to certify a conflict to the
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Ohio Supreme Court on May 21, 2020—both focusing on compelling Emily’s mental-
health records. On June 24, 2020, this court denied both. On July 14, 2020, after
this court denied David’s motion for reconsideration, David filed an “addendum” to
his application for reconsideration, citing Torres Friedenberg v. Friedenberg, 161
Ohio St.3d 98,
2020-Ohio-3345,
161 N.E.3d 546, as an “intervening” Ohio Supreme
Court case that supported his motion to compel. Then, on July 27, 2020, David filed
a notice of appeal with the Ohio Supreme Court, but the court declined jurisdiction.
David filed a motion for reconsideration, which the court denied on December 15,
2020. On December 22, 2020, David filed a Civ.R. 60(B) motion for relief from
judgment in the trial court, which it denied.
{¶7} David argued that he was entitled to Civ.R. 60(B)(5) relief due to the
“intervening” decision of Friedenberg, which he claims supports his argument that
his motion to compel Emily’s mental-health records should have been granted.
Specifically, he argued that he had a right to discover her mental-health records and
that without the records, the trial court did not satisfy the R.C. 3109.04(F)(1)(e)
requirement to consider the mental health of the parties in determining child
custody.
{¶8} However, David’s motion was properly denied because Friedenberg is
not an intervening decision. An intervening decision “is one which states a rule of law
in conflict with the earlier mandate.” Clements v. Ohio Hosp. Ins. Co., 5th Dist. Stark
No. 2004CA00265, 2005-Ohio-1956, ¶ 32. In Friedenberg, the Ohio Supreme Court
held that, “[a]lthough communications between a physician and patient are generally
privileged under R.C. 2317.02(B)(1), [the] filing of [a] divorce action, with claims for
child custody and spousal support, triggered the R.C. 2317.02(B)(1)(a)(iii) exception
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to the privilege for communications that relate causally or historically to physical or
mental injuries relevant to issues in the divorce action.” Friedenberg at ¶ 39.
{¶9} In Rummelhoff I, this court held that the trial court did not abuse its
discretion in refusing to compel the release of Emily’s mental-health records to
David and his counsel. Rummelhoff I, 1st Dist. Hamilton No. C-190355, 2020-Ohio-
2928, at ¶ 25. But neither this court nor the trial court held that Emily’s mental-
health records were privileged or irrelevant to the issues in the divorce proceeding.
In fact, the record showed that Emily’s mental-health records were released to, and
reviewed by, the social worker who conducted the parenting investigation. The
records were also discussed in his report. Thus, we held that the trial court properly
considered Emily’s mental health as required by R.C. 3109.04(F)(1)(e).
{¶10} Friedenberg does not stand for the proposition that a party’s mental-
health records must be turned over to the opposing party in a divorce proceeding
under all circumstances. Because Friedenberg does not state a rule of law in conflict
with Rummelhoff I, it is not an intervening decision.
{¶11} David’s Civ.R. 60(B) motion was simply an attempt to relitigate the
issue of Emily’s mental-health records, which was already decided in Rummelhoff I.
The trial court did not abuse its discretion by denying the motion. The first assignment
of error is overruled.
2nd Assignment of Error: Motion to have Defendant Declared a
Vexatious Litigant
{¶12} On January 8, 2021, Emily filed a motion to have the defendant
declared a vexatious litigant under R.C. 2323.52 for David’s numerous motions and
appeals that, she argued, were intended to harass her. The court denied the motion.
Nevertheless, in David’s second assignment of error, he argues the trial court erred
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OHIO FIRST DISTRICT COURT OF APPEALS
by even considering the merits of the motion. He contends that in order to have a
party declared a vexatious litigant, R.C. 2323.52 requires a party to commence a civil
action by filing a complaint. He claims that filing a motion in a pending case does not
satisfy the requirements of the statute. He argues that the trial court erred by
considering and then denying the motion, instead of acknowledging its lack of
authority to consider the motion.
{¶13} It is well-settled in Ohio that courts will not issue advisory opinions.
Fortner v. Thomas, 22 Ohio St.2d 13, 14,
257 N.E.2d 371 (1970). To that end, courts
must avoid “giving opinions on abstract propositions.”
Id. Courts must also avoid
ruling on an appeal that is moot. Paige v. Ohio High School Athletic Assn., 2013-
Ohio-4713,
999 N.E.2d 1211, ¶ 7-8 (1st Dist.), citing Miner v. Witt,
82 Ohio St. 237,
92 N.E. 21 (1910). A case is moot “if at any stage there ceases to be an actual
controversy between the parties.” Id. at ¶ 8.
{¶14} David argues that “considering and issuing a decision on a null
motion* … leaves open the door for Plaintiff to file the same frivolous motion in the
future.” However, because the motion was denied, there is no actual controversy and
the issue is moot. Any ruling on this issue would be an advisory opinion. If the trial
court were to grant a vexatious litigator motion in the future, David could appeal the
issue at that time. David’s second assignment of error is overruled.
3d, 4th, 5th, and 6th Assignments of Error:
Child Support Deviations
{¶15} In his third, fourth, fifth, and sixth assignments of error, David takes
issue with the trial court’s decision to deviate downward from the guideline child
support by a total of $612.17 per month.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} “A trial court’s decision regarding child-support obligations falls
within the discretion of the trial court and will not be disturbed absent a showing of
an abuse of discretion.” Rummelhoff I, 1st Dist. Hamilton No. C-190355, 2020-Ohio-
2928, at ¶ 30, citing Booth v. Booth, 44 Ohio St.3d 142, 144,
541 N.E.2d 1028 (1989).
{¶17} When determining the child-support obligation, courts are directed to
refer to the basic child-support schedule to find the guideline support amount using
the combined income of the parties. R.C. 3119.02. Then, courts may deviate from
that guideline amount if the court determines that, based on the factors in R.C.
3119.23, the amount “would be unjust or inappropriate and therefore not be in the
best interest of the child.” R.C. 3119.22. This determination “must be supported by
findings of fact and must be journalized.” Carr v. Blake, 1st Dist. Hamilton No. C-
990174, 2000 WL 192138, *5 (Feb. 18, 2000), citing Marker v. Grimm,
65 Ohio
St.3d 139,
601 N.E.2d 496 (1992), paragraph three of the syllabus; Ross v. Ross, 12th
Dist. Preble No. CA2004-07-009,
2005-Ohio-2922, ¶ 27 (following Marker).
{¶18} The trial court’s $6,052 annual deviation from the child-support
schedule was at issue in Rummelhoff I. Rummelhoff I at ¶ 14. We held that the
court’s notation of “equal parenting time” on the child-support worksheet as the
reason for the deviation was insufficient and we remanded the cause with the
following instructions:
Because the domestic relations court did not make the required
determination that the obligation was unjust and not in the best
interest or factual findings to support such a deviation, we reverse that
portion of the court’s decision.
…
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OHIO FIRST DISTRICT COURT OF APPEALS
Upon remand, the trial court shall compute the amount in accordance
with the newly revised statutes and child-support worksheet.
Id. at ¶ 34-35.
{¶19} On remand, the magistrate noted on the support worksheet that there
was a downward deviation of $505.95 “[f]or 3119.23 factors (monthly amount)” and
$106.22 “[f]or 3119.231 extended parenting time (monthly).” In the attached
decision, the magistrate wrote:
The above amount deviates downward from guideline support in the
amount of $505.95 for factors in O.R.C. §3119.23 and $106.22 for
factors in O.R.C. §3119.231 because the amount calculated pursuant to
the basic child support schedule and the applicable worksheet would
be unjust or inappropriate and not in the best interest of the children.
The total deviation amounts to $612.17. Specific factors in O.R.C.
§3119.23 that the Magistrate reviewed were, (E) the relative financial
resources of the parties in that Mr. Rummelhoff has the ability to earn
more than he currently was earning; (I) significant in kind
contributions from Ms. Rummelhoff including health insurance costs.
{¶20} In the third assignment of error, David argues that the trial court erred
as a matter of law and abused its discretion by adopting the magistrate’s child-
support order, which he claims exceeded the scope of the remand order. David raises
several arguments in this assignment of error, which contend that the trial court
either did not comply with or exceeded the scope of the remand order. We address
each in turn.
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OHIO FIRST DISTRICT COURT OF APPEALS
The basic support schedule
{¶21} David argues there were values included on the child-support
worksheet that “were supposed to come from the Basic Child Support Schedule (JFS
07767) but which do not actually appear anywhere in that document.” This argument
is without merit.
{¶22} R.C. 3119.05(G)(2) gives courts the discretion to make a child-support
determination using any of three calculation methods. Specially, the statute
provides:
If the combined annual income of both parents … is an amount
that is between two amounts set forth in the first column of
the schedule, the court or agency may use the basic child support
obligation that corresponds to the higher of the two amounts in the
first column of the schedule, use the basic child support obligation that
corresponds to the lower of the two amounts in the first column of the
schedule, or calculate a basic child support obligation that is
between those two amounts and corresponds proportionally
to the parents’ actual combined annual income or the
individual parent's annual income.
(Emphasis added.) R.C. 3119.05(G)(2).
{¶23} Faced with a combined annual income that did not appear on the basic
support schedule,1 the court used the underlying formulas found at R.C. 3119.021 to
calculate an amount “that is between those two amounts and corresponds
See, e.g., Ohio Dept. Job & Family Svcs., Basic Support Schedule,
1
http://www.odjfs.state.oh.us/forms/num/JFS07767/pdf/ (accessed Dec. 17, 2021).
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proportionally to the parents’ actual combined annual income.” R.C. 3119.05(G)(2).
The court did not err in its calculation of the guideline support amount.
The trial court deviated for reasons not sought by Emily
{¶24} David argues the court erred because it deviated for reasons not sought
by Emily. R.C. 3119.22 provides that the court may deviate after assessing the factors
in R.C. 3119.23 if the court determines that the amount is unjust, inappropriate, and
not in the child’s best interest. The statute does not require that a party request a
deviation before the court can deviate. The discretion lies with the court.
The trial court did not exceed the scope of the remand order
{¶25} David argues that the court exceeded the scope of the remand order by
deviating from the guideline amount for “entirely new reasons,” not addressed in the
court’s first child-support order, because “[c]omputation was the only action this
Court ordered.” Essentially, he argues that because “equal parenting time” was the
only reason given for deviation in Rummelhoff I, the court was limited to that reason
on remand.
{¶26} The issue in Rummelhoff I was that the court did not make a finding
that the obligation was unjust and not in the best interest of the children; and did not
provide sufficient findings of fact to support the deviation. Upon remand, the court
was not limited to giving the same reasons for the deviation. It was required to justify
the deviation.
{¶27} In the revised child-support order, the court noted a downward
deviation for (1) “the relative financial resources of the parties in that Mr.
Rummelhoff has the ability to earn more than he was currently earning;” (2)
“significant in-kind contributions from Ms. Rummelhoff including health insurance
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OHIO FIRST DISTRICT COURT OF APPEALS
costs,” and (3) a 10 percent deviation for shared parenting, pursuant to R.C. 3119.23
and 3119.231. Like in his sixth assignment of error, David takes issue with the fact
that “considering the exact same set of facts, the Magistrate decided initially that
equal parenting time … was the solitary reason to deviate child support,” but on
remand it “now only justif[ies] a 10% deviation.”
{¶28} In Rummelhoff I we directed the trial court on remand to provide the
required findings of fact to support the deviation. The court was well within the
remand order to include new reasons to support the deviation amount. However, as
discussed below, we find that the trial court abused its discretion in deviating for
those reasons.
The propriety of the deviations at issue
{¶29} The rest of David’s third assignment of error, and his fourth, fifth, and
sixth assignments of error, challenge the grounds for the trial court’s deviations.
{¶30} In his third assignment of error, David argues that the trial court has
not set forth adequate reasons for why a deviation was in the best interest of the
children. He argues it is not enough for the trial court to “merely include the ‘magic
words’ ” that the child-support amount is not in the best interest of the children. But
the thrust of his argument is that the court’s reasons for the deviations were
erroneous and an abuse of discretion. As set forth below in our discussion of the
fourth and fifth assignments of error, we agree that the court abused its discretion
when it granted two of the deviations.
{¶31} In David’s fourth assignment of error, he argues the trial court abused
its discretion by deviating for the “relative financial resources of the parties” under
R.C. 3119.23(E) based on the magistrate’s belief that David had the ability to earn
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OHIO FIRST DISTRICT COURT OF APPEALS
more than he currently was earning. R.C. 3119.23(E) states that “relative financial
resources” include “the disparity in income between the parties or households, other
assets, and the needs of each parent.” R.C. 3119.23(E).
{¶32} While the record demonstrates that David has extensive education and
training that would allow him to increase his income, particularly because he will no
longer be the primary caretaker, the court already imputed $25,000 of income to
David on this basis when it calculated the guideline support amount.
{¶33} A parent’s underemployment is accounted for when the court imputes
income. The Tenth District has directed trial courts to follow a two-step process in
making this determination:
First, the trial court must determine that the parent is voluntarily
unemployed or underemployed. Once the court makes such a finding,
the court must then determine the amount of income to impute, based
upon the factors in [R.C. 3119.01(C)(17)].
(Citations omitted.) Habtemariam v. Worku, 10th Dist. Franklin No. 19AP-47,
2020-Ohio-3044, ¶ 14. These factors include “prior employment,” “education,”
“availability of employment,” “prevailing wages,” “special skills and training,” and
“increased earning capacity because of experience.” R.C. 3119.01(C)(17) (formerly
R.C. 3119.01(C)(11), eff. through Sept. 2021). It is evident that the intent of the
legislature was to account for income potential through the imputation of income,
rather than to deviate based on a “relative financial resource” as the magistrate
seemed to do here.
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{¶34} Thus, a deviation based on “relative financial resources” does not refer
to a party’s untapped income potential or underemployment. The deviation must be
based on actual financial resources.
{¶35} While it is unclear if the magistrate meant to deviate due to the
disparity in income between the parties, the trial court seemed to interpret the
magistrate’s decision in that way. In its entry on the objections, the trial court stated
that “[w]hen comparing the parties’ relative financial resources, including the
income disparity between parties, it is proper to use the imputed amount for a
party’s income if that party is voluntarily unemployed.” We agree with that
statement. But if the deviation was based on the disparity in income between the
parties, then that deviation would be unreasonable and an abuse of discretion
because David’s imputed income is less than half of Emily’s income and Emily lives
in a two-income household.2 See, e.g., Hilbert v. Hilbert, 2016-Ohio-8099,
74 N.E.3d
977, ¶ 31-32 (12th Dist.) (holding that the trial court did not abuse its discretion in
refusing to deviate downward because the record showed that father’s salary far
exceeded mother’s and father lived with someone who helped pay expenses, “thus
making his financial capacity and ability to pay child support even greater”);
Mayberry v. Mayberry, 10th Dist. Franklin No. 15AP-160,
2016-Ohio-1031, ¶ 54
(“Mayberry cannot escape the fact that his household income significantly exceeds
Duke’s household income. Given this fact, we find no abuse of discretion in the trial
court's decision not to deviate from the guideline child support amount.”).
2At the September 18, 2018 hearing, Emily testified that in September or October of 2017 she
moved in with her partner, Ryan, later buying a house with him. She stated that “[o]ne of the
main reasons was financial.” We note, however, that benefits received from shared living
expenses are specifically included as a deviation factor in R.C. 3119.23(G).
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{¶36} It was an abuse of discretion to base a deviation under R.C. 3119.23(E)
on David’s “ability to earn more than he currently was earning.” David’s fourth
assignment of error is sustained.
{¶37} In his fifth assignment of error, David argues that the court erred by
deviating under R.C. 3119.23(I) for “significant in-kind contributions from [Emily]
including health insurance costs.” R.C. 3119.23(I) allows courts to deviate from the
standard obligation for: “[s]ignificant in-kind contributions from a parent, including,
but not limited to, direct payment for lessons, sports equipment, schooling, or
clothing.” David argues that the legislature intended health-insurance costs to be
dealt with elsewhere on the worksheet, and the record does not support any in-kind
contributions made by Emily. Emily concedes that the children’s insurance
premiums are already accounted for in the worksheet, but argues the deviation is
nonetheless valid because of her responsibility to pay the first $388.70 per year, per
child in uninsured and unreimbursed medical expenses.
{¶38} In its entry on the objections to the magistrate’s order, the trial court
stated that the deviation was proper because “Line 10 only factors in a fifteen dollar
per month reduction in child support for providing health insurance for the
children.” The court held that “[i]t is not improper for the magistrate to deviate an
additional amount based on Plaintiff’s payment of health insurance premiums for the
children.” Thus, despite Emily’s contention that the trial court’s deviation was
referring to uninsured and unreimbursed medical expenses, the trial court made it
clear that the deviation was referring to the health-insurance premiums paid for by
Emily.
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{¶39} Despite the trial court’s significant discretion on these matters, we are
not persuaded that “health insurance costs,” specifically health-insurance premiums,
are the type of “in-kind contribution” intended to be accounted for under R.C.
3119.23(I). It is significant that health-insurance costs are not mentioned at all as a
deviation factor. Furthermore, line 10 of the child-support worksheet already
accounted for the health-insurance premiums paid by Emily. See, e.g., Haviza v.
Haviza, 2d Dist. Darke No. 2017-CA-1, 2017-Ohio-5615, ¶ 28 (finding no abuse of
discretion by the trial court for refusing to deviate downward due to health insurance
premiums paid by father because “the child support worksheet accounts for the
amount of the health insurance premiums paid by [father].”).
{¶40} Because the health-insurance premiums are already accounted for in
the worksheet and the trial court did not specify any other costs it was referring to,
we find that the court abused its discretion in granting a deviation on this basis.
David’s fifth assignment of error is sustained.
{¶41} In David’s sixth assignment of error, he argues “[t]he trial court erred *
… by deviating child support downward by fifty-eight percent.” David does not take
issue with the court’s 10 percent deviation for “equal parenting time,” because he
agrees that it is required by statute. R.C. 3119.051 directs trial courts to deviate 10
percent “in addition to any other deviations” for parents with shared-parenting
responsibilities of over 90 nights per year.
{¶42} However, David does take issue with the remainder of the deviations
ordered by the trial court. Because we sustained David’s assignments of error with
regard to the other deviations, his sixth assignment of error is sustained in part and
overruled in part.
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OHIO FIRST DISTRICT COURT OF APPEALS
7th Assignment of Error: Award of Attorney Fees
{¶43} David argues the trial court erred when it awarded $2,288 in attorney
fees to Emily under R.C. 3105.73(B). He specifically argues the fees are improper
because they were awarded without an evidentiary hearing, and he contends that the
separation agreement requires each party to pay his or her own fees. We agree the
court erred by not holding an evidentiary hearing, but find the separation agreement
does not prohibit the trial court’s fee award.
{¶44} A trial court’s award of attorney fees is reviewed for an abuse of
discretion. Burroughs v. Burroughs, 1st Dist. Hamilton Nos. C-990001 and C-
990031, 2000 WL 262366 (March 10, 2000); see Hoover Kacyon, LLC v. Martell,
2018-Ohio-4928,
125 N.E.3d 265, ¶ 63 (5th Dist.) (reviewing an award of attorney
fees under R.C. 3105.73 for an abuse of discretion). Generally, attorney fees can be
awarded when authorized by statute or upon “a finding of conduct which amounts to
bad faith.” Vance v. Roedersheimer,
64 Ohio St.3d 552,
597 N.E.2d 153 (1992).
{¶45} Here, the statute provides that that a court may award attorney fees in
“any post-decree motion or proceeding that arises out of an action for divorce” “if the
court finds the award equitable … consider[ing] the parties' income, the conduct of
the parties, and any other relevant factors the court deems appropriate [not
including the parties’ assets].” (Emphasis added.) R.C. 3105.73(B). Prior to awarding
fees under R.C. 3105.73, a trial court must hold a hearing to determine the
reasonableness of the fees. Hubbard v. Hubbard, 3d Dist. Defiance No. 4-08-37,
2009-Ohio-2194, ¶ 12. Simply submitting itemized bills, without any evidence that
the adverse party has been billed for, or paid, the fees, is insufficient and constitutes
an abuse of discretion. Id.; see Bagnola v. Bagnola, 5th Dist. Stark No.
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2004CA00151, 2004-Ohio-7286, ¶ 36 (finding an abuse of discretion where no
evidentiary hearing was held to determine amount of fee); Patterson v. Patterson,
197 Ohio App.3d 122,
2011-Ohio-5644,
966 N.E.2d 898, ¶ 10-11 (1st Dist.) (holding
hearing for attorney fees under R.C. 3105.73(B) was sufficient when party had
opportunity to cross-examine the adverse party on the fees requested).
{¶46} In this case, while a hearing was held via Zoom, the parties were not
present, and no testimony was taken on the reasonableness of the fees. Rather,
itemized bills were submitted without an opportunity for appropriate cross-
examination. For these reasons, we find the trial court abused its discretion in
awarding fees under R.C. 3105.73(B).
{¶47} We do not, however, find that the separation agreement signed by the
parties, and incorporated into the decree of divorce, precluded the court’s fee award.
Although the agreement provides that “[e]ach party shall be responsible for the
payment of that party’s own individual attorney fees,” the trial court held this
provision applied only to fees incurred prior to the decree being entered. We agree.
While the separation agreement limits the payment of attorney fees up to the point of
the decree being filed, it is not reasonable to assume the separation agreement
permanently precludes a court from awarding attorney fees for any postdecree
proceedings. This is particularly true where the provision authorizing the award aims
to curb frivolous conduct in postdecree proceedings, which the trial court found to be
necessary here. See R.C. 3105.73(B).
{¶48} Because the trial court awarded attorney fees without an evidentiary
hearing to determine their reasonableness, the seventh assignment of error is
sustained.
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8th Assignment of Error: Refusing to Assign a New Magistrate
{¶49} Finally, David argues that the trial court abused its discretion by
refusing to assign a new magistrate after, he contends, the magistrate engaged in ex
parte communications with Emily’s attorney via email. David alleges that the
assistant to Emily’s attorney sent the magistrate multiple ex parte emails, including a
Microsoft Word copy of a shared-parenting plan. He contends that this alleged ex
parte communication somehow prejudiced him with regard to the shared-parenting
plan.
{¶50} However, David’s issues with the shared-parenting plan were already
litigated in Rummelhoff I, and this court affirmed the trial court’s adoption of the
shared-parenting plan. Rummelhoff I, 1st Dist. Hamilton No. C-190355, 2020-Ohio-
2928, at ¶ 21. Presumably understanding that he cannot relitigate issues pertaining
to the shared-parenting plan, David requests that because the magistrate engaged in
ex parte communications, this court should “order that the trial court disqualify the
magistrate from hearing any matter pertaining to this case or either party, and to
remand the matter to be heard by a different judge in the Hamilton County Court of
Domestic Relations.”
{¶51} Pursuant to Civ.R. 53(D)(6), disqualification of a magistrate is within
the discretion of the trial court. Thus, we review a trial court’s decision on a motion
to disqualify a magistrate for an abuse of discretion. See Lingenfelter v. Lingenfelter,
2015-Ohio-4002,
43 N.E.3d 46, ¶ 10 (9th Dist.).
{¶52} Ex parte communication with a judge3 is grounds for the judge’s
removal “when there is ‘proof that the communication … addressed substantive
3A “judge” within the meaning of the Ohio Code of Judicial Conduct includes a magistrate.
Application of the Code of Judicial Conduct, Section I.B.
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OHIO FIRST DISTRICT COURT OF APPEALS
matters in the pending case.’ ” (Citation omitted.) In re O'Farrell, 155 Ohio St.3d
1263,
2017-Ohio-9449,
121 N.E.3d 380, ¶ 4, quoting In re Disqualification of
Calabrese,
100 Ohio St.3d 1224,
2002-Ohio-7475,
798 N.E.2d 10, ¶ 2.
{¶53} Emily argues, and the trial court agreed, that the emails were
administrative and therefore covered by the ex parte communication exception in
Jud.Cond.R. 2.9. Jud.Cond.R. 2.9(A)(1) permits judges to communicate ex parte,
“[w]hen circumstances require it … for scheduling, administrative, or emergency
purposes.” These communications must not address issues on the merits, and the
judge must “reasonably believe[] that no party will gain a procedural, substantive, or
tactical advantage.” Id.
{¶54} Because the emails are not included in the record and David has not
demonstrated the emails were anything but administrative, we cannot say that the
trial court abused its discretion in refusing to assign a new magistrate. This
assignment of error is overruled.
Conclusion
{¶55} For the foregoing reasons, we overrule David’s first, second, and eighth
assignments of error. However, we sustain his third, fourth, fifth, and seventh
assignments of error. We sustain his sixth assignment of error in part and overrule it
in part. We remand this cause for the domestic relations court to hold an evidentiary
hearing on the amount of attorney fees to be awarded under R.C. 3107.73 and to
revise the child-support award consistent with the law and this opinion.
Judgments affirmed in part, reversed in part, and cause remanded.
BERGERON, P.J., and WINKLER, J., concur.
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Please note:
The court has recorded its own entry on the date of the release of this opinion.
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