Simms v. Hupp

[Cite as Simms v. Hupp, 

.]


STATE OF OHIO                   )                      IN THE COURT OF APPEALS
                                )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

DAVID SIMMS                                            C.A. No.       30513

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DIANA HUPP                                             COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellee                                       CASE No.   DR-2012-08-2348

                               DECISION AND JOURNAL ENTRY

Dated: October 4, 2023



        STEVENSON, Judge.

        {¶1}    Appellant, David Simms (“Father”), appeals the judgment of the Summit County

Court of Common Pleas, Domestic Relations Division, finding him in contempt for not paying

50% of uninsured healthcare costs for the minor children and ordering him to pay attorney fees on

a motion to compel. We decline to address other findings issued by the trial court in its October

27, 2022, judgment entry as Father does not raise any argument on appeal as to the other findings.

For the reasons set forth below, this Court reverses in part and affirms in part.

                                                  I.

        {¶2}    Father and Appellee, Diana Hupp fka Simms (“Mother”), divorced in 2013. The

trial court’s divorce decree incorporated the parties’ separation agreement and shared parenting

plan. The parties had two minor children at the time of divorce.

        {¶3}    The divorce decree ordered Mother to “pay the first $100 per calendar year per

child towards each child’s uninsured or unreimbursed health care costs ….” The court ordered
                                                  2


that all uninsured healthcare costs above the first $100.00 were to be “apportioned 50% to the

Father and 50% to the Mother.” When seeking uninsured healthcare reimbursement, as set forth

in the shared parenting plan, the requesting party is required to “complete the court’s Explanation

of Medical Bills Form … [and] provide the completed form and any documentation necessary

to verify the information on the form to the other parent on a quarterly basis ….” The owing

parent then has 14 days from receipt of the form and supporting documentation to “make full

payment ….”

       {¶4}    Relevant to this appeal, Mother moved for contempt in 2019, alleging that Father

had not reimbursed her for any of the children’s healthcare expenses since the execution of the

shared parenting plan. A hearing on Mother’s motion, as well as several other pending motions,

was held before a trial court magistrate. The magistrate granted Mother’s motion for contempt

and set forth the conditions under which Father could purge the contempt. The trial court

immediately adopted and entered judgment on the magistrate’s decision.

       {¶5}    Father filed objections to the magistrate’s decision. The trial court overruled

Father’s objections based on his failure to file a praecipe for a transcript or a transcript of the

proceedings within 30 days of filing his objections. Father appealed and this Court reversed and

remanded the matter in Simms v. Hupp, 9th Dist. Summit No. 29823, 

 (“Simms

I”). This Court concluded in Simms I that the Ohio Supreme Court’s Covid-19 tolling order, set

forth in In re Tolling of Time Requirements Imposed by Rules Promulgated by the Supreme Court

and Use of Technology, 

, 

, “tolled any requirement that

[Father] file a praecipe or transcript within the thirty-day deadline set forth in Civ.R. 53[.]” Simms

I at ¶ 11. This Court concluded that “the trial court erred when it overruled [Father’s] objections
                                                3


on the basis that he failed to file [a praecipe or transcript within thirty days of filing his

objections].” 

        {¶6}    On remand, the trial court gave Father time to file a praecipe and supplemental

briefing. After extensions of time were granted, and in addition to other rulings, the magistrate

again granted Mother’s motion for contempt and set forth the conditions under which Father could

purge the contempt. Father’s objections to the magistrate’s decision were overruled and the trial

court adopted and independently entered judgment on the magistrate’s decision.

        {¶7}    With respect to uninsured healthcare expenses, and the reimbursement thereof, the

trial court noted that:

        the Shared Parenting Plan provides that a parent shall ‘complete the court’s
        Explanation of Medical Bills Form to reconcile each parent’s responsibility for the
        ‘out-of-pocket’ health care costs, provide the completed form and any
        documentation necessary to verify the information on the form to the other parent
        on a quarterly basis and the parent owing the other shall make full payment within
        14 days of receipt.’

The trial court also noted Father’s testimony that he never received a quarterly explanation of

benefits form from Mother and Mother’s acknowledgement that she “failed to provide the agreed

upon documentation.”      The trial court found that “[n]either party had complied with this

[reimbursement of uninsured healthcare expenses] provision until Mother provided a packet in

June of 2018 at the mediation.” Even though Mother signed the shared parenting plan on October

31, 2013, she testified that she did not become aware of the quarterly requirement for the

reimbursement of uninsured healthcare expenses until June, 2018.

        {¶8}    The trial court held that, even though Mother did not submit an explanation of

medical benefits form and supporting documentation to Father on a quarterly basis, this did not

excuse Father’s “non-payment of his portion of the child’s out-of-pocket medical expenses ….”

The trial court gave Mother 60 days to provide Father with an explanation of medical bills form
                                                 4


and any other documentation required by the shared parenting plan. The trial court limited the

time period at issue to those uninsured medical expenses incurred between January 1, 2017, and

April 15, 2019.1

       {¶9}     The trial court ordered that a hearing be set to determine whether Mother provided

the documentation to Father and, if yes, for the trial court to determine Father’s share of medical

expenses. If Mother failed to produce the required documentation, her request for reimbursement

would be denied. If the required documentation was produced, the Court stated that it would

schedule a purge hearing in 120 days to determine whether Father purged his contempt. The purge

hearing has been continued several times while this matter is on appeal. A final hearing has yet to

be scheduled.

       {¶10} The trial court also ordered Father to pay Mother the attorney fees she incurred in

filing her September 17, 2019 motion to compel. In her motion to compel, Mother sought a court

order compelling Father to fully answer her first combined discovery request, including

interrogatories and requests to produce. Mother asserted that Father’s objections to certain

interrogatories and requests to produce should be overruled and that she was entitled to an award

of expenses, including reasonable attorney fees. The trial court granted Mother’s motion to compel

on October 1, 2019, noting that “[a]n award of expenses exhausted by [Mother], including

reasonable attorney fees, may be decided by separate order after review of affidavit.”




       1
         Wife testified that, from the time of the parties’ divorce through April 30, 2017, the minor
children were covered through Buckeye health insurance and that there were no uncovered medical
costs. The children were no longer eligible for Buckeye health insurance after Wife remarried.
Wife married David Hupp in 2016. The testimony was that, effective May 1, 2017, the children
went on David Hupp’s health insurance plan and, starting at that time, Wife started to incur
uncovered medical costs for the children.
                                                 5


       {¶11} The trial court overruled Father’s objections and ordered Father to pay Mother

$981.00 for the attorney fees she incurred in filing her motion to compel. The trial court held:

       A review of the record demonstrates some of the items requested in the Motion to
       Compel included [Father’s] bank and credit statements – documentation which is
       pertinent and necessary to evaluate [Father’s] testimony of whether he had paid
       towards the minor children’s extra-curricular activities.2

The trial court determined that the magistrate’s award of $981.00 for attorney fees “was equitable

in accordance with R.C. § 3105.73 ….”

       {¶12} Father appeals the trial court’s judgment entry that held, in addition to other rulings,

Father is responsible for 50% of the minor children’s uninsured or unreimbursed health care costs

even though Mother failed to submit explanation of medical bills forms and supporting

documentation on a quarterly basis. Father also appeals the trial court’s ruling that he is to pay

Mother’s attorney fees incurred in the filing of her September 17, 2019, motion to compel. Father

raises three assignments of error for this Court’s review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT’S DECISION FINDING MR. SIMMS IN CONTEMPT
       OF COURT IS AN ABUSE OF DISCRETION, LACKS SUFFICIENT
       EVIDENCE TO MAKE SUCH A FINDING, AND IS CONTRARY TO THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶13} Father maintains in his first assignment of error that the trial court erred in adopting

the magistrate’s decision, which he claims modified the terms of the parties’ shared parenting plan

regarding the reimbursement of uninsured healthcare expenses. We agree.




       2
          The trial court’s ruling regarding the payment of the minor children’s extra-curricular
activities is not at issue in this appeal.
                                                  6


       {¶14} Generally, “the decision to adopt, reject, or modify a magistrate’s decision lies

within the discretion of the trial court and should not be reversed on appeal absent an abuse of

discretion.” Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 

, ¶ 5. However,

“[i]n so doing, we consider the trial court’s action with reference to the nature of the underlying

matter.” Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-M, 

, ¶ 18. An

abuse of discretion means more than an error of law or judgment; it implies that the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 

 (1983). When applying the abuse of discretion standard, a reviewing court is precluded

from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd.,

 (1993).

       {¶15} Father maintains that the shared parenting plan, adopted by the trial court and made

a court order, unambiguously set forth the process for the reimbursement of uninsured healthcare

expenses for the minor children. Because Mother did not provide the required completed form

and documentation on a quarterly basis, as required by the shared parenting plan, Father argues

that he cannot be held in contempt for not paying his portion of the children’s medical expenses.

We agree.

       {¶16} “A shared parenting plan … is a contract.” Boldt v. Boldt, 9th Dist. Summit No.

18736, 

, *3 (Dec. 9, 1998). Accordingly, in interpreting and enforcing provisions

of a shared parenting plan, a court must follow the rules of contract construction and interpret the

shared parenting plan “so as to carry out the intent of the parties, as that intent is evidenced by the

contractual language.” Skivolocki v. East Ohio Gas Co., 

 (1974), paragraph one

of the syllabus.
                                                7


       {¶17} “The intent of the parties is presumed to reside in the language they chose to use in

their agreement.” Graham v. Drydock Coal Co., 

 (1996). “Accordingly,

when that language contained within the contract is unambiguous, ‘a court may look no further

than the writing itself to find the intent of the parties.’” Erwin v. Erwin, 9th Dist. Wayne No.

13CA0009, 

, quoting Sunoco, Inc. (R & M) v. Toledo Edison Co., 

, 

. “If the terms in a shared parenting plan are unambiguous, then

the words must be given their plain, ordinary, and common meaning.” Pastor v. Pastor, 9th Dist.

Summit No. 26789, 

.

       {¶18} “[B]ecause the construction of written contracts is a matter of law, [an appellate

court] must make a de novo review of the meaning of the shared parenting plan.” Harbottle v.

Harbottle, 9th Dist. Summit No. 20897, 

, ¶ 43; Watkins v. Williams, 9th Dist.

Summit No. 22162, 

 (“any assessment of whether a contract is ambiguous,

is a question of law subject to a de novo review on appeal”); Metcalf v. Akron, 9th Dist. Summit

No. 23068, 

 (“If a contract is unambiguous, its interpretation is a matter of

law unaccompanied by the need for factual determinations.”).

       {¶19} The parties’ shared parenting plan provided for the reimbursement of uninsured

healthcare expenses for the minor children. The shared parenting plan stated:

       For uninsured healthcare of the children, including behavioral therapy or other
       therapies for the children not covered by insurance, the costs shall be paid 50% by
       the Father and 50% by the Mother. Both parents shall receive copies of all of the
       children’s health care bills and insurance reimbursements.

               Mother and Father shall each complete the court’s Explanation of Medical
       Bills Form to reconcile each parent’s responsibility for the ‘out-of-pocket’ health
       care costs, provide the completed form and any documentation necessary to verify
       the information on the form to the other parent on a quarterly basis and the parent
       owing the other shall make full payment within 14 days of receipt.
                                                 8


       {¶20} Ohio courts have consistently recognized that, when used in a statute, contract, or

the like, the word “shall” connotes a mandatory obligation. Black’s Law Dictionary (11th

Ed.2019); Huber v. Inpatient Med. Servs., Inc., 9th Dist. Summit No. 28887, 

 (this Court recognized that a contractual provision including the word “shall” was mandatory).

Accordingly, the submission of the court’s explanation of medical benefits form and supporting

documentation was a mandatory obligation for the parent seeking the reimbursement of uninsured

healthcare expenses. Once the form and supporting documentation was submitted, the owing

parent had a mandatory obligation to make full payment within 14 days.

       {¶21} The terms of the parties’ shared parenting plan, specifically the health insurance

provision contained therein, are unambiguous. In fact, the trial court never found that the parties’

shared parenting plan is ambiguous. As the terms are unambiguous, the court “‘may look no

further than the writing itself to find the intent of the parties.’” Erwin, 9th Dist. Wayne No.

13CA0009, 

, quoting Sunoco, 

, 

.

       {¶22} While Mother, on occasion, texted or e-mailed an explanation of benefits, estimate,

or alleged medical bill to Father, neither Mother nor Father testified as to what was specifically

texted or e-mailed. Regardless, it is undisputed that Mother did not submit to Father an explanation

of medical bills form or supporting documentation on a quarterly basis. Mother testified that she

did not complete and submit an explanation of medical bills form until June 20, 2018, when she

hand-delivered said form to Father at mediation. While Mother submitted the form to Father in

June, 2018, she did not provide supporting documentation.

       {¶23} The health insurance provision of the parties’ shared parenting plan is similar to the

provision that was before the court in S.P. v. M.G., 2d Dist. Greene No. 2020-CA-42, 2021-Ohio-
                                                  9


1744. The appellate court in S.P. ruled that a parent could not be reimbursed for medical expenses

when she failed to follow the unambiguous terms of the parties’ shared parenting plan. Id. at ¶ 140.

Like the provision in this case, the parties’ shared parenting plan in S.P. stated that “[t]he parties

shall provide each other with a copy of all medical bills, amounts paid, and by whom for the minor

child(ren) on a quarterly basis.” Id. at ¶ 139. Once the required information was provided on a

quarterly basis, the owing parent had 30 days to make “[p]ayment for all uncovered medical

expenses[.]” Id.

       {¶24} In its decision, the appellate court noted the trial court’s finding that “Mother failed

to provide Father with copies of uncovered medical bills on a quarterly basis as required by the

Shared Parenting Plan[]” and that “only one $75 payment was properly submitted to Father as

required by the Plan.” Id. at ¶ 138. The court recognized that mother had no entitlement to the

reimbursement of those bills that she failed to submit to father on a quarterly basis as required by

the parties’ shared parenting plan.

       {¶25} In this case, the parties’ shared parenting plan unambiguously states that, “to

reconcile each parent’s responsibility for the ‘out-of-pocket’ health care costs,” the requesting

parent is required to “complete the court’s Explanation of Medical Bills Form” and submit “any

documentation necessary to verify the information on the form to the other parent on a quarterly

basis ….” The health insurance provision specifically provides that the requesting parent “shall”

complete the required form and submit the supporting documentation on a quarterly basis. Once

the required form and supporting documentation is submitted, on the required quarterly basis, the

owing parent “shall make full payment within 14 days of receipt.” The trial court ignored the

mandatory requirements of the shared parenting plan.
                                                 10


       {¶26} In finding Father in contempt, the trial court ignored the unambiguous court-

ordered requirement that the parent requesting the reimbursement of uninsured healthcare

expenses submit to the owing parent, on a quarterly basis, the required medical bills form with

verifying documentation. As Mother failed to comply with this mandatory obligation of the

parties’ shared parenting plan, the trial court erred when it found Father in contempt and excused

Mother from such compliance. Father’s first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR II

       THE COURT ERRED AND ABUSED ITS DISCRETION IN NOT FINDING
       THAT THE LACHES DEFENSE APPLIED TO THE CHILDREN’S
       MEDICAL EXPENSES BECAUSE MOTHER DID NOT SUBMIT THE
       BILLS TIMELY AND HAS NEVER GAVE FATHER OR THE COURT
       PROOF THAT SHE PAID SAID EXPENSES.

       {¶27} Father argues in his second assignment of error that the trial court erred and abused

its discretion when it failed to find that the laches defense applied to Mother’s request for the

children’s uninsured medical expenses. Based on our conclusion in the first assignment of error,

Father’s second assignment of error is moot.

                                ASSIGNMENT OF ERROR III

       THE COURT ABUSED ITS DISCRETION IN ORDERING FATHER TO
       PAY MOTHER’S ATTORNEY’S FEES IN RELATION TO MOTHER’S
       MOTION TO COMPEL DISCOVERY.

       {¶28} Father argues in his third assignment of error that the trial court abused its discretion

in ordering him to pay mother’s attorney fees in relation to her motion to compel discovery. We

disagree.

       {¶29} Mother moved to compel on September 17, 2019, requesting a court order

compelling Father to fully answer her first combined discovery request that included

interrogatories and requests to produce. The court granted Mother’s motion and it subsequently
                                                11


ordered Father to pay Mother $981.00 for attorney fees incurred in the filing of her motion to

compel. Father argues that the trial court abused its discretion in ordering him to pay Mother’s

attorney fees as Mother “purposely engaged in overbroad discovery that produced nothing of

evidentiary value and [Mother] should not now be able to ‘create’ attorney’s fees and try to collect

same.” Father also argues that the trial court abused its discretion when calculating the amount of

owed attorney fees. According to Father, “the amount of time that would have been required to

compel the discovery would be at most, 2.5 hours, including a couple letters to Father’s counsel

and the filing of the Motion. The Court simply comes up with $981 out of nowhere and same is

an abuse of discretion.”

       {¶30} The trial court awarded attorney fees “in accordance with R.C. § 3105.73[.]” R.C.

3105.73(B) states:

       In any post-decree motion or proceeding that arises out of an action for divorce …
       * the court may award all or part of reasonable attorney’s fees and litigation
       expenses to either party if the court finds the award equitable.

While R.C. 3105.73(C) provides that the court may award attorney fees under R.C. 3105.73 and

“any other provision of the … the Rules of Civil Procedure[,]” the trial court specifically

awarded attorney fees pursuant to R.C. 3105.73(C) rather than Civ.R. 37(A)(5).

       {¶31} “Because R.C. 3105.73(B) gives a trial court broad discretion to award attorney’s

fees, we review such an award for an abuse of discretion.” Bajzer v. Bajzer, 9th Dist. Summit No.

25635, 

. As previously set forth, an abuse of discretion means more than an

error of law or judgment; it implies that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore, 

.

       {¶32} After considering the record in this case, we cannot say that the trial court abused

its discretion in awarding Mother $981.00 in attorney fees for the filing of her motion to compel.
                                                  12


Even though some of the materials produced by the motion to compel were not introduced at trial,

this does not mean that the attorney fees award is inequitable. But for Father’s failure to respond

to Mother’s discovery requests, including interrogatories and requests for production, Mother

would not have incurred attorney fees in filing a motion to compel. The trial court noted that some

of the items requested in the motion to compel were pertinent and necessary to evaluate whether

Father paid towards the minor children’s extra-curricular activities. The trial court’s ruling with

respect to the minor children’s extra-curricular activities is not an issue in this appeal.

       {¶33} Mother requested $1,500.00 in attorney fees for the filing of her motion to compel

and the trial court awarded $981.00. The trial court stated that, in awarding attorney fees, it

“reviewed the affidavit provided outlining attorney fees” and “[c]onsider[ed] all factors set forth

in this Court’s Local Rule 25 and ORC § 3105.73 ….” Mother testified as to the attorney fee

invoices, which were admitted as evidence, and Father’s counsel had an opportunity to cross-

examine Mother. The trial court determined that “the award to [Mother] of $981.00 in attorney

fees is equitable.”

       {¶34} Given the record before us, we conclude that the trial court did not abuse its

discretion in awarding Mother attorney fees for the filing of her motion to compel. Further, we

cannot say that the trial court abused its discretion in determining that $981.00 in attorney fees for

the filing of a motion to compel is equitable. Father’s third assignment of error is overruled.

                                                  III.

       {¶35} Father’s first assignment of error is sustained and, accordingly, his second

assignment of error is moot. Father’s third assignment of error is overruled. The judgment of the

Summit County Court of Common Pleas, Domestic Relations Division, is reversed in part and

affirmed in part, and the matter is remanded to the trial court for the correction of the judgment
                                                13


entry regarding the ruling on the reimbursement of uninsured healthcare expenses for the minor

children. Father’s appeal only raised an issue with the trial court’s ruling as to the reimbursement

of uninsured healthcare expenses for the minor children and the attorney fees award on Mother’s

motion to compel. Accordingly, we take no action with respect to the remainder of the trial court’s

judgment entry.

                                                                        Judgment affirmed in part,
                                                                   reversed in part, and remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     SCOT STEVENSON
                                                     FOR THE COURT
                                         14


SUTTON, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

RONALD T. GATTS, Attorney at Law, for Appellant.

LEE GROSSCUP, Attorney at Law, for Appellee.