[Cite as M.E.K. v. P.K.,
2024-Ohio-959.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF OHIO
M.E.K., :
Plaintiff-Appellee, : No. 112942
v. :
P.K., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
RELEASED AND JOURNALIZED: March 14, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-357855
Appearances:
Stafford Co., L.P.A., and Joseph G. Stafford, Nicole A.
Cruz, and Kelley R. Tauring, for appellee.
P.K., pro se.
SEAN C. GALLAGHER, J.:
P.K.1 appeals the domestic relations court’s judgment entry disposing
of several post-decree motions that in pertinent part modified the child support
obligation and reallocated parental rights to M.E.K. Although M.E.K. initially
appeared in this appeal to challenge husband’s motion to stay enforcement of the
order, she has not filed an appellate brief. Under App.R. 18(C), this panel is
permitted to “accept the appellant’s statement of the facts and issues as correct and
reverse the judgment if appellant’s brief reasonably appears to sustain such action.”
For the following reasons, and after reviewing the arguments as presented and the
relevant portions of the record, we affirm in part, reverse in part, and remand for
further proceedings.
According to P.K.’s statement of the case, he filed a motion to modify
a parenting order, attempting to obtain temporary custody of his children, in 2019.
Based on that motion, a guardian ad litem (“GAL”) was appointed on behalf of the
children, and the matter was set for hearing. The GAL was originally appointed in a
dual capacity as a GAL and attorney for the children, who were also made parties to
the action under Civ.R. 75(B)(2). The trial court later clarified that the GAL was not
serving as an attorney for the children, citing Ohio Rules of Superintendence
48.02(E),2 but no order rescinding the earlier decision to join the children as parties
1 In order to protect the children’s identity, the parents’ names are not used.
2 That rule provides: “If a court appoints a guardian ad litem in an allocation of
parental rights and responsibilities case, the guardian ad litem shall be appointed only to
or appointing them new counsel has been identified. Throughout that time, P.K.
represented himself. M.E.K. filed a motion for attorney fees, challenging P.K.’s
conduct. In 2020, P.K. hired counsel, who withdrew in 2022. M.E.D. v. P.K., 8th
Dist. Cuyahoga No. 112070, 2023-Ohio-3471, ¶ 3. In March 2023, a hearing on the
motion was held.
According to the magistrate’s decision, the parties were divorced in
2016 after approximately 11 years of marriage. The couple have three children. The
final judgment entry of divorce provided, upon agreement of the parties, that M.E.K.
would be the sole legal custodian and residential parent of the children. P.K. had
weekly visitation on Wednesday afternoons and alternating weekends. The children
did not fare well after the divorce. According to the magistrate’s findings of fact,
they “began to exhibit signs of developmental challenge and extreme alienation”
from M.E.K. The children’s “devotion” to P.K. was described as “cult-like.” M.E.K.
attempted to engage the children in therapy but was sabotaged by P.K.
The GAL investigated the situation and recommended that all visits
between P.K. and the minor children be supervised and all telephone contact
between the minor children and P.K. be monitored. After review of the GAL’s report,
all visitation between P.K. and the minor children was temporarily suspended out
of concern for their well-being. The GAL released a supplemental report and
recommendation concluding that each child had individually improved their well-
represent the best interest of the child and shall not also be appointed as the attorney for
the child.”
being and their relationship with M.E.K. following the suspension of P.K.’s
visitations. The children’s mental health was described as fragile, with ongoing
therapy and limited visitation with P.K. recommended.
As the evidence presented at the hearing demonstrated, according to
the magistrate’s findings of facts, P.K. himself was undergoing mental health
treatment because he suffered from “anxiety and depression due to the situational
stress of the pending domestic relations litigation.” He also presented with
schizotypal personality disorder traits (“STPD”), and according to one of his treating
mental health professionals, “demonstrated limited insight into how his attitudes
and behaviors impacted others.” STPD “is a mental health condition manifested by
a consistent pattern of intense discomfort with close relationships and social
interactions; people with STPD possess distorted views of reality, superstitions and
unusual behaviors.” P.K. hired a second mental health professional to review
transcripts of the telephone conversations between P.K. and his children. Upon her
review, she opined that P.K.’s “discussions with the minor children ‘were not helpful
to [the minor children’s] mental health and were clearly inappropriate.’”
In response to P.K.’s motion to modify his parental rights, M.E.K.
filed a motion seeking attorney fees and a motion to modify the visitation schedule.
Those motions were also discussed and considered along with P.K.’s motion, along
with a bevy of other motions not relevant to this appeal. With respect to the attorney
fees and litigation expenses, M.E.K. claimed that P.K.’s conduct delayed the
proceedings and required significant and well-researched responses. M.E.K. sought
$136,000 in compensation.
The magistrate issued a thorough decision resolving several
outstanding motions, but as pertinent to this appeal, the magistrate denied P.K.’s
motion to modify his parental rights, citing the children’s best interest, granted
M.E.K.’s motions for attorney fees and to modify visitation, and granted the GAL’s
requested fees. The magistrate concluded that M.E.K.’s request for attorney fees
was too broad and relied on a “heavily redacted” fee bill that included work
performed for other issues or was otherwise too vague to constitute demonstrative
proof of the fees expended. According to the magistrate, “the fee bill was redacted
to the extent that this Court cannot reasonably determine who provided what
services, and at what rate. Specifically, when reviewing each item, time is noted, but
there is no dollar amount applied to each service.” The magistrate then noted
several other material issues with the evidence M.E.K. submitted to support her
request for $136,000 in attorney fees. The magistrate awarded $12,500 in attorney
fees to M.E.K. as being reasonable and equitable for M.E.K.’s counsel’s services
related to the current litigation and based on weighing P.K.’s conduct against
M.E.K.’s counsel’s conduct, described as unnecessarily delaying the proceedings ten
months through his claimed “heavy schedule.”
Both parties objected to the magistrate’s decision. The domestic
relations court adopted the magistrate’s decision denying P.K.’s motion to modify
his parental rights, but the court sustained in part M.E.K.’s objection to the award
of attorney fees, increasing the amount of attorney fees to $40,000 based on P.K.’s
conduct in the underlying litigation and because P.K. did not “object to the
reasonableness of the services rendered.” No explanation of how the court arrived
at the $40,000 in fees was provided.
This appeal timely followed. P.K., proceeding pro se, raises three
arguments in which he claims that (1) the children were deprived of their right to an
attorney throughout the proceedings; (2) the domestic relations court erred by
awarding the GAL her fees; and (3) the domestic relations court erred by increasing
the award of attorney fees without considering the statutory factors and by solely
relying on P.K.’s conduct and ignoring M.E.K.’s counsel’s dilatory behavior.3
P.K. first argues that the domestic relations court erred by failing to
appoint counsel to represent the minor children to preserve the children’s wishes.
He claims this failure is structural, requiring a reversal.
Generally, children are not parties to divorce proceedings or the
ancillary custody matters. See In re A.G., 139 Ohio St.3d 572,
2014-Ohio-2597,
13 N.E.3d 1146, ¶ 1 (holding that a child is not a proper party in a divorce action or
3 P.K. and the children suffer from mental health issues necessitating treatment.
The domestic relations court modified P.K.’s custody and visitation based on his failure
to recognize the impact his issues have on the children, but that conclusion was based on
the children’s and P.K.’s separate treatment providers, who all reached the same
conclusion. The domestic relations court modified the visitation schedule but permitted
P.K. to offer a change in circumstances if the children’s and his healthcare providers agree
that it would be in the children’s best interest. P.K. also argues that this panel should
order the domestic relations court to appoint one neutral healthcare provider to render
an opinion on all of their health concerns. That is well beyond the power of this court.
Given the complexity of mental health issues and the nuances of providing professional
services to children and adults, it is not a court’s place to dictate treatment options.
its ancillary custody proceedings). Civ.R. 75(B)(2) authorizes the appointment of
counsel for the children under the court’s discretionary authority. If “it is essential
to protect the interests of a child, the court may join the child of the parties as a party
defendant and appoint a guardian ad litem, and legal counsel, if necessary for the
child and tax the costs.” Civ.R. 75(B)(2). The appointment of counsel for the
children is within the trial court’s discretion but is not a mandatory obligation.
In this case, the domestic relations court originally joined the children
as parties to the post-decree action and appointed a GAL to represent the best
interest of the three children and to act as their attorney. The trial court later
clarified that the GAL was not serving as an attorney for the children citing Ohio
Rules of Superintendence 48.02(E), which precludes the GAL from acting in that
dual capacity in an allocation of parental rights case, but no order rescinding the
earlier decision to join the children as parties or appointing them new counsel has
been identified.
P.K. asks for the children’s lack of counsel to be declared structural
error, but he has not provided any authority for review specific to a child’s right to
counsel in post-decree custody proceedings. Nor has he addressed any of the factors
under Cuyahoga Domestic Relations Loc.R. 40 necessitating legal counsel to be
appointed for the children. Importantly, P.K. has not presented any discussion as
to why the children required legal counsel during the underlying proceedings. It is
not the role of an appellate court to flesh out underdeveloped arguments on behalf
of one of the parties. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-
4034,
19 N.E.3d 900, ¶ 19, citing State v. Bodyke,
126 Ohio St.3d 266, 2010-Ohio-
2424,
933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part),
quoting Carducci v. Regan,
714 F.2d 171, 177 (D.C.Cir.1983). We are limited based
on the argument presented, which superficially describes a constitutional right to
counsel under the federal Constitution.
As the Ohio Supreme Court has concluded, “[t]he court’s authority to
appoint a GAL enables it to protect the child’s interests in innumerable ways.” In re
A.G. at ¶ 75, citing Sup.R. 48(D)(1) (now codified as Sup.R. 48.03 and setting forth
the responsibility of the GAL to represent the best interest of the child) and Glimcher
v. Glimcher, 29 Ohio App.2d 55, 65,
278 N.E.2d 37 (10th Dist.1971). This provides
the domestic relations court “considerable latitude” to “manage the litigation itself
in a manner that will also achieve what is in the child’s best interest.”
Id.
P.K.’s entire argument focuses on the procedural fact that the children
lacked independent counsel, but he has not identified anything in the record
demonstrating that the children were prejudiced or that their best interests were not
adequately represented by their legal guardian and through the appointment of the
GAL acting solely in that capacity. Upon review of the record, it is clear that the GAL
represented the children’s best interest, and nothing demonstrates that
appointment of legal counsel was necessary. There is no error, plain or otherwise.
Related to the GAL’s representation, P.K. also argues that his
obligation to pay half of her fees was in error. P.K. has not cited any authority to
support his claim that there is no procedure authorizing the domestic relations court
to impose the GAL’s fees on the parties. See App.R. 16(A)(7). Inasmuch as the
argument was presented in the conclusory fashion, it must be overruled. In short,
despite the lack of appellate briefing from M.E.K., we cannot conclude that P.K.’s
brief reasonably demonstrates the existence of reversible error with respect to the
children’s right to counsel or the award of fees to the GAL appointed in the
underlying proceedings. The first two arguments are overruled.
And finally, P.K. argues that the domestic relations court erred by
increasing the award of attorney fees without considering the statutory factors, such
as the income disparity favoring M.E.K., and by solely relying on P.K.’s conduct
while at the same time ignoring M.E.K.’s counsel’s dilatory behavior throughout the
same time period, which the magistrate considered as weighing on the decision to
award a lesser amount of fees and expenses than requested by M.E.K.
M.E.K. sought fees and expenses under R.C. 3105.73(B), which
provides that in a post-decree motion or proceeding arising out of a divorce action,
“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.” In determining whether an
award of attorney fees and expenses is equitable, the court may consider the parties’
income, conduct, and any other relevant factors deemed appropriate. R.C.
3105.73(B). “An award of attorney fees under R.C. 3105.73(B) lies within the sound
discretion of the trial court.” Watson v. Watson, 10th Dist. Franklin No. 22AP-729,
2023-Ohio-3719, ¶ 43, citing Roush v. Roush, 10th Dist. Franklin No. 19AP-246,
2019-Ohio-4777, ¶ 15, and Roubanes v. Roubanes, 10th Dist. Franklin No.
14AP-183,
2014-Ohio-5163, ¶ 6. “[I]n order for a party to prevail on a claim for
attorney’s fees, the moving party must demonstrate that the fees were reasonable
and necessary.” Eldridge v. Eldridge, 2d Dist. Greene No. 2018-CA-17, 2019-Ohio-
233, ¶ 31, citing Donese v. Donese, 2d Dist. Greene No. 2000-CA-17,
2000 Ohio App.
LEXIS 4462,
2000 WL 1433872, *4 (Sept. 29, 2000), and Thomas v. Thomas, 2d
Dist. Greene No. 94-CA-18,
1995 Ohio App. LEXIS 1203,
1995 WL 137015, *9
(Mar. 31, 1995).
In this case, the magistrate presented an unflattering, but thorough,
description of the evidence submitted in favor of M.E.K.’s request for $136,000 in
attorney fees and litigation expenses supposedly expended in the post-decree
proceedings. According to the magistrate’s conclusion, “the fee bill was redacted to
the extent that this Court [could not] reasonably determine who provided what
services, and at what rate. Specifically, when reviewing each item, time is noted, but
there is no dollar amount applied to each service.” In addition, M.E.K. included
billing for services rendered in other matters, which were pending before other
courts, based on the description of services rendered. In other line items, the
magistrate noted that the billing included significant research and review periods
for ambiguous services. The magistrate found that “review and organize file” was
billed 35 times for “unreasonable amounts of time” and without providing context
for the services. Despite the noted deficiencies, the magistrate awarded M.E.K.
$12,500 for fees it found to be reasonable and equitable.
M.E.K. objected to the magistrate’s findings of fact and conclusions
of law claiming she was entitled to $130,477.80 in attorney fees and expenses based
on a redacted fee bill because in State ex rel. Dawson v. Bloom-Carroll Local School
Dist., 131 Ohio St.3d 10,
2011-Ohio-6009,
959 N.E.2d 524, ¶ 28, the Ohio Supreme
Court concluded R.C. 149.43(A)(1)(v) exempts a school district from having to
disclose itemized attorney-fee bills through a public records request.4 According to
M.E.K., the magistrate was not authorized to punish her for submitting the “heavily
redacted” fee bill because she had a right to protect her attorney-client privilege
despite her request for fees. She further argued that all the services were reasonable
and necessary according to her attorney’s conclusory testimony to that effect, and
therefore, the magistrate’s decision to award $12,500 was an abuse of discretion.
The domestic relations court sustained M.E.K.’s objection because
P.K. did not object to the fee bill or the reasonableness of the services rendered,
improperly shifting the burden to P.K. to disprove that the requested attorney fees
were reasonable before M.E.K. satisfied her burden to prove the fees were
reasonable and because P.K. engaged in dilatory behavior. Ultimately, the court
modified the magistrate’s decision to award M.E.K. $40,000 for attorney fees but
otherwise adopted the magistrate’s findings of fact on this topic. There is no
4 In Thomasson v. Thomasson, 8th Dist. Cuyahoga No. 108813, 2020-Ohio-3890,
¶ 52, the panel relied on Dawson in concluding that the party against whom attorney fees
were awarded had not demonstrated entitlement to unredacted attorney-fee bills in order
to contest the reasonableness of the fees. That case is limited in application because the
panel expressly concluded that the appellant failed to present an argument. It does not
stand for the proposition that a party seeking attorney fees may redact a description of
the services provided that is necessary to determining whether the requested fees were
reasonable. See, e.g., In re Estate of Weiner, 2d Dist. Montgomery No. 28585, 2020-
Ohio-1527, ¶ 14.
explanation as to how that figure was derived.
In this appeal, P.K. claims the domestic relations court erred in
awarding fees because under R.C. 3105.73(B), fees are not automatic and require the
court to consider both the conduct of the parties and their income in order to
determine if an award of fees is reasonable and equitable. P.K. focuses on the
dilatory behavior of M.E.K.’s counsel of record. That was an issue extensively
considered by the magistrate who concluded that M.E.K.’s counsel contributed to
the delays in the proceeding due to his “intentional and unnecessarily busy
schedule,” which according to the magistrate, delayed the final hearing on the
pending motions for over ten months. Further, P.K. identifies aspects of the record
in which M.E.K.’s counsel displayed animosity toward the magistrate conducting the
hearing.5
5 P.K. is referring to an exchange that occurred during the February 28, 2023
hearing. The magistrate required the parties to conduct the entire examinations of
witnesses when the witnesses were on the stand expressly based on the delays caused by
both parties in the proceeding. P.K. represented himself pro se at the time. M.E.K.’s
counsel objected to that procedure, claiming he was entitled to dictate when a witness
could be called. The magistrate explained the decision, citing M.E.K.’s counsel’s general
past unavailability when scheduling matters in the case. According to the magistrate, if
the witnesses were not examined when on the stand, the hearing would likely be delayed
because counsel rarely consented to timely scheduling citing his busy schedule. The
magistrate described counsel’s behavior as “combative” and in a voice that “is
disrespectful and discourteous.” M.E.K.’s counsel responded: “I will say things
concerning the Court’s handling of this matter, the Court’s lack of understanding the
issues presented in this case, the Court’s inaccurate statements concerning my schedule,
and what has happened in this case, and my general disappointment in the Court’s
handling of this matter.” Counsel went on to accuse the magistrate of being “jealous” of
his success and legal prowess. Toward the end of the monologue, counsel stated that he
meant no offense, but was frustrated by P.K.’s conduct. The magistrate concluded the
hearing with no further commentary.
Although inartfully presented, P.K.’s last argument has merit.
Contrary to the domestic relations court’s conclusion in modifying the fee award,
P.K. objected to the fee bill being submitted in its redacted form during the March 3,
2023 hearing on the matter because it precluded him from challenging the
reasonableness of the fees and expenses. That objection was overruled based on
P.K. having time to review and consider the redacted document. P.K. also
unsuccessfully objected to the fee bill not identifying which employee provided the
stated services in discussing the separately provided hourly rate sheet for M.E.K.’s
counsel’s firm. Upon that objection, however, the magistrate noted that the fee bill
contained no amounts for the services rendered and no distinction as between the
various members of the law firm who provided the services. Instead, M.E.K.
presented a summary of the hourly rate for various employees of the law firm, but
nothing tying those rates to the itemized services. The itemized hours totaled
$127,992.50 for services rendered, with the remaining amount comprised of generic
research and copying expenses, but none of the hours indicated who provided the
services other than “Stafford Law Co., L.P.A.”
M.E.K. failed to file merit briefing. Under App.R. 18(C), this panel is
permitted to “accept the appellant’s statement of the facts and issues as correct and
reverse the judgment if appellant’s brief reasonably appears to sustain such action.”
M.E.K., as the party requesting fees and litigation expenses under R.C. 3105.73(B),
bore the burden to demonstrate the reasonableness of the fees and expenses. There
is no requirement that the opposing party object to the reasonableness of the fees
until the moving party meets their burden of production. See Morrison v. Walters,
1st Dist. Hamilton Nos. C-220643 and C-220644, 2023-Ohio-2887, ¶ 16 (moving
party sufficiently demonstrated the reasonableness of the fees because she provided
an affidavit setting forth “a breakdown of the amount by date and employee billing,
the hourly fee amount for each person who worked on the case, and the time, skill,
and labor involved in incurring the fees”).
On this point, the trial court erred in awarding M.E.K. $40,000 in
attorney fees and litigation expenses based on the stated rationale that P.K. failed to
object to the reasonableness of the services and demonstrated a pattern of improper
conduct. P.K. did in fact object to the billing in question, and according to the
magistrate’s findings of fact, M.E.K. failed to demonstrate the reasonableness of the
services rendered by submitting a redacted fee bill. The burden never shifted to P.K.
to demonstrate the unreasonableness of the fees or services. See Home S. &. L. Co.
v. Evergreen Land Dev., 7th Dist. Mahoning No. 12 MA 215, 2016-Ohio-1248, ¶ 105
(billing entries containing redacted attorney-client information precluded the
magistrate from determining the reasonableness of the requested fees). Further,
upon review of the redacted document, it appears that M.E.K. was attempting to
recoup for all her attorneys’ services from August 2019 through February 2023 —
not all of which pertained to P.K.’s alleged dilatory conduct.
Although there is little doubt that M.E.K. could be entitled to some
fees and expenses based on P.K.’s conduct, the sole question is the amount of that
award. On that point, the domestic relations court’s decision, modifying the
magistrate’s decision, did not provide any explanation as to how the $40,000 was
derived from what was described by M.E.K. and the magistrate as a redacted bill
that precluded the magistrate from assessing the reasonableness of the amount
requested. See In re Estate of Klie, 2017-Ohio-487,
84 N.E.3d 313, ¶ 7 (10th Dist.)
(“[T]he trial court has the authority to determine whether the magistrate’s findings
of fact are sufficient to support the conclusions of law made, and to reach a different
legal conclusion as long as that conclusion is supported by the magistrate’s findings
of fact.”), citing Martin v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
07AP-1006,
2008-Ohio-3166, ¶ 10. Although modifying the award, the domestic
relations court adopted the remainder of the magistrate’s decision, including the
related findings of fact that found the fee bill too redacted to the point of the court
not being able to determine the reasonableness of the requested fees and expenses.
P.K.’s final argument is sustained. The judgment awarding attorney
fees is vacated because P.K.’s brief reasonably appears to sustain that conclusion
based on the record provided. Notwithstanding, a remand for further proceedings
is required in light of the procedural posture of this particular case. As concluded in
Michel v. Michel, 7th Dist. Noble No. 10 NO 376, 2012-Ohio-4037, ¶ 17, although
parties are generally precluded from getting a “second bite at the apple” when it
comes to presenting evidence at trial, there are notable exceptions such as “a
reversal on appeal.” Id. at ¶ 17; but see Chuang Dev. LLC v. Raina,
2017-Ohio-3000,
91 N.E.3d 230, ¶ 54 (10th Dist.) (a party who failed to appear at the evidentiary
hearing cannot rely on Civ.R. 60(B) as a mechanism to supplement the lack of an
evidentiary record). In this case, the domestic relations court overruled P.K.’s
objection to M.E.K.’s reliance on the redacted fee bill and concluded that some
award of fees was necessary. Accordingly, a remand for a new hearing is necessary
in light of M.E.K.’s reliance on the court’s decision that directly impacted the
evidence presented. See, e.g., Ramus v. Ramus, 8th Dist. Cuyahoga Nos. 38148,
38149, 38150, and 38540,
1978 Ohio App. LEXIS 10098, 12 (July 27, 1978)
(affirming the award of attorney fees following a remand from the direct appeal in
which the panel concluded that the original award of attorney fees was based on
insufficient evidence); Baaron, Inc. v. Davidson, 9th Dist. Wayne No. 16AP0052,
2017-Ohio-7783, ¶ 9 (concluding there was insufficient evidence of the
reasonableness of the fees and remanding the matter for further proceedings);
Worley v. Worley, 5th Dist. Licking No. 06-CA-63,
2007-Ohio-252, ¶ 3 (reversing
the imposition of attorney fees based on the lack of evidence but remanding the case
to the trial court for further proceedings on the issue).
Based on the foregoing discussion, the decision of the domestic
relations court is affirmed in part and reversed in part. The decision is affirmed in
all respects except as to the award of attorney fees and litigation expenses. That
award of attorney fees and litigation expenses is reversed and hereby vacated, and
the matter remanded for a new hearing to determine the amount of fees and
litigation expenses M.E.K. incurred as a result of P.K.’s conduct.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.
It is ordered that appellant and appellee share 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
common pleas court 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.
______________________
SEAN C. GALLAGHER, JUDGE
EMANUELLA D. GROVES, J., CONCURS;
LISA B. FORBES, P.J., CONCURS IN PART AND DISSENTS IN PART (WITH
SEPARATE OPINION)
LISA B. FORBES, P.J., CONCURRING IN PART AND DISSENTING IN PART:
I respectfully agree with the majority regarding the disposition of
P.K.’s first and second arguments. I further agree with the majority regarding the
analysis of P.K.’s third argument. However, I would reverse and vacate the attorney
fee and litigation expenses award without remanding to the trial court for a new
hearing. As the majority noted, the lower court found that M.E.K.’s attorney
presented as evidence “a redacted bill that precluded the magistrate from assessing
the reasonableness of the amount requested.” I agree with the majority that M.E.K.
failed to meet her burden of demonstrating the reasonableness of the fees and
expenses. M.E.K. should not get a second bite at the apple after failing to produce
sufficient evidence at trial. See Michel, 7th Dist. Noble No. 10 NO 376, 2012-Ohio-
4037, at ¶ 17 (“Parties do not generally get a ‘second bite at the apple’ when it comes
to presenting evidence at trial.”); Chuang Dev. L.L.C., 2017-Ohio-3000,
91 N.E.3d
230, at ¶ 54 (10th Dist.) (finding that, when a party failed to present evidence at a
hearing and then attempted to vacate the judgment, “[s]uch ‘second bites at the
apple’ are not authorized by the Rules of Civil Procedure”).
