Opinion
Appellate Case No. 2016-CA-18
06-23-2017
RANDALL STREMMEL Plaintiff-Appellee v. KATRINA DEMMERY Defendant-Appellant
MICHAEL J. JUREK, Atty. Reg. No. 0082643, MICHAEL D. RICE, Atty. Reg. No. 0090085, and J. STEPHEN JUSTICE, Atty. Reg. No. 0063719, Dungan & LeFevre Co., L.P.A., 210 West Main Street, Troy, Ohio 45373 Attorneys for Plaintiff-Appellee ROBERT M. HARRELSON, Atty. Reg. No. 0003302, and WILLIAM M. HARRELSON II, Atty. Reg. No. 0087957, Faust, Harrelson, Fulker, McCarthy & Schlemmer, LLP, 12 South Cherry Street, Troy, Ohio 45373 Attorneys for Defendant-Appellant
Trial Court Case No. 11-DR-509 (Domestic Relations from Common Pleas Court)
OPINION
MICHAEL J. JUREK, Atty. Reg. No. 0082643, MICHAEL D. RICE, Atty. Reg. No. 0090085, and J. STEPHEN JUSTICE, Atty. Reg. No. 0063719, Dungan & LeFevre Co., L.P.A., 210 West Main Street, Troy, Ohio 45373 Attorneys for Plaintiff-Appellee ROBERT M. HARRELSON, Atty. Reg. No. 0003302, and WILLIAM M. HARRELSON II, Atty. Reg. No. 0087957, Faust, Harrelson, Fulker, McCarthy & Schlemmer, LLP, 12 South Cherry Street, Troy, Ohio 45373 Attorneys for Defendant-Appellant TUCKER, J.
{¶ 1} Defendant-appellant Katrina Demmery appeals from a judgment of the Miami County Court of Common Pleas denying her motion for attorney fees. Demmery sought an award of fees after the trial court determined that her ex-husband, Randall Stremmel, failed to exercise reasonable diligence with regard to service of process on a post-decree motion for modification of parental rights. Demmery contends that the trial court abused its discretion in determining that Stremmel's actions did not rise to the level of frivolous conduct.
{¶ 2} From our review of the record, we cannot say that the trial court abused its discretion. The evidence does not support a finding of frivolous conduct as required by R.C. 2323.51. Accordingly, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 3} Randall Stremmel and Katrina Demmery were married in 2000. They have one minor child resulting from the marriage. Stremmel initiated divorce proceedings in December 2011. The parties were divorced in 2012. A Shared Parenting Agreement was included as a part of the Judgment of Divorce. In that Agreement, Demmery was designated as the residential parent. She resided with the child at the marital residence located in Piqua.
{¶ 4} Stremmel subsequently moved to Texas and remarried. On November 10, 2014, Demmery and the child moved to Florida. On January 14, 2015, Stremmel filed a motion to modify parental rights in which he sought sole custody of the child. A motion for service by publication was filed that same date. Attached to the motion was an affidavit from Stremmel's attorney in which the attorney averred that Demmery's address was unknown, and that it could not, with reasonable diligence, be ascertained. The motion for service by publication was granted.
{¶ 5} A hearing on the motion for modification was held, following which custody was awarded to Stremmel. After the child traveled to visit Stremmel for summer break, Stremmel informed Demmery that he had obtained custody.
{¶ 6} On August 29, 2015 Demmery filed a motion, under Civ.R. 60(B), to vacate the custody judgment. In her motion, Demmery argued that Stremmel had not made reasonably diligent efforts to ascertain her address, and that he, in fact, knew that she had been living with her father for a period of time after moving to Florida. In an affidavit attached to the motion, Demmery averred that she moved to Florida on November 10, 2014, and that she informed Stremmel, via text message, that she would live with her dad for "awhile." She also averred that on December 9, 2014 she informed Stremmel by text that she lived 90 minutes away from Disney World. She further averred that on January 17, 2015, three days after he filed his motion, she texted Stremmel that she would not give him her address because she believed Stremmel's wife was stalking her. She averred that had she known Stremmel was going to file a motion for custody, she would have provided her address.
{¶ 7} The magistrate set the matter for a hearing. Stremmel filed a response to the motion to vacate. He attached an affidavit and copies of text messages. In his affidavit, he recited the actions he had taken to obtain Demmery's address. Stremmel averred that on November 20, 2014, he located a Florida traffic ticket issued to Demmery that gave her father's address as her residence. However, he did research online and discovered that Demmery's father lived in an age-restricted retirement community. He averred that he, thus, did not believe that Demmery was residing there. He averred that on December 9, 2014, while attempting to arrange Christmas visitation with the child, he asked Demmery for her address via text message. He also asked for an address so that he could ship presents to the child. Demmery did not provide an address. His subsequent text messages concerning visitation asked where to meet to exchange the child. As noted, Demmery's text messages also indicated that she was living 90 minutes away from Disney World, possibly in Vero Beach where a Disney resort hotel is located. Stremmel determined that Demmery's father's residence was only 60 minutes from Disney World. The record indicates that Demmery's text messages were evasive, and that she did not inform Stremmel of a place to make the exchange until 1:00 p.m. on the day of the exchange at which time she informed Stremmel to meet her in a retail parking lot in Fort Pierce, Florida which is south of Vero Beach. Stremmel further averred that he had contacted the Piqua post office seeking information regarding Demmery's forwarding address, but he was informed that the information could not be released. He further averred that he contacted the child's school in Piqua, on December 3, to determine whether school records had been requested by any schools in Florida. Finally, Stremmel averred that in September 2015, following discovery, his attorney obtained a copy of a lease executed by Demmery confirming that she had leased an apartment in Vero Beach as of November 22, 2014.
According to the record, the child's records were requested by, and forwarded to, a school located in Vero Beach, Florida on January 14, 2015. However, as late as January 26, 2015, the Assistant Vice Principal of the school informed Stremmel, by email, that the records had not been requested. The Assistant Vice Principal sent an e-mail to Stremmel on March 27, 2015 apologizing for the late reply, and noted that the records had been requested in January.
{¶ 8} No hearing was held on the motion to vacate. However, on October 21, 2015, the magistrate filed a decision finding that Stremmel had not exercised reasonable diligence in seeking an address for service of process upon Demmery. The magistrate specifically noted that Stremmel made just one direct request for an address in a text message to Demmery. The magistrate further noted that while other texts from Stremmel might have elicited an address from Demmery, he did not make any more specific requests. The magistrate further found that reasonable diligence required Stremmel to send letters to both the Ohio address as well as to Demmery's father's address. The magistrate noted that the lease found after the motion for modification was filed had no bearing on the issue. The magistrate concluded that had Stremmel exercised reasonable diligence, he might have verified the Vero Beach address prior to filing his motion to modify parental rights. The magistrate granted the motion to vacate.
{¶ 9} Stremmel filed objections to the magistrate's decision. Demmery filed a memorandum in opposition in which she argued that Stremmel lied regarding whether he was provided notice that she was moving. She also indicated that he lied about the level of contact he had with her.
Demmery's argument in this pleading seems to conflate knowledge with the notice required by the Shared Parenting Agreement. During the hearing, Stremmel testified that he did not receive notification of the move, but that Demmery did tell him about the move. It is uncontested that Demmery failed to file a notice of intent to relocate with the court as required by the Shared Parenting Agreement. --------
{¶ 10} On January 12, 2016, the trial court issued a decision affirming the magistrate's decision. The trial court stated that in ruling on the objections, it was able to "ascertain the credibility of the parties from their affidavits, the transcript [of the hearing on the motion for modification], and exhibits and makes its findings in accordance with such determinations." Dkt. at 111. The trial court acknowledged that Demmery had failed to file a notice of intent to relocate or provide an address as required by the Shared Parenting Agreement, but agreed with the magistrate that Stremmel did not exercise reasonable diligence in attempting to locate Demmery. The matter was remanded to the magistrate for further proceedings. Stremmel did not appeal.
{¶ 11} In February 2016, Demmery filed a motion for an award of attorney fees in which she argued that Stremmel's failure to exercise reasonable diligence in ascertaining an address for service of process, along with filing a motion for service by publication, amounted to frivolous conduct pursuant to R.C. 2323.51(A)(2)(a)(ii), (iii) and (iv). Following discovery, a hearing was conducted before the magistrate.
{¶ 12} Jack Hemm was Stremmel's attorney at the time of the request for service by publication was requested. Hemm testified that Stremmel and he discussed all of Stremmel's attempts to locate an address, which included ascertaining that Demmery's father lived in an age-restricted community that is closer to Disney World than Demmery indicated her residence to be. Hemm noted that Stremmel directly asked Demmery for her address, and that he contacted both the Piqua Post Office and the child's school in Piqua. Hemm's testimony indicated that he did not believe Demmery was residing with her father. He based this conclusion upon Demmery's failure to provide the appropriate notification, her refusal to provide Stremmel with an actual address, and her insistence that exchanges of the child take place 30 minutes from her father's residence.
{¶ 13} The magistrate granted the motion and awarded attorney fees in the amount of $13,310.05. In doing so, the magistrate found that Stremmel's motion for service by publication was frivolous conduct because it was not warranted under existing law; could not be supported by a good faith argument for an extension, modification or reversal of existing law; nor could the conduct be supported by a good faith argument for the establishment of new law. Stremmel filed objections. While the objections were pending, the parties entered into an agreed order designating Stremmel as the residential parent.
{¶ 14} On September 13, 2016, the trial court issued a decision sustaining Stremmel's objections and overruling the magistrate's award of fees. The trial court gave credence to Hemm's testimony, and concluded that Hemm had testified in detail as to the reasoning behind his decision to proceed with service by publication. Based upon this testimony, the trial court found that service by publication was not wholly unwarranted.
{¶ 15} The trial court further noted that the parties' Shared Parenting Agreement, R.C. 3109.051(G)(1), and Miami County Local Rule 8.13(F)(1) required Demmery to provide notification of her relocation, and that she failed to comply. The court stated that this issue could have been avoided had Demmery merely complied with the notification requirements. The trial court went on to state that "[i]f [Stremmel] had not made any effort to find [Demmery's] residential address or had [Demmery] complied with the court orders regarding residential address notification and [Stremmel] proceeded with service by publication, notwithstanding actual notice a finding of frivolous conduct would have been justified." Dkt. No. 202. Thus, the trial court concluded that while Stremmel may not have exercised reasonable diligence with regard to service, his decision to pursue service by publication cannot be equated with a finding of frivolous conduct.
{¶ 16} Demmery filed a timely appeal.
II. The Trial Court Did Not Abuse Its Discretion in Determining That the
Evidence Does Not Support a Finding of Frivolous Conduct.
{¶ 17} Demmery's First and Second Assignments of Error state as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT NEITHER APPELLEE, RANDALL STREMMEL, NOR HIS COUNSEL COMMITTED FRIVOLOUS CONDUCT PURSUANT TO R.C. 2323.51 WHERE THE EVIDENCE DEMONSTRATED THAT STREMMEL AND HIS ATTORNEY, JACK HEMM, HAD ACTUAL KNOWLEDGE OF KATRINA DEMMERY'S RESIDENTIAL ADDRESS BUT DID NOT ATTEMPT ANY METHODS OF REGULAR SERVICE PRIOR TO ATTEMPTING SERVICE BY PUBLICATION.
THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT NEITHER APPELLEE, RANDALL STREMMEL, NOR HIS COUNSEL COMMITTED FRIVOLOUS CONDUCT PURSUANT TO R.C. 2323.51 WHERE THE EVIDENCE DEMONSTRATED THAT STREMMEL PURPOSEFULLY EVADED ANY OBLIGATION TO ATTEMPT REGULAR SERVICE ON KATRINA DEMMERY UPON HIS DISCOVERY OF AN ADDRESS AND INSTEAD TOOK ACTIONS, PURPORTEDLY TO LOCATE A RESIDENTIAL ADDRESS FOR HER, WHICH WERE NOT REASONABLY DILIGENT.
{¶ 18} Demmery contends that the trial court abused its discretion in finding that Stremmel's conduct was not frivolous. She argues that since Stremmel was aware of her father's address, he was required by Civ.R. 4.4 to effectuate service other than by publication. She further argues that the trial court erred by giving "unfair weight" to the testimony of Stremmel's attorney, which she contends does not establish reasonable diligence. She finally argues that her failure to provide a notification of change of address and relocation could not be considered as a basis for concluding that Stremmel's actions were not frivolous.
{¶ 19} We begin by noting that the trial court's previous determination that Stremmel failed to exercise reasonable diligence in attempting to ascertain an address for Demmery was not the subject of appeal. We, therefore, accept this finding as it affects the isues in this appeal.
{¶ 20} "Frivolous conduct" is the conduct of a party to a civil action or of the party's counsel that satisfies any of the following four criteria:
(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably
based on a lack of information or belief.R.C. 2323.51(A)(2)(a)(i)-(iv).
{¶ 21} There is no single standard of review applicable to R.C. 2323.51 cases. John Breen v. Total Quality Logistics, 10th Dist. Franklin No. 16AP-3, 2017-Ohio-439, ¶ 11. Instead, "the standard an appellate court uses depends upon whether the trial court's determination resulted from factual findings or a legal analysis." Id. R.C. 2323.51(A)(2)(i), (iii) and (iv) require a trial court to make factual determinations which are given deference so long as there is competent, credible evidence to support those findings. Id. "By contrast, a determination under R.C. 2323.51(A)(2)(ii) that conduct is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law requires a legal analysis and is, therefore, subject to de novo review." Id.
{¶ 22} Demmery's motion for attorney fees asserts R.C. 2323.51(A)(2)(a)(ii), (iii) and (iv) to support the motion. The magistrate determined that Stremmel's conduct was frivolous under R.C. 2323.51(A)(2)(a)(ii) and, it seems, (i). R.C. 2323.51(A)(2)(a)(i) speaks to conduct which has the purpose to injure or harass another party or is taken for some other improper purpose, including to cause delay or an increase in the cost of litigation. The trial court only addressed R.C. 2323.51(A)(2)(a)(ii), and the parties' briefs do not address subsection (i). We find, under the facts of this case and since Demmery does not assert frivolous conduct under R.C. 2323.51(A)(2)(a)(i), there is no reason to address that section. The trial court found that Stremmel's actions were not frivolous under R.C. 2323.51(A)(2)(a)(ii). We agree.
{¶ 23} This Court has previously noted "that the frivolous conduct implicated by R.C. 2323.51(A)(2)(ii) involves proceeding on a legal theory which is wholly unwarranted in law." State Auto Mut. Ins. Co. v. Tatone, 2d Dist. Montgomery No. 21753, 2007-Ohio-4726, ¶ 8. The test is "whether no reasonable lawyer would have brought the action in light of the existing law. In other words, a claim is frivolous if it is absolutely clear under the existing law that no reasonable lawyer could argue the claim." Hickman v. Murray, 2d Dist. Montgomery No. 15030, 1996 WL 125916, *5 (Mar. 22, 1996). Clearly, service by publication is warranted under existing law.
{¶ 24} Hemm's testimony establishes his belief that Stremmel reasonably, but unsuccessfully, attempted to ascertain an address. Hemm set forth what actions were taken to ascertain Demmery's address, as well as why he thought service by publication was appropriate. The magistrate made no reference to Hemm's testimony, its credibility or its lack thereof. We find nothing inherently incredible in Hemm's testimony, and thus, cannot fault the trial court in giving it credence. Demmery did not present any evidence to rebut the reasonableness of Hemm's decisions. Nor does the evidence on this record establish that no reasonable lawyer could argue for service by publication under these facts.
{¶ 25} We next turn to Demmery's claim that Stremmel's actions were frivolous as defined under R.C. 2323.51(A)(2)(a)(iii) and (iv). Since the issue at hand is whether Stremmel had a factual basis for requesting service by publication, these are the more appropriate avenues for seeking fees in this action. However, even under these standards for frivolous conduct, we would conclude that Demmery's claim must fail. "R.C. 2323.51(A)(2)(a)(iii) presents a factual question; namely, whether a party's allegations have evidentiary support." Carasalina LLC v. Bennett, 10th Dist. Franklin No. 14AP-74, 2014-Ohio-5665, ¶ 32. "[A] party only needs minimal evidentiary support for its allegations or factual contentions in order to avoid a frivolous conduct finding." Id. at ¶ 36. We conclude that the evidence cited above supports a finding that Stremmel did not act frivolously.
{¶ 26} We reject Demmery's argument that because Stremmel was aware of her father's address he was required to effect personal service at that address. As noted, there is evidence in this record to support a reasonable conclusion that Demmery was not residing at that address. Thus, her claim that Stremmel had actual notice of her residence lacks merit. We also reject Demmery's argument that the trial court improperly used her failure to provide the appropriate relocation notice as a basis for finding that Stremmel's conduct was not frivolous. We find this was relevant to the issue given that Demmery insists that Stremmel had actual notice of her address.
{¶ 27} We conclude that this record supports the trial court's finding that Stremmel's actions do not rise to the level of frivolous conduct. Accordingly, Demmery's First and Second Assignments of Error are overruled.
III. The Evidentiary Issue Is Moot.
{¶ 28} Demmery's Third Assignment of Error provides as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT APPELLANT KATRINA DEMMERY'S ATTORNEY FEE BILLING STATEMENT WAS INADMISSIBLE PURSUANT TO EVID.R. 1006.
{¶ 29} Demmery contends that her exhibit concerning attorney fees was properly admissible, and that the trial court erred by concluding otherwise.
{¶ 30} Given our disposition of Demmery's First and Second Assignments of Error, we conclude that this argument has been rendered moot. Thus, the Third Assignment of Error is overruled as moot.
IV. Conclusion
{¶ 31} All of Demmery's Assignments of Error are overruled. The judgment of the trial court is Affirmed. HALL, P.J. and FROELICH, J., concur. Copies mailed to: Michael J. Jurek
Michael Rice
J. Stephen Justice
Robert M. Harrelson
William M. Harrelson II
Hon. Jeannine N. Pratt