Opinion
L-22-1302
04-28-2023
J. H., Plaintiff-Appellee/ Cross-Appellant, v. J. F., Defendant-Appellant/ Cross-Appellee.
J.H., pro se. Michael R. Bassett, for appellant/cross-appellee.
Civil Appeal from the Lucas County Court of Common Pleas Domestic Relations Division Case No. DR-12-0193
J.H., pro se.
Michael R. Bassett, for appellant/cross-appellee.
JOURNAL ENTRY AND OPINION
MARY J. BOYLE, J.
{¶1} In this appeal, appellant/cross-appellee, J.F., argues that the trial court abused its discretion in the parties' post-decree divorce case by declining to find that appellee/cross-appellant, J.H., engaged in frivolous conduct regarding the enrollment of their minor child in private school. For the reasons set forth below, we affirm the trial court's judgment.
I. Facts and Procedural History
{¶ 2} J.H. (father) and J.F. (mother) were married in 2005 and have three children as issue of their marriage: K.H. (d.o.b. February 20, 2008), R.H. (d.o.b. November 23, 2009), and F.H. (d.o.b. May 20, 2011). The parties 2014 divorce decree incorporated a shared parenting plan designating J.F. as the residential parent for school purposes. The parties' differences continued following their divorce and, in November 2017, J.H. filed a motion to terminate the shared parenting plan and be designated residential parent of the children. In February 2019, J.F. filed a motion for placement of K.H. into St. Ursula Academy ("St. Ursula") for the following school year.
{¶ 3} In May 2019, the parties entered into a consent judgment entry regarding K.H.'s placement at St. Ursula. The parties agreed that K.H. would attend St. Ursula for the 2019-2020 school year and would reevaluate K.H.'s schooling in the "Spring of 2020, no later than the date that the parties will need to register the child for the following school year * * * to determine if the child should remain at St. Ursula for further education." (Judgment entry, May 6, 2019.) The parties further agreed that J.F. shall pay the costs of tuition for St. Ursula and shall not seek reimbursement from J.H.
{¶ 4} The parties' litigation continued after the May 2019 judgment entry regarding the termination of the shared parenting plan. The court held a trial on the matter in December 2019. In March 2020, the court entered an order terminating the shared parenting plan and designating J.H. as the residential parent and legal custodian of R.H. and F.H., and J.F. as the residential parent of K.H. K.H. would reside with J.F. at all times and R.H. and F.H. would reside with each parent with equal parenting time following two months from the journalization of the judgment entry. The court found that J.H. shall determine where R.H. and F.H. attend school and J.F. shall determine where K.H. attends school with J.F. responsible for K.H.'s private school tuition. The court further found that "the minor children have been negatively influenced by [J.F.] and [maternal] grandmother regarding [J.H.] and their relationship with [J.H.]" and found J.F. in contempt for violating the court's orders and shared parenting plan. (Judgment entry, Mar. 17, 2020.)
{¶ 5} The litigation between the parties continued following the court's March 2020 order, including an appeal of the court's decision by J.F. in J.H. v. J.F., 6th Dist. Lucas No. L-20-1077, 2021-Ohio-24. J.H. cross-appealed in the event that the trial court's judgment was reversed, challenging the trial court's denial of his motion for recovery of guardian ad litem ("GAL") and expert fees. On appeal, we affirmed the order designating J.H. the residential parent of the two children and the award of attorney fees to J.H., but remanded for further proceedings as to the amount. Id. at ¶ 2. We further found that the issue raised in J.H.'s cross-assignment of error moot. Id.
{¶ 6} Several motions were filed within the first year following the March 2020 judgment entry, including motions to stay, motions for show cause, and motions to modify visitation. One of these motions was J.F.'s motion filed in February 2021 seeking to enroll R.H. at St. Ursula with her sister, K.H. In July 2021, the parties agreed that R.H. will attend St. Ursula for the 2021-2022 school year, with J.F. solely responsible for all costs. The parties also acknowledged that "there are no changes to the decisionmaking [sic] authority regarding the children's education per this Court's order of March 17, 2020, subject to the jurisdiction of this Court." (Judgment entry, July 21, 2021.)
{¶ 7} In October 2021, J.F. filed a motion to re-enroll R.H. and enroll F.H. at St. Ursula for the 2022-2023 school year. In J.H.'s November 23, 2021 response to J.F.'s motion, J.H. stated that he concurred with F.H.'s enrollment at St. Ursula for the 2022-2023 school year at J.F.'s sole expense, making J.F.'s motion moot and argued that the court should decline from making this decision because he is the residential parent responsible for F.H.'s school decisions. We note that "20222023" was handwritten on the response J.H. filed with the court.
{¶ 8} On May 19, 2022, which was prior to the court issuing a ruling on J.F.'s October 2021 motion, J.F. filed a motion for an award of attorney fees for frivolous conduct under R.C. 2323.51. In her motion, J.F. alleged that J.H. has "refused to give a simple yes or no answer as to whether he would allow F.H. to attend St. Ursula to the point that it was necessary to file a motion for the Court to intervene." J.F. requested a hearing and sanctions against both J.H. and his attorney.
{¶ 9} In response to J.F.'s motion, the court issued an order stating that under "Civ.R. 7(B)(2), the Court will rule on [J.F.'s] Motion by non-oral hearing. [J.H.] may file a response to the Motion within fourteen (14) days of the filing of this Order. Thereafter, the Court will issue an Order based on the filings[.]" (Judgment entry, May 24, 2022.) J.H. filed his memorandum in opposition to J.F.'s motion on June 3, 2022, stating that J.F.'s motion has no basis in law. J.H. noted that he agreed to allow F.H. to attend private school in his November 23, 2021 filing. He argued that his alleged inaction of signing a consent entry did not amount to "frivolous conduct" as defined under R.C. 2323.51(A)(1). On June 7, 2022, J.F. filed her memorandum in reply to J.H.'s response.
{¶ 10} The court issued its decision denying J.F.'s motion for frivolous conduct and attorney fees in December 2022. In its decision, the court acknowledged that in the March 17, 2020 judgment entry, J.H. was designated as the residential parent for school purposes for F.H. and R.H., and in J.H.'s November 2021 response, he stated that he did not object to the children's enrollment at St. Ursula. As a result, the court found that J.H. "does not have a duty to respond to [J.F.'s] requests or inquiries as to school enrollment preferences for the minor children in question. [J.H'.s] non-response or inaction is not frivolous conduct pursuant to ORC 2323.51." (Judgment entry, Dec. 8, 2022.)
{¶ 11} It is from this order that J.F. appeals, raising the following two assignments of error for review:
Assignment of Error One: The trial court's finding that [J.H.] did not engage in frivolous conduct because he did not have a duty to respond to his co-parent's requests or inquiries as to school enrollment preferences for the minor children constituted an abuse of discretion
Assignment of Error Two: The trial court erred in denying [J.F.'s] motion without a hearing, as the motion for attorney's fees demonstrated merit.
II. Law and Analysis A. Frivolous Conduct
{¶ 12} In the first assignment of error, J.F. argues that the court abused its discretion by denying her motion for frivolous conduct.
{¶ 13} R.C. 2323.51 provides a mechanism for an award of sanctions for frivolous conduct in civil litigation. Under R.C. 2323.51(B)(1), a court may award reasonable attorney fees to any party in a civil action adversely affected by frivolous conduct. Thus, under the statute, the court must determine whether the claim was frivolous; whether the aggrieved party was adversely affected; and what amount, if any, of reasonable attorney fees should be awarded to the aggrieved party. Sigmon v. Southwest Gen. Health Ctr., 8th Dist. Cuyahoga No. 88276, 2007-Ohio-2117, ¶ 14, discretionary appeal not allowed, 115 Ohio St.3d 1421, 2007-Ohio-5056, 874 N.E.2d 538, citing Lable &Co. v. Flowers, 104 Ohio App.3d 227, 661 N.E.2d 782 (9th Dist. 1995); Ceol v. Zion Industries, Inc., 81 Ohio App.3d 286, 610 N.E.2d 1076 (9th Dist. 1992). Because the statute vests the decision to award sanctions, including an award of reasonable attorney fees to the court, we will not reverse a lower court's decision on whether to award sanctions under R.C. 2323.51 absent an abuse of discretion. Resources for Healthy Living, Inc. v. Haslinger, 6th Dist. Wood No. WD-10-073, 2011-Ohio-1978, ¶ 26, citing Gallagher v. AMVETS Post 17, 6th Dist. Erie No. E-09-008, 2009-Ohio-6348. An abuse of discretion occurs when a court exercises "its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority." Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
{¶ 14} Relevant to the instant case, R.C. 2323.51(A)(1)(a) defines "conduct" as "the taking of any other action in connection with a civil action" that becomes "frivolous conduct" when "[i]t 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." R.C. 2323.51(A)(2)(a)(i).
{¶ 15} Relying on the above definition, J.F. contends that J.H.'s conduct was frivolous because J.H., as the person vested with decision-making authority, should have provided an answer so that J.F. could enroll F.H. at St. Ursula. J.F. claims that J.H.'s November 2021 response regarding F.H. was for the 2021-2022 school year, not the 2022-2023 school year, which she specifically referenced in her motion regarding F.H.'s school enrollment. We note that both J.F. and J.H. state that J.H.'s initial and corrected version of his response, which was served to J.F.'s counsel, contained a typographical error referring to the "2021-2022" school year for F.H. J.H. corrected this error in the response he filed with the court on November 23, 2021, with the year "2022-2023" handwritten on the motion. His response states:
Plaintiff, [J.H.], and hereby responds to the Motion, filed by Defendant, [J.F.], on October 25, 2021, requesting that the Court order that F.H. attend St. Ursula Academy. [J.H.] requests that the Court decline to issue such an order for two reasons: first, [J.H.] concurs with [F.H.'s] enrollment at St. Ursula Academy for the 2022-2023 school years at [J.F.'s] sole expense and set forth in her Motion, and, thus, the Motion is moot; and second, even if [J.H.] did not concur with her enrollment, this the type of parenting decision that a court should decline to make.
(Plaintiff's response to motion re: school enrollment, Nov. 21, 2021.)
{¶ 16} Here, the court acknowledged that J.H. was designated as the residential parent for school purposes for F.H. and R.H., and in J.H.'s November 2021 response, he stated that he did not object to the children's enrollment at St. Ursula. As a result, the court found that J.H. "does not have a duty to respond to [J.F.'s] requests or inquiries as to school enrollment preferences for the minor children in question. [J.H'.s] non-response or inaction is not frivolous conduct pursuant to ORC 2323.51." (Judgment entry, Dec. 8, 2022.)
{¶17} Based on the foregoing, it is clear that the court considered J.F.'s arguments and rejected them. J.H.'s response filed with the court reveals that he did concur with F.H.'s enrollment at St. Ursula for the 2022-2023 school year. Therefore, we decline to find that the court exercised its judgment in an "unwarranted way."
{¶ 18} Accordingly, the first assignment of error is overruled.
B. Attorney Fees
{¶ 19} In the second assignment of error, J.F. argues that her motion for attorney fees demonstrated merit and, as a result, she was entitled to a hearing on her motion. She contends that she first realized that J.H. filed a different response than what her attorney received when J.H. filed his June 3, 2022 response claiming that he concurred with the F.H. enrollment at St. Ursula. In her reply to J.H.'s motion, J.F. noted the error and how J.H. "had gone to no trouble to correct it." J.F. contends that J.H. allowed a conflict to appear when there was none and did nothing to resolve the issue.
{¶ 20} We note that an evidentiary hearing on a motion for sanctions under R.C. 2323.51 is required only where a motion demonstrates "'arguable merit.'" Smith v. Anderson, 6th Dist. Lucas No. L-22-1081, 2023-Ohio-108, ¶ 12, quoting Gitler v. Cadle Co., 6th Dist. Lucas No. L-03-1129, 2004-Ohio-220, ¶ 13. "In cases where the court has sufficient knowledge of the circumstances for the denial of the requested relief, it need not waste judicial resources on hearings that are 'perfunctory, meaningless, or redundant.'" Gitler at ¶ 13, quoting Smith v. Baumgartner, et al., 6th Dist. Ottawa Nos. OT-01-018 and OT-01-014, 2002-Ohio-232, ¶ 24, citing Huddy v. Toledo Oxygen &Equip. Co., 6th Dist. Lucas No. L-91-328, 1992 Ohio App. LEXIS 2390 (May 8, 1992). "[A] finding of frivolous conduct under R.C. 2323.51 is determined without reference to what the individual knew or believed." Smith at ¶ 16, citing Wauseon v. Plassman, 6th Dist. Fulton No. F-96-003, 1996 Ohio App. LEXIS 5168 (Nov. 22, 1996).
{¶ 21} A review of the record in the instant case reveals that J.F.'s motion failed to demonstrate "arguable merit." There is no evidence demonstrating that the typographical error was anything other than unintentional. Furthermore, in May 2022, the trial court advised the parties that it was going to rule on J.F.'s motion by non-oral hearing as set forth in Civ.R. 7(B)(2), which provides that "[t]o expedite its business, the court may make provision by rule or order not inconsistent with these rules for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition." Here, the trial court was well-versed with J.F.'s claims, as well as the history between J.F. and J.H. and the litigious nature between the parties. The court allowed the parties to brief the issue and acknowledged those pleadings in its decision. Therefore, we find that the trial court did not abuse its discretion when it denied J.F.'s motion for attorney fees without a hearing.
{¶ 22} The second assignment of error is overruled.
C. App.R. 23 - Damages for Delay
{¶ 23} J.H. asks this court to award him damages under App.R. 23, which provides, "If a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs." He contends that J.F.'s appeal is frivolous and her sole purpose in filing the appeal was to "create a publicly accessible forum for her [to] file her version of the facts disparaging and vilifying her attorney-forum husband." In J.F.'s appellate reply brief, J.F. contends there is no merit to J.H.'s argument. We decline to find that this appeal is frivolous and award J.H. damages under App.R. 23.
III. Conclusion
{¶ 24} The trial court did not abuse its discretion when it denied J.F.'s motion for an award of attorney fees for frivolous conduct under R.C. 2323.51. J.H. was designated as the residential parent for school purposes for F.H. and R.H., and in J.H.'s November 2021 response filed with the court, he stated that he did not object to the children's enrollment at St. Ursula for the 2022-2023 school year. Furthermore, the trial court did not abuse its discretion in ruling on the motion without a hearing. J.F.'s motion did not demonstrate "arguable merit," necessitating a hearing, and the court was authorized under Civ.R. 7(B)(2) to rule on the motion without a hearing.
{¶ 25} Accordingly, the judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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. See also 6th Dist.Loc.App.R. 4.
EILEEN A. GALLAGHER, P.J., MARY J. BOYLE, J.,SEAN C. GALLAGHER, J., CONCUR.
(Sitting by Assignment: Eileen A. Gallagher, P.J., Mary J. Boyle, J., and Sean C. Gallagher, J., of the Eighth District Court of Appeals.)