[Cite as Deitz v. Deitz, 2017-Ohio-8354.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




PAUL DEITZ,

        PLAINTIFF-APPELLEE,                                CASE NO. 14-17-05

        v.

JULIE DEITZ,                                               OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Union County Common Pleas Court
                             Trial Court No. 10 DR 0010

                                       Judgment Affirmed

                            Date of Decision: October 30, 2017




APPEARANCES:

        Thomas M. Tyack for Appellant

        Eugene R. Butler for Appellee
Case No. 14-17-05


PRESTON, P.J.

         {¶1} Defendant-appellant, Julie S. Deitz (“Julie”), appeals the April 16, 2017

judgment entry of the Union County Court of Common Pleas, Domestic Relations

Division. For the reasons that follow, we affirm.

         {¶2} Plaintiff-appellee, Paul Deitz (“Paul”), and Julie were married in 2003

and were divorced in 2011. (Doc. No. 80); Deitz v. Deitz, 3d Dist. Union No. 14-

11-06, 2012-Ohio-130, ¶ 2. One child was born as issue of the marriage. (Id.); Id.

Paul appealed the trial court’s final divorce decree.1 (Doc. No. 84); Deitz at ¶ 5.

We affirmed the trial court’s final divorce decree on January 17, 2012. Deitz at ¶

13.

         {¶3} From 2013 through 2015, the parties filed a number of additional

motions that are not the subject of this appeal. (See Doc. Nos. 90, 106, 111, 114,

135, 143, 160, 163, 164, 173).

         {¶4} On May 13, 2016, Paul filed a motion requesting that the trial court find

Julie in contempt for failing to provide to him the appropriate form for him to claim

a federal tax exemption for the child. (Doc. No. 197). On November 7, 2016, Paul

filed a motion requesting that the trial court “allow [him] the use of the child for

income tax purposes in both odd and even years until such time as there exists a



1
 In Paul’s appeal of the final divorce decree, this court recited much of the factual background of this case,
and we will not duplicate those efforts here. See Deitz v. Deitz, 3d Dist. Union No. 14-11-06, 2012-Ohio-
130.

                                                     -2-
Case No. 14-17-05


basis for the further post decree action such as [Julie’s] gainful employment.” (Doc.

No. 209).

       {¶5} On November 18, 2016, Julie filed a motion requesting that the trial

court award her attorney fees because “there is a substantial disparity in income and

[she] has been subjected to ongoing litigation by [Paul].” (Doc. No. 212). Paul

filed a memorandum in opposition to Julie’s motion for attorney fees on November

21, 2016. (Doc. No. 213).

       {¶6} After a hearing on December 5, 2016, the trial court’s magistrate issued

his decision on January 5, 2017 finding Julie in contempt of court for failing to

provide Paul the appropriate tax-exemption form; granting Paul attorney fees

resulting from Julie’s contempt of court; reallocating the tax dependency exemption

for the child to Paul for each tax year; and denying Julie’s motion for attorney fees.

(Doc. No. 224). Julie filed her objections to the magistrate’s decision on January

17, 2017. (Doc. No. 227). On February 2, 2017, Paul filed a memorandum in

opposition to Julie’s objections to the magistrate’s decision. (Doc. No. 228).

       {¶7} On February 2, 2017, the trial court issued its order overruling Julie’s

objections to the magistrate’s decision. (Doc. No. 229). On April 6, 2017, the trial

court issued its entry finding Julie in contempt of court; awarding Paul attorney fees

associated with Julie’s contempt of court; reallocating the tax dependency

exemption; and denying Julie’s motion for attorney fees. (Doc. No. 230).


                                         -3-
Case No. 14-17-05


       {¶8} Julie filed her notice of appeal on May 4, 2017. (Doc. No. 232). She

raises four assignments of error for our review. Because they are related, we address

Julie’s first and second assignments of error together, followed by her third and

fourth assignments of error.

                            Assignment of Error No. I

       The Trial Court Erred in Finding the Defendant Guilty of
       Contempt When There Was No Order Requiring Her to Prepare
       and Submit Documents to the Plaintiff With Regard to Claiming
       the Child as a Dependent.

                            Assignment of Error No. II

       The Trial Court Erred in Ordering the Defendant to Pay in
       Excess of $2500.00 in Attorney Fees to the Plaintiff When the
       Record Was Clear that She Was, in Fact, Not Guilty of Contempt
       and Unemployed and the Court Used that Lack of Employment
       as a Predicate for Purporting to Change Her Right to Claim the
       Exemption Pursuant to the Provisions of Section 3119.82 of the
       Revised Code.

       {¶9} In her first assignment of error, Julie argues that the trial court erred in

finding her in contempt of court for failing to provide Paul with the appropriate form

for him to claim the tax dependency exemption for the child because the divorce

decree did not include the requisite statutory language under R.C. 3119.82

mandating Julie to provide that form. In her second assignment of error, Julie argues

that the trial court erred in imposing attorney fees since, according to Julie, she was

not in contempt of the trial court’s order. She further argues under her second



                                          -4-
Case No. 14-17-05


assignment of error that the trial court erred in imposing attorney fees without

properly considering R.C. 3105.73(B).

       {¶10} A trial court has inherent authority to enforce its prior orders through

contempt. Dozer v. Dozer, 88 Ohio App.3d 296, 302 (4th Dist.1993). See also R.C.

2705.02(A). “A finding of civil contempt requires clear and convincing evidence

that the alleged contemnor has failed to comply with the court’s prior orders.”

Moraine v. Steger Motors, Inc., 111 Ohio App.3d 265, 268 (2d Dist.1996), citing

ConTex, Inc. v. Consolidated Technologies, Inc., 40 Ohio App.3d 94, 95 (1st

Dist.1988). “‘Clear and convincing evidence’ has been defined as ‘that measure or

degree of proof which is more than a mere preponderance of the evidence, but not

to the extent of such certainty as is required beyond a reasonable doubt in criminal

cases, and which will produce in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.’” Ohio State Bar Assn. v. Reid,

85 Ohio St.3d 327, 331 (1999), quoting Cross v. Ledford, 161 Ohio St. 469 (1954),

paragraph three of the syllabus.

       {¶11} Under “R.C. 3105.73(B), a trial court may award attorney fees in a

post-decree motion or proceeding arising out of a divorce action if the court finds

the award equitable.” Roush v. Roush, 10th Dist. Franklin Nos. 15AP-1071, 16AP-

264, and 16AP-388, 2017-Ohio-840, ¶ 50. When deciding whether to award

attorney fees, the court may consider “the parties’ income, the conduct of the parties,


                                         -5-
Case No. 14-17-05


and any other relevant factors the court deems appropriate, but it may not consider

the parties’ assets.” R.C. 3105.73(B).

       {¶12} This court will not reverse a finding of contempt absent an abuse of

discretion by the trial court. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11

(1981); Dozer at 302. Likewise, because a trial court has discretion to award

attorney fees in contempt proceedings, we review a trial court’s attorney-fee award

for an abuse of discretion. Rhea v. Rhea, 10th Dist. Franklin No. 16AP-609, 2017-

Ohio-4141, ¶ 17, citing Grosz v. Grosz, 10th Dist. Franklin No. 04AP-716, 2005-

Ohio-985, ¶ 24. See Walton v. Walton, 3d Dist. Union No. 14-10-21, 2011-Ohio-

2847, ¶ 39.     An abuse of discretion suggests the trial court’s decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶13} Julie does not dispute that she did not provide Paul the appropriate tax-

dependency-exemption form within the appropriate timeframe. Rather, Julie argues

that the trial court abused its discretion by finding her in contempt of court because

the March 21, 2011 divorce decree is ambiguous and did not provide notice of her

obligations—that is, that she was to “sign a certain federal form within appropriate

time limits.” (Appellant’s Brief at 6). In support of her argument, Julie contends

that the trial court’s tax-dependency-exemption order did not reference the




                                         -6-
Case No. 14-17-05


appropriate statutory provisions as it is required to do under R.C. 3119.82 to

properly notify her of her obligations.

       {¶14} “A party cannot be found in contempt if the contempt charge is

premised on a party’s failure to obey an order of the court and the order is not clear,

definite, and unambiguous and is subject to dual interpretations.” Contos v. Monroe

County, 7th Dist. Monroe No. 04 MO 3, 2004-Ohio-6380, ¶ 15, citing Chilcote v.

Gleason Const. Co., 5th Dist. Ashland No. 01COA01397, 2002 WL 205851, *2

(Feb. 6, 2002), Collette v. Collette, 9th Dist. Summit No. 20423, 2001 WL 986209,

*2 (Aug. 22, 2001), Marysville v. Wilson, 3d Dist. Union No. 14-94-8, 1994 WL

378992, *2 (July 20, 1994), Smith v. Smith, 10th Dist. Franklin No. 93AP-958, 1994

WL 9055, *3 (Jan. 13, 1994), and In re Contempt of Gilbert, 8th Dist. Cuyahoga

Nos. 64299 and 64300, 1993 WL 526788, *2 (Dec. 16, 1993). However, “[a]n order

is not ambiguous merely because a party misunderstands the order and a

misunderstanding of an unambiguous order is not a defense to a contempt

proceeding.” Id., citing Chilcote at *2 and Gilbert at *7. “To be ambiguous, the

order must be unclear or indefinite and subject to dual interpretations.” Id., citing

Chilcote at *2 and Gilbert at *8.

       {¶15} Regarding the tax dependency exemption, the March 21, 2011 divorce

decree provides:




                                          -7-
Case No. 14-17-05


        Father shall claim the child as a dependent for all Federal, State, City,

        and Local tax purposes in the odd years beginning 2011, and Mother

        in even years beginning in 2010. Father’s ability to so claim is

        conditioned upon him being substantially current on his child support

        obligation for the calendar year in which he so claims.

(Doc. No. 80).2

        {¶16} Contrary to Julie’s argument, the tax-dependency-exemption order

contained in the March 21, 2011 divorce decree is not unclear, indefinite, or subject

to dual interpretations—that is, the order is not so ambiguous that Julie was unable

to understand what was required of her. See Lundy v. Lundy, 11th Dist. Trumbull

No. 2012-T-0100, 2013-Ohio-3571, ¶ 29 (concluding that the trial court’s order

allowing the father to claim the children for tax purposes was not so vague that the

mother was unable to understand what was required of her or that compliance was

impossible). See also Stephens v. Stephens, 5th Dist. Ashland No. 04-00A-027,

2004-Ohio-4640, ¶ 18-19 (concluding that the trial court’s order that father could

claim the minor children as dependents on his federal tax return was not vague or

ambiguous).

        {¶17} Moreover, if Julie believed that the trial court’s order was improper or

unclear, she could have appealed the order at the time it was issued, which she failed


2
 There is no dispute whether Paul was substantially current on his child-support obligation for the 2015 tax
year.

                                                    -8-
Case No. 14-17-05


to do. See Lundy at ¶ 30. Because Julie did not appeal the trial court’s tax-

dependency-exemption order, she waived any challenges to the merits of the

underlying order as a defense. See id. at ¶ 34 (“when considering an appeal from a

trial court’s finding of contempt, the appellant cannot raise as a defense challenges

to the merits of the underlying order from which the appellant did not directly

appeal”), citing Lucas v. Lucas, 11th Dist. Lake No. 2007-L-058, 2007-Ohio-5607,

¶ 12. See also id. at ¶ 35, citing Ahmad v. Ahmad, 2d Dist. Montgomery No. 23740,

2010-Ohio-5635, ¶ 23 (“appellant could not question the validity of the original

judgment in an appeal from contempt of that order, because the judgment was valid

until overturned by direct attack”) and Bruce v. Bruce, 3d Dist. Logan No. 8-82-3,

1982 WL 6849, *2 (Aug. 11, 1982) (“since the appellant failed to appeal from the

decree in which the order leading to the contempt was made, the order ‘remained a

subsisting enforceable order which the trial court had no right to review or reverse

when the issue of validity was raised merely in defense of the contempt motion’”).

       {¶18} Further, there is no evidence that Julie can collaterally attack the trial

court’s tax-dependency-exemption order—that is, Julie has not shown that the order

is void and a nullity. See id. at ¶ 36 (“Provided that a judgment was voidable, and

not void, errors relating to the underlying order must be raised on direct appeal, not

in subsequent contempt proceedings.”), citing In re Marriage of Henson, 11th Dist.

Trumbull No. 2006-T-0065, 2007-Ohio-4376, ¶ 29, 31 (“if the judgment is within


                                         -9-
Case No. 14-17-05


the subject matter jurisdiction of the court, but is ‘flawed and erroneous,’ then the

judgment is deemed voidable and ‘the original order may not be collaterally

attacked, but instead may be addressed only on direct appeal’”). Because Julie did

not show that the order is void, Julie’s arguments as to the merits of the judgment

cannot be raised in this appeal. Id.

       {¶19} Besides, that Julie now claims that she was unaware of what actions

were necessary for her to comply with the trial court’s order is disingenuous because

Paul previously sought a finding of contempt against Julie for denying him the

ability to claim the child as a dependent for the 2013 tax year. (See Doc. Nos. 135,

164, 188, 195). Although the trial court concluded that Paul “failed to establish by

clear and convincing evidence that [Julie] acted in any manner to deny [Paul’s]

rights,” Julie was put on notice of the divorce decree’s tax-dependency-exemption

order. If Julie was unclear as to her obligations to fulfill that order, she could have

clarified the order at that time, but did not. For these reasons, we conclude that the

trial court did not abuse its discretion by finding Julie in contempt of court.

       {¶20} Because we conclude that the trial court did not abuse its discretion by

finding Julie in contempt of court, we also conclude that the trial court did not abuse

its discretion by awarding Paul attorney fees in relation to the contempt finding. See

Pace v. Pace, 5th Dist. Tuscarawas No. 10 AP 02 0008, 2010-Ohio-3573, ¶ 45

(concluding that the trial court did not abuse its discretion by awarding attorney fees


                                         -10-
Case No. 14-17-05


after the trial court found mother in contempt of court for failing “to sign and return

the IRS 8332 documents for the dependency exemption”).

       {¶21} However, although Julie does not challenge the amount of attorney

fees awarded by the trial court, she argues that the attorney-fee award is contrary to

R.C. 3105.73(B)—presumably because she is unemployed. Nonetheless, Julie fails

to recognize that R.C. 3105.73(B) permits the trial court to consider the parties’

income or “any other relevant factors the court deems appropriate,” except for the

parties’ assets, when determining whether an attorney-fee award is equitable.

       {¶22} In overruling Julie’s objections to the magistrate’s decision, the trial

court concluded that Julie

       has had the ability to retain counsel to defend [Paul’s] motions now

       under review as well as pay her own attorney fees throughout the

       course of the case. [Julie] was on notice of the risks incident to a

       finding of contempt. There is no reason to believe she is unable to

       fund the reasonable fees and costs recommended by the magistrate.

(Doc. No. 229). The trial court is permitted to consider any relevant factors that it

deems appropriate when considering whether an attorney-fee award is equitable,

including a party’s access to monies to fund litigation. The trial court did not

consider the parties’ assets when determining whether the attorney-fee award was

equitable.   As such, the trial court properly considered R.C. 3105.73(B) in


                                         -11-
Case No. 14-17-05


concluding that it is equitable to award Paul attorney fees related to its contempt

finding.

       {¶23} For these reasons, we cannot conclude that the trial court abused its

discretion by awarding Paul attorney fees in relation to the contempt finding. See

Roush, 2017-Ohio-840, at ¶ 51.

       {¶24} Julie’s first and second assignments of error are overruled.

                           Assignment of Error No. III

       The Trial Court Erred in Changing the Tax Exemption Provision
       as to the Child so that Plaintiff Could Claim the Child as a
       Dependent Every Year.

       {¶25} In her third assignment of error, Julie argues that the trial court erred

by reallocating the tax dependency exemption. In particular, Julie argues that the

trial court lacked authority to review the tax dependency exemption because “no

motion or review of the child support order was before the court in December 2016.”

(Appellant’s Brief at 10). As such, Julie contends that the only authority that the

trial court had to modify the tax dependency exemption is under Civ.R. 60(B), and,

according to Julie, no provision of that rule applies to grant the trial court the

authority to modify the tax dependency exemption. Julie further argues that the trial

court failed to make the requisite statutory findings under R.C. 3119.82 when it

reallocated the tax dependency exemption to Paul.




                                        -12-
Case No. 14-17-05


       {¶26} Julie is incorrect. Under Ohio law, “the trial court retains jurisdiction

to modify the allocation of the income tax dependency exemption.” Hopton v.

Preston, 128 Ohio App.3d 571, 574 (9th Dist.1998).           “The modern statutory

authority regarding exemptions, R.C. 3119.82, states in pertinent part that

‘[w]henever a court issues, or whenever it modifies, reviews, or otherwise

reconsiders a court child support order, it shall designate which parent may claim

the children who are the subject of the court child support order as dependents for

federal income tax purposes.’” Schott v. Schott, 5th Dist. Tuscarawas No. 2003 AP

10 0082, 2004-Ohio-1914, ¶ 13, quoting R.C. 3119.82.

       {¶27} Julie’s argument that Paul’s November 7, 2016 motion requesting the

trial court to reallocate the tax dependency exemption did not constitute a motion to

modify a court child support order is erroneous. See id. (concluding that the trial

court had continuing jurisdiction to review the tax dependency exemption after

father filed a motion requesting the trial court to reallocate the tax dependency

exemption because “the General Assembly has clearly interwoven the award of the

tax exemption with the issue of child support.”). See also Freed v. Freed, 3d Dist.

Hancock No. 5-15-15, 2015-Ohio-4527, ¶ 10 (“This court notes that there is no

question that the trial court can modify the tax exemption for the year in which the

motion was filed to grant it to the custodial parent who has the higher income.”).




                                        -13-
Case No. 14-17-05


We conclude that the trial court had continuing jurisdiction to review the tax

dependency exemption as requested by Paul’s November 7, 2016 motion.

       {¶28} “This Court reviews a trial court’s allocation of tax dependency

exemptions for an abuse of discretion.” Greathouse v. Hilliard, 9th Dist. Summit

No. 28265, 2017-Ohio-2636, ¶ 10, citing Lawrence v. McCraw, 9th Dist. Medina

No. 10CA0079-M, 2011-Ohio-6334, ¶ 14.            As we noted above, an abuse of

discretion means the trial court’s decision is unreasonable, arbitrary, or

unconscionable. Blakemore, 5 Ohio St.3d at 219.

       {¶29} “R.C. 3119.82 governs the designation of the parent entitled to claim

a tax dependency exemption.” Carr-Woodard v. Woodard, 8th Dist. Cuyahoga No.

103283, 2016-Ohio-5134, ¶ 33. “The [trial] court may permit the parent who is not

the residential parent to claim the child as a dependent for federal income tax

purposes only if the court determines that this furthers the best interest of the child

and the payments for child support are substantially current as ordered by the court

for the year in which the child will be claimed as a dependent.” Serra v. Serra, 10th

Dist. Franklin No. 15AP-528, 2016-Ohio-950, ¶ 36, citing R.C. 3119.82.

       In making its allocation determination, the court must consider “any

       net tax savings, the relative financial circumstances and needs of the

       parents and children, the amount of time the children spend with each

       parent, the eligibility of either or both parents for the federal earned


                                         -14-
Case No. 14-17-05


      income tax credit or other state or federal tax credit, and any other

      relevant factor concerning the best interest of the children.”

Id., quoting R.C. 3119.82.

      {¶30} In this case, the trial court’s magistrate reviewed the statutory factors:

             In the present case, [Julie] remains unemployed as she has been

      throughout the history of this case. The Judgement Entry of May 28,

      2015 approved and adopted the finding that [Julie] is voluntarily

      unemployed and there is no evidence to disturb that finding. Upon

      the imputation of minimum wage to [Julie, 73% of the family income

      for the purposes of child support is earned by [Paul].

             [Julie] testified that she has not claimed the federal tax

      exemption because she has no filed taxes in the years the exemption

      has been allocated to her. When asked why the exemption should not

      be allocated to [Paul], [Julie] testified that she may go back to work

      someday. That testimony is considered to be a mere speculation and

      not evidence of a present intent to exploit the exemption for the benefit

      of the child in the foreseeable future.

             Upon consideration of the factors set forth in R.C. 3119.82 and

      the facts of this case, it is in the best interest of the child that the federal




                                           -15-
Case No. 14-17-05


       tax dependency exemption for the child be allocated to [Paul] for each

       tax year that [Paul] is eligible to claim the child under the IRS Code.

(Doc. No. 224).

       {¶31} Julie objected the magistrate’s decision regarding the tax dependency

exemption. In overruling Julie’s objection to the magistrate’s tax-dependency-

exemption determination, the trial court reviewed the record and the magistrate’s

findings and concluded that allocating the tax dependency exemption to Paul is in

the best interest of the child.

       {¶32} Based on our review of the record, the trial court considered the R.C.

3119.82 factors. The record supports the trial court’s best-interest findings under

R.C. 3119.82.     Therefore, we cannot conclude that the trial court abused its

discretion by reallocating the tax dependency exemption to Paul.

       {¶33} Julie’s third assignment of error is overruled.

                             Assignment of Error No. IV

       The Trial Court Erred in Ruling on the Objection to the
       Magistrate’s Decision Overruling the Defendant’s Motion for
       Attorney Fees When the Defendant, Prior to the Start of Trial,
       Pursuant to Rule 41(A) Withdrew the Motion Because the
       Records Subpoenaed From the Plaintiff’s Employer Had Not
       Been Delivered and the Record Was Clear that this Was Being
       Done Pursuant to Rule 41(A) and Other Than on the Merits.




                                        -16-
Case No. 14-17-05


        {¶34} In her fourth assignment of error, Julie argues that the trial court erred

by ruling on her motion for attorney fees after she voluntarily withdrew her motion

prior to the start of trial under Civ.R. 41(A).

        {¶35} As under our review of Julie’s second assignment of error, we review

a trial court’s decision to award attorney fees for an abuse of discretion. Rhea, 2017-

Ohio-4141, at ¶ 17, citing Grosz, 2005-Ohio-985, at ¶ 24. See Walton, 2011-Ohio-

2847, at ¶ 39. As we previously stated, for this court to find that the trial court

abused its discretion, the trial court’s decision must be unreasonable, arbitrary, or

unconscionable. Blakemore, 5 Ohio St.3d at 219.

        {¶36} Julie does not challenge the trial court’s denial of her motion for

attorney fees based on its conclusion that her request is “devoid of merit”; rather,

Julie challenges the trial court’s decision to rule on the merits of her motion after

she voluntarily withdrew her motion under Civ.R. 41(A). Based on our review of

the record, the trial court properly reviewed the merits of Julie’s motion for attorney

fees.

        {¶37} “Civ.R. 41(A) provides two methods for voluntary dismissal: by a

plaintiff under Civ.R. 41(A)(1) and by order of the court under Civ.R. 41(A)(2).”

Infinite Sec. Solutions, L.L.C. v. Karam Properties, II, Ltd., 143 Ohio St.3d 346,

2015-Ohio-1101, ¶ 39 (Kennedy, J., dissenting). “Dismissals pursuant to Civ.R.

41(A)(1) may be effected by the plaintiff, under certain circumstances, without an


                                          -17-
Case No. 14-17-05


order from the court.” Id. Under Civ.R. 41(A)(1), a plaintiff may voluntarily

dismiss a claim without an order from the court by:

       (a) filing a notice of dismissal at any time before the commencement

       of trial unless a counterclaim which cannot remain pending for

       independent adjudication by the court has been served by that

       defendant; [or]

       (b) filing a stipulation of dismissal signed by all parties who have

       appeared in the action.

Civ.R. 41(A)(1).

       {¶38} “Dismissal under Civ.R. 41(A)(1) gives a party an absolute right to

dismiss its claim any time before commencement of the trial.” Capital One Bank v.

Woten, 169 Ohio App.3d 13, 2006-Ohio-4848, ¶ 8 (3d Dist.), citing Douthitt v.

Garrison, 3 Ohio App.3d 254, 255 (9th Dist.1981). “However, a plaintiff’s absolute

right to voluntarily dismiss under Civ.R. 41(A)(1) requires filing of a written notice

of dismissal. An oral motion will not suffice.” Id., citing Douthitt at 256 (“filing of

papers required by the rules means ‘filing them with the clerk of court.’ Oral

requests cannot be so filed”) and Lilly v. Lilly, 26 Ohio App.3d 192, 193 (2d

Dist.1985). See also Forsthoefel v. Altier, 4th Dist. Athens No. 05CA19, 2006-

Ohio-1097, ¶ 14 (“Courts interpret Civ.R. 41(A)(1) to require a plaintiff to file his

notice of dismissal in writing.”), citing Lilly at 193, Brown v. Johnson, 10th Dist.


                                         -18-
Case No. 14-17-05


Franklin No. 80AP-167, 1980 WL 353532, *2 (June 26, 1980), and McCormac &

Solimine, Ohio Civil Rules Practice, Section 13.03, at 331-332 (3d Ed.2003).

       {¶39} “Civ.R. 41(A)(2) permits a plaintiff who cannot voluntarily dismiss

pursuant to Civ.R. 41(A)(1) to move the court for an order dismissing the action

without prejudice.” Infinite Sec. Solutions, L.L.C. at ¶ 40. Civ.R. 41(A)(2) provides,

in pertinent part, that “a claim shall not be dismissed at the plaintiff’s instance except

upon order of the court and upon such terms and conditions as the court deems

proper.”

       {¶40} Prior to the start of trial, Julie’s trial counsel informed the trial court,

“pursuant to Rule 41 A, I will dismiss that motion without prejudice which gives

me the right to re-file it once I get my hands on those records.” (Dec. 5, 2016 Tr. at

5). Julie did not ask the trial court to issue an order dismissing her motion; rather,

Julie indicated that she would proceed to voluntarily dismiss the motion in

accordance with the rule, but failed to file a written notice with the court. Because

Julie did not file a written notice of dismissal in this case, Civ.R. 41(A)(1) does not

apply. Infinite Sec. Solutions, L.L.C. at ¶ 39. Compare Woten at ¶ 10 (“Capital One

did not file written notice of voluntary dismissal, but instead orally moved to

voluntarily dismiss.”). Moreover, the trial court did not issue an order dismissing

Julie’s motion for attorney fees. Accordingly, Julie’s argument under her fourth

assignment of error cannot be based on the authority of Civ.R. 41(A)(2). See Infinite


                                          -19-
Case No. 14-17-05


Sec. Solutions, L.L.C. at ¶ 40 (“Accordingly, the dismissal order in this case was not

based on the authority of Civ.R. 41(A)(2), as neither Infinite nor Travelers moved

the court to dismiss the action.”). For these reasons, the trial court did not abuse its

discretion by denying Julie’s motion for attorney fees—that is, the trial court

properly addressed the merits of Julie’s motion for attorney fees.

       {¶41} Julie’s fourth assignment of error is overruled.

       {¶42} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/jlr




                                         -20-
