[Cite as Willoughby v. Willoughby, 2014-Ohio-743.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


ELENA A. WILLOUGHBY,                                 :   OPINION

          Plaintiff-Appellee/Cross-Appellant,        :
                                                         CASE NO. 2012-T-0095
    - vs -                                           :

JOHN R. WILLOUGHBY,                                  :

          Defendant-Appellee,                        :

STEVEN ECHOLS WATTS, DDS, INC,                       :
et al.,
                                                     :
          Third Party Defendants-Appellants/
          Cross-Appellees,                           :

(STEVEN ECHOLS WATTS, DDS, INC., :
ASSIGNEE FOR MARK BEATRICE,
BANKRUPTCY TRUSTEE FOR           :
JOHN R. WILLOUGHBY,
                                 :
      Appellee/Cross-Appellant).


Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 08 DR 425.

Judgment: Affirmed in part, vacated in part, and remanded.


Michael J. McGee, Harrington, Hoppe & Mitchell, Ltd., 108 Main Avenue, S.W., Suite
500, Warren, OH 44481 (For Plaintiff-Appellee/Cross-Appellant).

Nancy E. Yakubek, 524 North Park Avenue, Warren, OH            44481 (For Defendant-
Appellee).

Ned C. Gold, Jr. and John D. Falgiani, Jr., Ford, Gold & Falgiani Law Group, 8872 East
Market Street, Warren, OH 44484 (For Third Party Defendants-Appellants/Cross-
Appellees and Appellee/Cross-Appellant).
TIMOTHY P. CANNON, P.J.

        {¶1}   Appellants/cross-appellees, Steven E. Watts (“Dr. Watts”) and Steven

Echols Watts, DDS, Inc. (“Watts Inc.”) (jointly referred to as “appellants”), were joined as

parties to a divorce proceeding. They appeal the judgment of the Trumbull County

Court of Common Pleas, Domestic Relations Division, ordering Dr. Watts to pay

$255,488 to the “marital estate” of appellee/cross-appellant, Elena A. Willoughby

(“Elena”), and appellee, John R. Willoughby (“Dr. Willoughby”). Though Watts Inc. was

joined as a third-party defendant in the trial court and is a party to this appeal, the trial

court’s monetary judgment is against Dr. Watts only. The trial court’s finding was based

on the theory that Dr. Watts was unjustly enriched when Dr. Willoughby sold his dental

practice to appellants for less than fair market value.

        {¶2}   Elena cross-appeals the trial court’s partial award of her claimed attorney

fees.

        {¶3}   In addition, Mark Beatrice, Dr. Willoughby’s Chapter 7 Bankruptcy Trustee

(“Trustee”), intervened in the divorce proceeding.        Trustee asserted the sale of the

dental practice was a preferential transfer and that there should be a credit to the

bankruptcy estate.    Trustee cross-appeals the trial court’s division of the $255,488.

Subsequent to filing the cross-appeal, Watts Inc. and Trustee entered into an

agreement, which assigned to Watts Inc. all of Trustee’s rights to any distribution of the

judgment amount that may be obtained.

        {¶4}   Dr. Willoughby and Elena were married in 1972. In 1991, Dr. Willoughby

moved his dental practice into a building owned by Dr. Watts’ wife, Rebecca Watts, in

which Dr. Watts also practiced dentistry. Dr. Willoughby and Dr. Watts entered into an




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office-sharing agreement drafted by Attorney Ned C. Gold, Jr. The agreement included

provisions for the common use of dental equipment, time-sharing arrangements, and a

monthly reconciliation of expenses for consumable dental equipment. Elena worked in

her husband’s office.

       {¶5}   Pursuant to a December 15, 2008 bill of sale, Dr. Willoughby sold his

dental practice to appellants for $75,000.       The purchase price was satisfied by

appellants forgiving a debt of $49,550.68 owed by Dr. Willoughby and cash in the

amount of $25,449.32. The cash was to be paid by Dr. Willoughby to Rebecca Watts to

satisfy an outstanding loan.     At the time of the sale, there were no outstanding

encumbrances or orders restricting this transfer.

       {¶6}   On December 17, 2008, Elena filed a complaint for divorce.               On

December 22, 2008, one week after Dr. Willoughby sold his practice, the trial court

issued an order restraining both Dr. Willoughby and Elena from disposing of any marital

assets.

       {¶7}   In July 2009, Dr. Willoughby filed for Chapter 7 Bankruptcy. Thereafter,

the Willoughbys’ divorce proceedings were stayed.          On November 5, 2009, the

bankruptcy court granted Elena’s motion for relief from the stay. The order indicates

that Trustee was “authorized and directed to abandon such interest he may have” in the

Willoughbys’ divorce proceedings.

       {¶8}   On March 24, 2010, Elena filed a supplemental complaint in the divorce

proceedings joining appellants as parties. The supplemental complaint alleges that

appellants were in possession of a marital asset, to wit: Dr. Willoughby’s dental practice,

which had been acquired through a fraudulent transfer in violation of R.C. 1336.01, et.




                                            3
seq., and in violation of the common law rule against fraudulent transfers. There is no

allegation in the complaint that supports the theory of unjust enrichment as a cause of

action.     Appellants filed an answer denying each and every averment in Elena’s

supplemental complaint.

          {¶9}   Elena also filed a third-party complaint against appellants in a case that

was pending against the Willoughbys in the General Division of the Trumbull County

Court of Common Pleas concerning a business debt. PNC Bank NA v. Willoughby,

Trumbull C.P. No. 2010 CV 00297 (Apr. 9, 2013). In that complaint, Elena made the

same allegations of fraudulent transfer as set forth in the divorce proceeding.

Appellants moved to consolidate the two actions, but the motion was denied.

Appellants appealed the denial, but we held that the denial was not a final, appealable

order and thus dismissed the appeal. Willoughby v. Willoughby, 11th Dist. Trumbull No.

2010-T-0114, 2011-Ohio-400.

          {¶10} On January 18, 2011, appellants filed a motion seeking dismissal of

Elena’s claims against appellants in the divorce proceeding, asserting the fraudulent

transfer allegations were not “domestic relations” matters. The motion was denied.

          {¶11} On July 27, 2011, Trustee filed a “complaint to avoid and recover voidable

transfers and for damages” in the United States Bankruptcy Court for the Northern

District of Ohio. Trustee alleged that the sale of Dr. Willoughby’s dental practice was an

avoidable preferential transfer; an avoidable fraudulent transfer; and appellants were

transferees within the scope of 11 U.S.C. § 550(a) from whom the wrongfully transferred

property, or the value thereof, could be recovered. Trustee filed a motion to intervene in

the Willoughbys’ divorce proceedings, which was granted.




                                              4
       {¶12} On March 23, 2012, appellants filed a motion to disqualify Elena’s

counsel—Michael McGee and the law firm of Harrington, Hoppe & Mitchell, Ltd.—

alleging a conflict of interest. Appellants argued that Attorney McGee’s former partner

had prepared the office-sharing agreement between Dr. Willoughby and Dr. Watts,

which was in issue in the divorce proceedings. Following a meeting between the court

and counsel, the motion was denied with no evidence placed on the record.

       {¶13} In an April 26, 2012, motion to freeze assets, Elena alleged that appellants

had sold Dr. Watts’ dental practice for less than fair market value and that Dr. Watts

was moving out of the jurisdiction to hide the proceeds. There was evidence presented

that appellants sold the entire practice for $560,000. An appraisal conducted for the

benefit of appellants before the sale placed the practice’s value at $620,632.         The

motion was denied.

       {¶14} In its November 14, 2012 judgment entry granting the divorce, the trial

court found Dr. Willoughby had committed financial misconduct by wrongfully

dissipating a marital asset, his dental practice, with the intent to defeat Elena’s claim to

her share of the asset. The trial court’s judgment entry indicates that two appraisers

testified with regard to the value of Dr. Willoughby’s dental practice at the time of sale.

The appraisers reached very different conclusions concerning the value of the practice.

One testified the practice was worth $330,488; the other testified the practice was worth

$90,949. The trial court found that Dr. Watts was unjustly enriched by Dr. Willoughby’s

financial misconduct and therefore owed the marital estate $255,488. The trial court

reached this amount by subtracting the $75,000 originally paid by appellants, which the




                                             5
trial court found was used to pay marital debts, from the value of Dr. Willoughby’s

practice, which the trial court found to be $330,488.

       {¶15} The trial court then determined that an equal distribution of the judgment

amount between the Willoughbys was appropriate. Thus, it awarded $127,744 to Elena

and $127,744 to Dr. Willoughby. The court further ordered that, pursuant to stipulation

of the parties, Elena was to receive payment of spousal support arrearages out of Dr.

Willoughby’s half, in the amount of $76,780.46, on a contingent basis. The stipulation

provides that these arrearages are to be forgiven if no award ultimately results from the

third-party claim against appellants.      Finally, the trial court found that an award of

Elena’s attorney fees was appropriate based upon the finding of Dr. Willoughby’s

financial misconduct. The trial court awarded Elena $43,000 in fees, to be paid from Dr.

Willoughby’s half of the recovery from Dr. Watts. The trial court declined to award

attorney fees to Elena that were incurred in connection with the proceedings in the

general division or in bankruptcy court.

       {¶16} Judgment was rendered against Dr. Watts in favor of the “marital estate.”

The trial court’s judgment entry makes no findings with regard to the supplemental

complaint’s allegations of fraud in the transfer of Dr. Willoughby’s dental practice to

appellants. The judgment of the trial court against Dr. Watts is based on the theory that

he was unjustly enriched by the financial misconduct of Dr. Willoughby, not fraud.

However, the supplemental complaint neither sets forth the elements of an unjust

enrichment claim nor asserts it as the basis for recovery.

       {¶17} Appellants assert five assignments of error:

              [1.] The Trial Court committed reversible error and acted contrary to
              law when it ruled against Appellants and ordered them to pay to



                                              6
              Appellees jointly the sum of $255,488 on the grounds that
              Appellants had been “unjustly enriched.

              [2.] The court erred in failing to hold an evidentiary hearing
              regarding Appellants’ motion to disqualify Attorney Michael McGee
              and his law firm as counsel for Plaintiff-Appellee because of an
              inherent conflict of interest.

              [3.] The trial court erred and acted contrary to law in adjudicating
              Appellee’s third-party claims against Appellants.

              [4.] Under the totality of the evidence and testimony the trial court
              abused its discretion and committed manifest injustice in its
              decision entering a monetary judgment in favor of the marital estate
              and against Appellants and in the process violated the well
              established public policy of the State of Ohio against profiteering by
              divorce.

              [5.] The trial court denied Appellants Watts due process of law.

       {¶18} In her cross-appeal, Elena asserts one assignment of error:

       {¶19} “The trial court abused its discretion in not awarding Elena Willoughby the

full amount of her attorney’s fees.”

       {¶20} Watts Inc., as assignee of Trustee, also asserts one assignment of error

under its cross-appeal:

       {¶21} “The trial court acted contrary to law and abused its discretion by dividing

property of a bankruptcy estate in derogation of the rights of the Bankruptcy Trustee,

who intervened in the domestic relations proceedings and did not ‘abandon’ his claims.”

       {¶22} We first address appellants’ assignments of error. However, for ease of

discussion, we address them out of numerical order.

       {¶23} Appellants’ first assignment of error challenges the trial court’s application

of the principle of unjust enrichment. Appellants outline several sub-issues asserting

that the trial court erred (1) by applying the principle of unjust enrichment, because




                                            7
unjust enrichment was neither pled nor argued; (2) by shifting the liability for Dr.

Willoughby’s financial misconduct to Dr. Watts; and (3) by finding that Dr. Watts was

unjustly enriched even though an express contract governed his purchase of Dr.

Willoughby’s dental practice.

       {¶24} Appellate courts generally review a trial court’s determination in a

domestic relations case for an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142,

144 (1989). As a court of equity, a trial court “must have discretion to do what is

equitable upon the facts and circumstances of each case[.]” Id., citing Cherry v. Cherry,

66 Ohio St.2d 348, 355 (1981). “The term ‘abuse of discretion’ is one of art, ‘connoting

judgment exercised by a court, which does not comport with reason or the record.’ In re

V.M.B., 11th Dist. Portage No. 2012-P-0112, 2013-Ohio-4298, ¶26, quoting State v.

Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v.

Ferranto, 112 Ohio St. 667, 676-678 (1925). We hold that the trial court abused its

discretion and issued a judgment contrary to law when it applied the principal of unjust

enrichment to award a judgment against appellants.

       {¶25} Dr. Willoughby sold his dental practice to appellants pursuant to a written

contract. The trial court found that the sale constituted financial misconduct on the part

of Dr. Willoughby. It did not find any fraud or illegality in connection with the contract.

       {¶26} Upon a finding of financial misconduct, a trial court may compensate the

offended spouse with a distributive award or with a greater award of marital property.

See R.C. 3105.171(E)(4). The enumerated remedies are not exclusive. See, e.g.,

Moore v. Moore, 175 Ohio App.3d 1 (6th Dist.2008) (upholding the trial court’s

determination that a constructive trust arose by operation of law to prevent husband




                                              8
from benefiting from his financial misconduct). Our research, however, has revealed no

case in which a finding of financial misconduct resulted in a monetary award against a

third party. The only logical equitable remedy for financial misconduct is against the

offending spouse, i.e., the party guilty of misconduct.

       {¶27} However, as a result of Dr. Willoughby’s financial misconduct, the trial

court found that Dr. Watts had been “unjustly enriched” at the expense of the

Willoughby’s marital estate.

       {¶28} “‘[U]njust enrichment operates in the absence of an express contract or a

contract implied in fact to prevent a party from retaining money or benefits that in justice

and equity belong to another.’” Kwikcolor Sand v. Fairmount Minerals Ltd., 8th Dist.

Cuyahoga No. 96717, 2011-Ohio-6646, ¶14, quoting Gallo v. Westfield Natl. Ins. Co.,

8th Dist. Cuyahoga No. 91893, 2009-Ohio-1094, ¶19. Unjust enrichment occurs when:

(1) a benefit is conferred by the plaintiff upon a defendant; (2) the defendant knows of

the benefit; and (3) the defendant retains the benefit under circumstances where it

would be unjust to do so without payment. Grey v. Walgreen Co., 197 Ohio App.3d

418, 424 (8th Dist.2011).      An equitable action for unjust enrichment does not exist

where there is a valid and enforceable contract.          Westbrook v. Swiatek, 5th Dist.

Delaware No. 09CAE09-0083, 2011-Ohio-781, ¶98, citing Ullman v. May, 147 Ohio St.

468, 477-478 (1947).

       {¶29} Finding that Dr. Willoughby engaged in financial misconduct by dissipating

a marital asset does not, in any way, invalidate or rescind the contract between Dr.

Willoughby and appellants. The trial court made no finding of fraud or illegality with

respect to the contract. The theory of unjust enrichment cannot be used to reform the




                                             9
contract, because Dr. Willoughby was party to an express and written contract for the

sale of his business. See Westbrook, supra. Dr. Willoughby received the bargained-for

purchase price. The fact that Dr. Watts may have benefited from the transaction does

not equate to unjust enrichment.

      {¶30} Appellants purchased the dental practice from Dr. Willoughby at a time

when Dr. Willoughby was free to sell it. At the time the practice was sold, no divorce

action had been filed.   There was no order restraining Dr. Willoughby from selling

marital assets. There was no basis upon which the trial court could find that the marital

estate conferred any benefit to appellants that they had no right to obtain. The benefit

to appellants was conferred by Dr. Willoughby, who is not seeking any recovery.

      {¶31} Elena cites to Huener v. Huener, 110 Ohio App.3d 322 (3rd Dist.1995), for

the proposition that R.C. 3105.171(E)(1) allows a trial court to secure a distributive

award by placing a lien on the property of a spouse guilty of financial misconduct.

Huener, however, is readily distinguishable from the facts in this case. In Huener, the

trial court issued an order affecting title to property held by the husband’s parents, who

were not parties to the case. Husband had acknowledged he was an “equitable owner”

of the house. However, the court of appeals reversed, holding the trial court abused its

discretion by attempting to divest the husband’s parents of their interest in the property

without joining them as a party. In this case, appellants were joined as parties, but

there is no claim that Dr. Willoughby retained any “equitable” interest in the dental

practice that was sold. Thus, Huener has no application to this case.

      {¶32} In addition, even if the elements of an unjust enrichment theory had been

satisfied, appellants would still be entitled to judgment in their favor. The trial court




                                           10
issued a judgment based on a theory that was not raised in the pleadings. Appellants

were defending a claim of fraud and apparently did so with success, as there was no

finding that appellants engaged in any fraudulent activity. However, the record does not

indicate appellants were ever put on notice to defend against a claim of unjust

enrichment.

       {¶33} Finally, the trial court did not order Dr. Watts to return the marital asset. It

issued a monetary judgment, which appears to be in the nature of a distributive award.

However, the judgment was issued against a third party, not the offending spouse. The

effect of the trial court’s judgment requires appellants to purchase an asset for the

highest possible value, although appellants never agreed to pay that value. Appellants

were willing to purchase the asset for the agreed upon price; nothing suggests they

were willing to pay anything more, let alone the price the trial court ordered them to pay,

which was the highest appraised value. All parties agreed that certain factors were

negatively affecting Dr. Willoughby’s professional practice and negotiated the purchase

price for that practice accordingly.

       {¶34} It would be a dangerous precedent to allow a trial court to “reach back”

when it decides an asset was sold for less than full value and to require purchasers to

pay what the trial court deems is an appropriate purchase price. There is no provision

in the law that requires a purchaser, in the absence of fraud, to pay an increased price

for a marital asset based on the financial misconduct of one of the spouses.

       {¶35} Appellants’ first assignment of error has merit. The trial court abused its

discretion by placing the burden of Dr. Willoughby’s financial misconduct on Dr. Watts.

The trial court’s judgment against Dr. Watts in favor of the “marital estate” is vacated.




                                             11
       {¶36} In its judgment entry granting divorce, the trial court expressly retained

jurisdiction “[i]f for any reason a party does not receive the assets awarded * * * [inter

alia] to make a reasonable and necessary award or order to make the other party

financially whole[.]” Thus, we find it appropriate to remand this matter for consideration

of a financial misconduct remedy directed toward Dr. Willoughby as the trial court

deems appropriate. See Brooks v. Brooks, 6th Dist. Fulton No. F-11-020, 2013-Ohio-

405, ¶14-16 (when unforeseen circumstances defeat a trial court’s equitable division of

marital assets, the trial court may make a distributive award in order to achieve equity if

it expressly retained jurisdiction to make further orders).

       {¶37} Appellants’ fourth assignment of error argues that, by entering a monetary

judgment in favor of the marital estate against Dr. Watts, the trial court abused its

discretion, committed a manifest injustice, and violated public policy.

       {¶38} In their fifth assignment of error, appellants argue that the trial court

denied Dr. Watts due process of law and exposed him to potential multiple liability by

adjudicating Elena’s “third-party claims of fraud and fraudulent conveyance” and thereby

permitting Elena to split her cause of action. Though couched in due process language,

this assignment of error argues that the trial court lacked jurisdiction over Elena’s claim

that the sale of Dr. Willoughby’s dental practice was a fraudulent transfer.

       {¶39} As we have vacated the judgment against Dr. Watts under the first

assignment of error, assignments of error four and five are moot.

       {¶40} Appellants’ third assignment of error contains four sub-issues.         First,

appellants argue the trial court erred in exercising subject matter jurisdiction over

Elena’s third-party claims against Dr. Watts “for fraud and statutory fraudulent transfer




                                             12
where the same claims were filed and pending against between [sic] the parties in the

general division of the common pleas court.” The trial court exercised jurisdiction over

the third-party claim because the dental practice was a marital asset and because Elena

alleged financial misconduct in its sale. Allegations of fraud in the disposition of a

marital asset are within the jurisdiction of the domestic relations court.     See R.C.

3105.171(B); R.C. 3105.171(E)(4). The sub-issue lacks merit.

       {¶41} In their next two sub-issues, appellants argue the trial court erred in

finding that Dr. Willoughby had engaged in financial misconduct and in failing to enter a

distributive award against Dr. Willoughby for his financial misconduct. As discussed

under appellants’ first assignment of error, the entry of judgment against Dr. Watts was

in error. Therefore, any finding of financial misconduct and/or the failure to make a

distributive award against Dr. Willoughby does not affect appellants. These sub-issues

are moot.

       {¶42} Finally, appellants argue the trial court erred by entering a monetary

award against Dr. Watts when the case was tried as a claim of financial misconduct by

dissipation of marital assets. Under appellants’ first assignment of error, we determined

the trial court erred in entering a monetary award against Dr. Watts for unjust

enrichment based on the financial misconduct of Dr. Willoughby. Thus, this issue is

also moot.

       {¶43} Appellants’ third assignment of error has merit only to the extent indicated

in our analysis under the first assignment of error.

       {¶44} In their second assignment of error, appellants argue that the trial court

should have held a hearing on Attorney McGee’s alleged conflict of interest and that




                                            13
Attorney McGee should have been disqualified from representing Elena. A trial court’s

decision on a motion to disqualify counsel is reviewed for an abuse of discretion. 155

N. High, Ltd. v. Cincinnati Ins. Co., 72 Ohio St.3d 423 (1995), syllabus.

       {¶45} The Ohio Supreme Court has held that a hearing must be held on a

motion to disqualify when an attorney leaves a firm that represents one party to an

action and then joins a firm that represents another party to the same action. Dayton

Bar Assn. v. Parisi, 131 Ohio St.3d 345, 350, 2012-Ohio-879, citing Kala v. Aluminum

Smelting & Refining Co., Inc., 81 Ohio St.3d 1 (1998), syllabus. The Court further

stated, “we have never held that a court must hold a hearing before ruling on every

motion for disqualification.” Id. Attorney McGee did not leave one firm for another;

thus, the trial court was not compelled to hold a hearing.

       {¶46} We note that appellants have not assigned as error the trial court’s failure

to disqualify Attorney McGee or his firm. Thus, the issue is not before us. Furthermore,

in their appellate brief, appellants merely argue that a hearing should have been held

because it is likely a hearing would have resulted in disqualification.     There is no

evidence of a conflict of interest in the record from which we could determine that the

trial court abused its discretion by failing to disqualify Attorney McGee. As we have no

proposed evidence to review, we must presume the regularity of the proceedings and

cannot say the trial court abused its discretion in overruling appellants’ motion to

disqualify. See, e.g., City of Willoughby v. Lyons, 11th Dist. Lake No. 2012-L-136,

2013-Ohio-4099, ¶14.

       {¶47} Appellants’ second assignment of error is without merit.

       {¶48} We turn now to the two cross-appeals.




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      {¶49} Elena’s assignment of error argues that the trial court abused its discretion

when it awarded her attorney fees only for work done in the domestic relations division.

She contends that the work done by Attorney McGee in the general division and the

bankruptcy division was necessary to the domestic relations case. We note that, in

response, appellants argue that even the partial award of attorney fees was improper;

however, appellants did not assign any error with regard to the trial court’s decision to

award attorney fees.

      {¶50} A trial court has broad discretion in the award of attorney fees.
            Birath v. Birath (1988), 53 Ohio App. 3d 31, 39, 558 N.E.2d 63. A
            court’s decision on a request for attorney fees will not be reversed
            absent an attitude that is unreasonable, arbitrary, or
            unconscionable. Dunbar v. Dunbar (1994), 68 Ohio St. 3d 369,
            371, 627 N.E.2d 532.

Bates v. Bates, 11th Dist. Ashtabula No. 2000-A-0058, 2001 Ohio App. LEXIS 5428,

*13. Following divorce proceedings, “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.” R.C. 3105.73(B). The trial court may consider any relevant factors, except

that the court may not consider the parties’ assets. Id.

      {¶51} The trial court found that an award of attorney fees was appropriate in light

of Dr. Willoughby’s financial misconduct.        The court took evidence concerning the

amount and reasonableness of the fees and the necessity of the work.          The court

awarded $43,000 to Elena for attorney fees based on work in the domestic relations

division. The court declined to award attorney fees for work done on Elena’s behalf in

the general division and in the bankruptcy court.

      {¶52} Elena argues that once it decided to award her attorney fees, the court

abused its discretion by awarding only part of them. However, the statute specifically



                                            15
grants the trial court discretion to determine whether an award of “all or part” of a party’s

attorney fees is equitable. See R.C. 3105.73(B). Thus, the trial court is not required to

award all attorney fees incurred and requested. We cannot say the trial court abused its

discretion in this award.

       {¶53} Elena’s assignment of error is without merit.

       {¶54} Watts Inc., as assignee of Trustee, asserts one assignment of error and

argues the trial court erred when it ordered payment of Dr. Willoughby’s spousal support

arrearages and Elena’s attorney fees out of Dr. Willoughby’s half of the recovery against

Dr. Watts. The assertion is that Dr. Willoughby’s half of the recovery became part of the

bankruptcy estate and, therefore, should have been administered by the bankruptcy

court, not the domestic relations court.

       {¶55} We have vacated the award against Dr. Watts. Therefore, the claim that

the trial court’s division of that award was in error is moot, as there is no money from Dr.

Watts to divide.

       {¶56} For the foregoing reasons, the trial court’s judgment against Dr. Watts in

favor of the marital estate is vacated. The judgment of the trial court is affirmed with

regard to the award of Elena’s attorney fees. Consistent with this opinion, this matter is

remanded for the trial court to consider a remedy for Dr. Willoughby’s financial

misconduct.



CYNTHIA WESTCOTT RICE, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only.




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