[Cite as Cichanowicz v. Cichanowicz, 2013-Ohio-5657.]




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




LISA CICHANOWICZ, NKA LUTZ,

        PLAINTIFF-APPELLEE,                             CASE NO. 3-13-05

        v.

PHIL CICHANOWICZ,                                       OPINION

        DEFENDANT-APPELLANT.




               Appeal from Crawford County Common Pleas Court
                          Domestic Relations Division
                          Trial Court No. 98-DR-0152

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                         Date of Decision: December 23, 2013




APPEARANCE:

        Philip H. Cichanowicz, Appellant
Case No. 3-13-05


PRESTON, P.J.

        {¶1} Defendant-appellant, Phil Cichanowicz (“Phil”), appeals the January

10, 2013 judgment entry of the Crawford County Court of Common Pleas,

Domestic Relations Division, establishing a final parenting-time schedule, finding

plaintiff-appellee Lisa Cichanowicz, now known as Lisa Lutz (“Lisa”), in

contempt of court, and awarding Phil some of the relief he requested in his

motions for contempt. For the reasons that follow, we affirm in part and reverse in

part.

        {¶2} This case was before us in 2008, and we recited the following facts in

that opinion:

             Phil and plaintiff-appellee, Lisa Cichanowicz (hereinafter

        “Lisa”), were married on May 9, 1987.          (Doc. No. 1).       Three

        children were born as issue of the marriage:             Marie Elise

        Cichanowicz (d.o.b. */*/90) (hereinafter “Marie”); Nicole Erin

        Cichanowicz (d.o.b. */*/92) (hereinafter “Nicole”); and Sarah Ann

        Cichanowicz (d.o.b. */*/96) (hereinafter “Sarah”) (hereinafter

        collectively “the children”). (Id.). On May 3, 1999, the parties were

        divorced, and Lisa was named sole residential parent and legal

        custodian of the parties’ three minor children. (Doc. No. 111 at 2).

        Since the divorce, Lisa has remarried to Craig Lutz. (Id. at 3).


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           On April 12, 2005, Phil filed a motion with the trial court

      requesting a modification of custody and seeking to be named the

      children’s residential parent. (Doc. No. 78). On December 12,

      2005, the Magistrate ordered the parties to attend counseling in an

      effort to improve their communication. (Doc. No. 91). The case

      was stayed and then reactivated on June 30, 2006 after counseling

      was terminated. (Doc. No. 111 at 2). The matter was scheduled for

      hearing in September 2006, but the hearing was continued because

      Phil had changed counsel and a custody evaluation needed to be

      completed. (Id.).

           The motion came on for hearing on November 15, 16, and 28,

      2006 and January 25, 2007 before the Magistrate. (Id.). On March

      2, 2007, the Magistrate ordered that Lisa remain the children’s

      residential parent; however, the Magistrate also ordered: joint

      counseling for Phil and the children; individual counseling for Lisa;

      and more visitation time between Phil and his children. (Id. at 14-

      17). On March 15, 2007, Phil filed objections to the Magistrate’s

      order with the trial court. (Doc. No. 113). On January 29, 2008, the

      trial court overruled Phil’s objections and adopted and approved the

      Magistrate’s Decision. (Doc. No. 135).


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Cichanowicz v. Cichanowicz, 3d Dist. Crawford No. 3-08-04, 2008-Ohio-4779, ¶

2-4.

       {¶3} Phil appealed the trial court’s January 29, 2008 judgment entry, and

on September 22, 2008, this Court affirmed the trial court’s decision to adopt and

approve the magistrate’s March 2, 2007 decision. (Doc. Nos. 139, 162, 163);

Cichanowicz, 2008-Ohio-4779, at ¶ 28.

       {¶4} While that appeal was pending before this Court, the parties continued

to litigate in the trial court over contempt-of-court allegations, tax exemptions, and

child support. (See Doc. Nos. 114, 130, 132, 136, 144, 145, 146, 148, 149, 156,

157, 160).

       {¶5} On September 10, 2008, the trial court judge sua sponte recused

himself and the magistrate from further proceedings, and on October 20, 2008, the

Supreme Court of Ohio assigned a new judge to the case, effective September 10,

2008. (Doc. Nos. 161, 164).

       {¶6} On June 29, 2009, Phil filed a motion for contempt, arguing that Lisa

violated the March 2, 2007 order by denying him parenting time and by failing to

attend counseling. (Doc. No. 166). Phil requested that the trial court schedule an

immediate final hearing, jail Lisa for 30 days, award him make-up parenting time,

and order Lisa to pay court costs and his attorney’s fees. (Id.).




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       {¶7} The trial court held a telephone status conference on July 9, 2009, in

which counsel for Lisa and Phil participated. (See Doc. No. 172). Three weeks

after that status conference, the trial court sua sponte joined as party defendants

Phil and Lisa’s minor children and appointed guardian ad litem (“GAL”) Heather

M. Cockley to determine their best interests. (Id.).

       {¶8} On August 20, 2009, Phil filed a “motion to revise [GAL]’s

involvement.” (Doc. No. 175).       In that motion, Phil requested that the GAL’s

duties not commence until after the trial court held a hearing on Phil’s June 29,

2009 contempt motion, if the trial court determined based on its findings at the

hearing that a GAL’s involvement was warranted. (Id.).

       {¶9} On September 4, 2009, the trial court held a partial hearing on Phil’s

June 29, 2009 motion for contempt. (See Sept. 4, 2009 Tr. at 2); (Doc. No. 187).

The case docket saw a flurry of activity that day as well. Among the filings was

Phil’s second motion for contempt, in which he argued that Lisa violated the

March 2, 2007 order by denying him parenting time, most of which was to have

occurred after Phil’s June 29, 2009 motion for contempt. (Doc. No. 178). Phil

requested that the trial court jail Lisa for 60 days, award him make-up parenting

time, and order Lisa to pay court costs and his attorney’s fees. (Id.). Also on

September 4, 2009, the trial court issued an order requiring that the parties refrain

from disparaging one another in the presence of their children. (Doc. No. 180).


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Finally on that day, Lisa filed a “motion for modification of parenting time and for

in-camera interview,” requesting that the trial court interview the minor children in

chambers and arguing, without elaborating, that modifying Phil’s parenting time

would serve the best interests of the minor children. (Doc. No. 183).

        {¶10} On September 21, 2009, the trial court filed a judgment entry

scheduling Phil’s June 29, 2009 contempt hearing for additional hearing days and

ordering Lisa and Phil to deposit additional funds toward GAL fees. (Doc. No.

187).

        {¶11} On October 22, 2009, GAL Cockley filed under seal a report and

recommendation after reviewing documents and interviewing Phil, Lisa, and their

two minor daughters. (Doc. No. 189). She recommended that the trial court find

Lisa guilty of contempt and sentence her to three days in jail, suspended on

condition that she purge her contempt by complying with certain conditions. (Id.).

        {¶12} The trial court held a hearing on November 12, 2009. (See Nov. 12,

2009 Tr. at 10). The parties stipulated at the hearing and in a filing that Lisa was

in contempt of court “as alleged, for denial of parenting time pertaining to Nicole

and Sarah Cichanowicz, and for failure to abide by previous counseling orders”

and that Phil incurred attorney’s fees, as set forth in an exhibit, related to his

contempt motions. (Nov. 12, 2009 Tr. at 15); (Doc. No. 192). Also at the hearing,

the parties agreed to a temporary order, which the trial court filed on December 3,


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2009. (Nov. 12, 2009 Tr. at 17-31); (Doc. No. 197). The agreed temporary order

set forth parenting time for Phil in November and December 2009 and ordered

counseling for the two minor daughters with the goal being their reunification with

Phil. (Id.); (Id.). When it filed the agreed temporary order, the trial court also

filed a judgment entry finding Lisa “guilty of contempt, as alleged” in Phil’s June

29, 2009 and September 4, 2009 contempt motions and imposing a 10-day jail

sentence on Lisa, which the trial court suspended on condition that Lisa, among

other things, attend counseling and abide by the agreed temporary order. (Doc.

No. 198). The trial court reserved the issues of make-up parenting time and

assessment of court costs, GAL fees, and attorney’s fees. (Id.).

       {¶13} On November 19 and 23, 2009, respectively, Phil and Lisa submitted

to the trial court documents concerning their income and finances, per the trial

court order at the November 12, 2009 hearing. (Doc. Nos. 194, 195).

       {¶14} On December 17, 2009, Phil filed a third motion for contempt. (Doc.

No. 202). In it, Phil argued that Lisa had failed to provide her email address to

Phil, as ordered by the trial court, and failed to provide a full schedule of the

children’s activities. (Id.). He requested that the trial court jail Lisa for 90 days

and order Lisa to pay court costs and his attorney’s fees. (Id.).




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         {¶15} Three hours after Phil filed his third motion for contempt, Lisa filed

handwritten documents containing her email address and the children’s schedules.

(Doc. No. 203).

         {¶16} On December 28, 2009, Phil filed a “motion to dismiss [Lisa’s]

motion for modification of parenting time.” (Doc. No. 206). In that motion, Phil

argued that because Lisa failed to pay her share of GAL fees, the trial court should

dismiss her motion to modify parenting time, which the trial court said it might do

if she failed to pay. (Id.).

         {¶17} On January 11, 2010, the trial court issued a “consent entry/order

approving GAL fees,” after GAL Cockley had filed two motions for the approval

of GAL fees. (Doc. Nos. 211, 193, 200). In the consent entry, the parties agreed

to the release of funds for services rendered by GAL Cockley between July 30,

2009 and November 30, 2009 and to additional GAL fee payments and deposits.

(Id.).   The parties reserved the right to request reallocation of GAL fees for

reasons such as contempt of court findings. (Id.).

         {¶18} On January 13, 2010, the trial court filed a judgment entry finding

that Lisa failed to comply with the conditions the trial court required to purge her

contempt, and it ordered Lisa jailed for one day. (Doc. No. 212).

         {¶19} On February 8, 2010, Phil filed a “motion to vacate agreed temporary

order filed December 8, 2009 or in the alternative modify said order.” (Doc. No.


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213). In that motion, Phil argued that the agreed temporary order was serving “the

opposite purpose of its intent” because Phil had no enforceable parenting time.

(Id.). Although Phil signed his name to the agreed temporary order, he argued that

it was “an unstructured, unbounded and undefined Order.” (Id.).

      {¶20} On March 1, 2010, GAL Cockley filed her “third motion for

approval of [GAL] fees.” (Doc. No. 215).

      {¶21} On March 19, 2010, the trial court issued an “order approving [GAL]

fees,” which ordered the release of funds for services rendered by GAL Cockley

between December 1, 2009 and January 29, 2010 and that Phil and Lisa make

additional GAL fee payments and deposits. (Doc. No. 218).

      {¶22} On May 13, 2010, Phil filed a “request/motion for court to rule on

assessment of attorney fees; court costs; and GAL fees pertaining to the contempt

finding against [Lisa].” (Doc. No. 219). Phil argued that the trial court should

order Lisa to pay his attorney’s fees, the court costs, and the GAL fees related to

her contempt. (Id.).

      {¶23} On May 24, 2010, GAL Cockley filed her “fourth motion for

approval of [GAL] fees.” (Doc. No. 222).

      {¶24} On June 8, 2010, GAL Cockley filed under seal her second report

and recommendation. (Doc. No. 223). In it, she recommended that Phil have

parenting time with Nicole as she desired because she would be 18 on October 22,


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2010, she did not wish to have any contact with Phil at that time, and Phil had not

had parenting time with her for an extended period of time. (Id.). GAL Cockley

recommended that Phil have parenting time with Sarah as recommended by

Sarah’s counselor because Phil had not had unrestricted parenting time with Sarah

for an extended period of time, Sarah did not wish to have any contact with Phil at

that time, Sarah’s counselor reported that there had been some progress in

counseling, Phil did not seem to understand the effects of his behavior in

alienating his children from him, and until Phil was able to understand those

effects and modify his behavior, his children were unlikely to want to have contact

with him. (Id.). GAL Cockley recommended that the trial court order Phil to

begin counseling with a neutral counselor who could help him understand the

effects of his behavior on his children. (Id.).

       {¶25} On June 23, 2010, Phil filed a fourth motion for contempt, this time

arguing that Lisa failed to abide by the trial court’s order “relative to the minor

child(ren)’s orthodontia treatment.” (Doc. No. 227). He requested that the trial

court jail Lisa for 30 days, “assess all orthodontia costs to [Lisa] or at a minimum

grant [Phil] substantial relief as to any payment(s) of orthodontia expenses,” and

order Lisa to pay court costs and his attorney’s fees. (Id.).

       {¶26} On July 12, 2010, Lisa filed a “motion for modification of parenting

time, for in-camera interview, for [Phil] to obtain independent counselor and


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complete parenting class.” (Doc. No. 231). Lisa requested that the trial court

modify parenting time consistent with GAL Cockley’s report, interview the minor

children in camera, order Phil to enroll in counseling, and order Phil to complete a

parenting class. (Id.). That same day, Lisa withdrew her September 4, 2009

“motion for modification of parenting time and for in-camera interview.” (Doc.

No. 232).

       {¶27} On July 26, 2010, the trial court filed a journal entry, which it signed

on July 21, 2010, ordering Lisa to pay in 12 monthly installments a total of $2,500

toward Phil’s attorney’s fees, court costs related to Phil’s June 29, 2009 contempt

motion and May 13, 2010 motion for a ruling, and GAL fees “as of the date of

trial” of $1,117.50. (Doc. No. 237).

       {¶28} Also on July 26, 2010, the trial court filed an interim journal entry,

which it signed on July 22, 2010, allocating responsibility for GAL fees in

addition to the amounts for which the trial court allocated responsibility in the

journal entry it signed on July 21, 2010. (Doc. No. 236). The trial court ordered

GAL Cockley to generate an updated fee statement based on the entries the trial

court signed on July 21 and 22, 2010. (Id.). The trial court also ordered Phil and

Lisa to “equally pay any [GAL] fees for services rendered after July 22, 2010,

without further order of the court.” (Id.).




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        {¶29} On August 20, 2010, GAL Cockley filed an amended fee statement,

as ordered by the trial court in the interim journal entry that it signed on July 22,

2010. (Doc. No. 238).

        {¶30} On August 25, 2010, Phil filed his notice of appeal of the trial court’s

July 26, 2010 journal entry, ordering Lisa to pay fees and costs. (Doc. No. 239).

        {¶31} On September 3, 2010, Lisa filed a notice of automatic stay

following her filing a Chapter 7 bankruptcy petition with the United States

Bankruptcy Court, Northern District of Ohio. (Doc. No. 242).

        {¶32} On September 22, 2010, Phil filed a “motion for contempt (fourth

motion),”1 arguing that Lisa failed to pay the first payment installment to Phil for

his attorney’s fees. (Doc. No. 245). He requested that the trial court jail Lisa for

60 days and order her to pay court costs and his attorney’s fees. (Id.).

        {¶33} Also on September 22, 2010, the trial court filed a judgment entry

granting Lisa’s July 12, 2010 motion for an in-camera interview and noting that

the trial court conducted an interview in the presence of the GAL on August 30,

2010. (Doc. No. 246).

        {¶34} On October 6, 2010, the trial court filed a judgment entry containing

an interim case management plan. (Doc. No. 248). In it, the trial court ordered

that the parties continue to communicate only by email until further order of the


1
 Although Phil labeled this contempt motion as his fourth, it was the fifth contempt motion he filed since
his initial contempt motion of June 29, 2009.

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trial court, that Lisa timely inform Phil of each and every activity involving the

minor children, and that the parties and their children proceed with counseling.

(Id.). The trial court also stated that it would appoint a successor GAL to GAL

Cockley following her anticipated motion to withdraw. (Id.).

        {¶35} On October 18, 2010, the trial court issued a judgment entry granting

Phil’s motion to vacate the December 8, 2009 agreed temporary order. (Doc. No.

252). That same day, the trial court filed an “interim order journal entry of

referral,” referring Lisa, Phil, and Sarah to mental health professionals. (Doc. No.

253).

        {¶36} On October 27, 2010, Lisa filed a “motion to refer parties to a mental

health professional in network of [Lisa’s] health insurance provider.” (Doc. No.

255). On November 1, 2010, Phil filed a “notice of financial impossibility,”

informing the trial court that he would be unable to meet his financial obligation to

the mental health professional appointed by the trial court in its October 18, 2010

interim order. (Doc. No. 256).

        {¶37} On November 18, 2010—following a three-day hearing held on July

12 and September 22 and 29, 2010—the trial court filed a judgment entry, in

which it denied Lisa’s motion to suspend or terminate Phil’s parenting time and

granted Lisa’s motion to modify Phil’s parenting time. (Doc. No. 260). The trial

court explained that its decision to grant Lisa’s motion to modify Phil’s parenting


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time and to set a new parenting schedule was “not a final order” and was “part of a

plan to attempt to achieve reunification set forth in other orders including future

orders.” (Id.).

       {¶38} GAL Cockley filed a motion to withdraw as GAL, and the trial court

granted it on December 9, 2010. (Doc. Nos. 261, 263).

       {¶39} On December 27, 2010, a “discharge of debtor in a Chapter 7 case,”

signed by a United States bankruptcy judge and granting Lisa a discharge of debts,

was filed on December 27, 2010. (Doc. No. 264).

       {¶40} On January 27, 2011, the trial court filed a judgment entry ruling on

Phil’s contempt motions of December 17, 2009 and June 23, 2010. (Doc. No.

268). The trial court found Lisa in contempt for her failure to timely provide her

email address to Phil, her scheduling orthodontia treatment other than that ordered

by the trial court, and her failure to inform Phil of all of the minor children’s

activities. (Id.). The trial court did not impose purge conditions, however, noting

that they would have been “fruitless” under the circumstances. (Id.). The trial

court awarded Phil $500 in attorney’s fees and ordered Lisa to “pay the costs of

these proceedings within sixty days.” (Id.).

       {¶41} On February 11, 2011, Phil filed a “notice of Chapter 7 bankruptcy

status pertaining to Lisa Lutz,” informing the trial court of his belief that Lisa’s

“Chapter 7 bankruptcy may not in fact be discharged.” (Doc. No. 269).


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       {¶42} Nicole turned 18 on October 22, 2010 and was emancipated on June

5, 2011 when she graduated from high school. (See Doc. No. 270). This left

Sarah as Phil and Lisa’s only remaining minor child. (See id.).

       {¶43} On July 21, 2011, Phil filed a “motion for attorney fees,” in which he

requested that the trial court issue an order pursuant to R.C. 3105.73 awarding him

$15,000 in additional attorney’s fees, which included the attorney’s fees he

incurred in Lisa’s bankruptcy proceeding preserving the trial court’s $2,500 award

of attorney’s fees for his contempt motions. (Doc. No. 271). Phil also requested

that the trial court award him courts costs, including GAL fees. (Id.).

       {¶44} On August 29, 2011, Phil filed a “motion for contempt – sixth [ ]

filing,” arguing that Lisa failed to honor the parenting time schedule set forth in

the November 18, 2010 entry and that she failed to inform Phil of Sarah’s

activities. (Doc. No. 272). Phil requested that the trial court jail Lisa for 90 days,

impose a $500 fine, assess Lisa court costs and his attorney’s fees, and order

make-up parenting time. (Id.).

       {¶45} On October 3, 2011, upon Phil’s motion, this Court dismissed Phil’s

appeal of the trial court’s July 26, 2010 journal entry, ordering Lisa to pay fees

and costs. (Doc. No. 274).

       {¶46} On December 12, 2011, Phil filed a “motion for contempt – seventh [

] filing.” (Doc. No. 278). In that motion, Phil argued that Lisa violated the trial


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court’s orders by continuing to fail to honor his parenting time as set forth in the

November 18, 2010 entry, by failing to inform him of Sarah’s activities, and by

using Sarah to negotiate parenting time with him. (Doc. No. 278). Phil requested

that the trial court jail Lisa for 90 days, impose a $500 fine, assess Lisa court costs

and his attorney’s fees, and order make-up parenting time. (Id.).

        {¶47} On February 29, 2012, the trial court filed an order, appointing Adam

C. Stone as successor GAL. (Doc. No. 284). The trial court ordered that Phil pay

GAL Stone’s initial deposit of $1,000 and that the “parties shall be responsible for

expenses incurred by [GAL Stone] as the result of this appointment.” (Id.).

        {¶48} On March 12, 2012, the trial court filed a “temporary order

consolidating entries and issuing additional temporary orders,” following a

December 12, 2011 hearing. (Doc. No. 285). In that temporary order, the trial

court said that it consolidated its entries of September 4, 2009 and November 18,

2009,2 set forth an updated parenting schedule, and vacated its October 18, 2010

interim order journal entry of referral, in which the trial court referred Lisa, Phil,

and Sarah to mental health professionals. (Id.).

        {¶49} On March 21, 2012, Phil filed an “objection to appointment of

second [GAL] and assessment of [GAL] fee deposit.” (Doc. No. 286). In that

“objection,” Phil requested that the trial court vacate its February 29, 2012 order


2
 The record does not contain an entry dated November 18, 2009; however, the record does contain an entry
dated November 18, 2010, which established a new parenting-time schedule.

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appointing GAL Stone. (Id.). Phil objected to the further involvement of a GAL,

based on what Phil called Lisa’s past resistance to “all third party interventions,”

and to the trial court’s ordering him to pay the entire initial deposit of $1,000

required by GAL Stone. (Id.).

        {¶50} On April 30, 2012, Phil filed a “motion for contempt – eighth [ ]

filing,” in which he argued that Lisa was in contempt for failing to honor his court-

ordered parenting time on April 5, 2012.3 (Doc. No. 287). Phil requested that the

trial court jail Lisa for 90 days, impose a $1,000 fine, assess Lisa court costs and

his attorney’s fees, and order make-up parenting time. (Id.).

        {¶51} On May 16, 2012, Lisa filed a “motion for in-camera interview,” in

which she requested that the trial court interview Sarah “regarding her wishes and

concerns in determining her best interest.” (Doc. No. 290).

        {¶52} On June 15, 2012, Phil filed a “motion for contempt – ninth [ ]

filing.” (Doc. No. 292). In that motion, Phil said that Lisa had violated the trial

court’s orders by stopping all of his parenting time. (Id.). He listed five occasions

in May and June 2012 when he said Lisa failed to honor his parenting time. (Id.).

Phil requested that the trial court jail Lisa for at least 90 days, impose a $1,000

fine, assess Lisa court costs and his attorney’s fees, and order make-up parenting

time. (Id.).

3
  In Phil’s motion, he said he attached an exhibit containing email correspondence that “demonstrat[ed]
[Lisa’s] unwillingness to abide by the current Court Order.” (Doc. No. 286). That exhibit does not appear
in the record. (See id.).

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       {¶53} On July 2, 2012, Phil filed a “motion for contempt – tenth [ ] filing.”

(Doc. No. 298).     In that motion, Phil argued that notwithstanding apparent

progress in a June 22, 2012 hearing and in-chambers meeting, Lisa failed to honor

Phil’s court-ordered parenting time on June 24, 2012. (Id.). Phil requested that

the trial court jail Lisa for the maximum amount of time possible, impose a $1,000

fine, assess Lisa court costs and his attorney’s fees, order make-up parenting time,

and order Sarah placed in his immediate care. (Id.).

       {¶54} On August 13, 2012, GAL Stone filed a motion for contempt against

Phil. (Doc. No. 302). In it, GAL Stone moved the trial court for an order holding

Phil in contempt for failing to pay the $1,000 GAL deposit as ordered by the trial

court on February 29, 2012. (Id.). GAL Stone requested that the trial court order

Phil jailed for the maximum amount of time possible, order Phil to pay GAL

Stone’s entire fee of $1,531.80, and assess Phil court costs associated with GAL

Stone’s motion for contempt. (Id.).

       {¶55} On January 10, 2013—following a September 28, 2012 hearing—the

trial court filed its judgment entry that is now on appeal before this Court. (Doc.

No. 305). The trial court explained that on September 28, 2012, “this cause came

on for hearing on [Phil]’s multiple motions: to modify parenting time filed July 12,




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2012,4 to show cause against [Lisa] filed on August 29, December 12, 2011, April

30, June 15, and July 2, 2012, and for attorney fees filed July 21, 2011; the

[GAL]’s motion to show cause against [Phil] filed August 13, 2012, [Lisa]’s

motion for an in camera interview, and upon the evidence.” (Id.). The trial court

noted that Phil “also filed objections to appointment of Adam Stone as [GAL] and

assessment of his fees as a deposit on March 21, 2012.” (Id.).

         {¶56} In its January 10, 2013 judgment entry, the trial court noted that “on

[Phil]’s motion to modify parenting time,” GAL Stone testified concerning

Sarah’s place in the middle of Phil and Lisa’s disputes. (Id.). The trial court said

that “[a]fter [GAL Stone] testified * * *, the parties agreed that it was in the minor

child’s best interest that the interim order would be the final order of the court.”

(Id.). The trial court then made its November 18, 2010 “prior agreed judgment

entry”5 the final order of the trial court effective September 28, 2012. (Id.).




4
  The record reflects that there were no filings by any party on July 12, 2012; however, on July 12, 2010,
Lisa, not Phil, filed a “motion for modification of parenting time, for in-camera interview, for defendant to
obtain independent counselor and complete parenting class.” (Doc. No. 231). At the September 28, 2012
hearing, Phil’s attorney responded affirmatively when the trial court stated, “[t]here is also a request,
according to [Phil’s counsel], for a ruling as a final order on a motion to modify parenting time, filed July
12th, 2010.” (Sept. 28, 2012 Tr. at 38). It appears that because the trial court had not issued a final
decision concerning parenting time following Lisa’s July 12, 2010 motion for modification of parenting
time, Phil’s counsel requested that the trial court issue a final decision concerning parenting time. (See id.
at 38, 40).
5
  Although the trial court described its November 18, 2010 judgment entry as “agreed,” a review of that
filing does not indicate agreement of the parties. (See Doc. No. 260).

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        {¶57} The trial court noted that Phil voluntarily withdrew his “fourth

motion” for contempt, filed on September 22, 2011,6 and the trial court dismissed

it at Phil’s costs. (Id.). (See also Sept. 28, 2012 Tr. at 42-43).

        {¶58} As for Phil’s sixth, seventh, eighth, ninth, and tenth contempt

motions and motion for attorney’s fees, the trial court concluded that Phil “proved

by clear and convincing evidence that [Lisa] is guilty of contempt of court in each

motion to show cause for failure to comply with the prior orders of the court

regarding parenting time” and that Lisa “failed to prove a valid defense to each of

the motions to show cause to provide court-ordered parenting time.” (Doc. No.

305). The trial court said, “[i]t is equitable to award [Phil] attorney fees given

[Lisa]’s continuing course of conduct toward [Phil]”; however, “[b]ased on the

incomes of the parties” and “the conduct of each of the parties,” the trial court

awarded Phil only “$3,000 [in attorney’s fees] for the sixth and tenth motions for

contempt, and the payment of court costs for the sixth and tenth motions for

contempt.” (Id.). The trial court did not sentence Lisa to jail because it said “none

was requested by [Phil].” (Id.).

        {¶59} The trial court noted that GAL Stone and Phil “reached an agreement

on the issue of payment of a $1,000 deposit after [GAL Stone] proceeded on his
6
  The record reflects that there were no filings on September 22, 2011. It appears that the trial court was
referring to Phil’s September 22, 2010 “motion for contempt (fourth motion).” (Doc. No. 245). Phil did
not file a “fifth” motion for contempt, instead proceeding to his “sixth” motion on August 29, 2011,
because his September 22, 2010 “motion for contempt (fourth motion)” was actually his fifth motion,
which he apparently realized by the time he filed his sixth motion on August 29, 2011. (See Doc. Nos. 227,
245, 272).

                                                  -20-
Case No. 3-13-05


motion in contempt against Phil.” (Id.). The trial court ordered that Phil pay GAL

Stone’s fee “at the rate of $50.00 monthly, commencing October 15, 2012, and on

the fifteenth day of each month thereafter until the deposit ordered of $1,000.00 is

paid in full,” at which point GAL Stone “shall voluntarily dismiss the motion for

contempt filed August 13, 2012.” (Id.).

        {¶60} The trial court “dismissed” at Phil’s costs his March 21, 2012

“objection to appointment of second [GAL] and assessment of [GAL] fee

deposit,” noting that prior to the September 28, 2012 hearing, the trial court

“notified the parties that the objections to a judge’s order to appoint a second

[GAL] and assess a [GAL] fee deposit had no basis in fact or law (See Judgment

Entry of October 6, 2010).” (Id.).

        {¶61} The trial court granted Lisa’s motion for an in-camera interview and

stated that it had “conducted the interview on the record with [GAL Stone]

present” prior to the September 28, 2012 hearing. (Id.).

        {¶62} Finally, the trial court ordered “that [Phil]’s motion to modify

parenting time on July 12, 2010, is dismissed at [Phil]’s costs.” (Id.).

        {¶63} Phil filed his notice of appeal on February 8, 2013. (Doc. No. 306).

He raises eight assignments of error for our review.7 We first review together the


7
  Lisa has failed to file an appellee’s brief in this case. Under those circumstances, App.R. 18(C) provides
that we “may accept the appellant’s statement of the facts and issues as correct and reverse the judgment if
appellant’s brief reasonably appears to sustain such action.” Heilman v. Heilman, 3d Dist. Hardin No. 6-
12-08, 2012-Ohio-5133, ¶ 16.

                                                   -21-
Case No. 3-13-05


first four assignments of error addressing parenting time. We then review together

the final four assignments of error addressing fees and costs.

                            Assignment of Error No. I

       The trial court erred to the prejudice of defendant-appellant
       when the trial court, subsequent to a motion for finding of
       contempt for failure to comply with a parenting-time order,
       granted plaintiff-appellee’s motion to modify and/or decreased
       [sic] parenting-time [sic].

                           Assignment of Error No. II

       The trial court erred to the prejudice of defendant-appellant by
       not re-establishing the original parenting-time schedule in a
       timely manner, that is, not specifying a full, regular visitation
       schedule within a temporary or final order concurrent with or
       soon-after [sic] the finding of contempt.

                           Assignment of Error No. III

       The trial court erred to the prejudice of defendant-appellant by
       abandoning the original parenting-time schedule (the schedule
       in effect at the time of the motion to show contempt filed June
       29, 2009) from the final order (filed January 10, 2013).

                           Assignment of Error No. IV

       The trial court erred to the prejudice of defendant-appellant by
       not enforcing the provisions in court orders pertaining to
       parenting-time [sic].

       {¶64} Phil’s first four assignments of error address the trial court’s

decisions concerning parenting time. In his first assignment of error, Phil argues

that the trial court erred by appointing a GAL and proceeding with the

adjudication of Lisa’s motion to modify parenting time while his contempt

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Case No. 3-13-05


motions were pending. In his second assignment of error, he argues that the trial

court erred by not reestablishing the parenting-time schedule set forth in the

magistrate’s March 2, 2007 order after the trial court found Lisa in contempt. In

Phil’s third assignment of error, he argues that the trial court erred by abandoning

the March 2, 2007 order and establishing a different parenting-time schedule in its

January 10, 2013 judgment entry. In his fourth assignment of error, he argues that

the trial court erred by delaying the adjudication of his contempt motions and by

not enforcing the parenting-time schedule.

       {¶65} We first address Phil’s arguments that the trial court erred by

appointing a GAL. Civ.R. 75(B)(2) provides for the appointment of a GAL in a

post-divorce proceeding: “[w]hen it is essential to protect the interests of a child,

the court may join the child of the parties as a party defendant and appoint a

guardian ad litem and legal counsel, if necessary, for the child and tax the costs * *

*.” “A trial court is granted broad discretion under Civ.R. 75(B)(2) with respect to

appointment of guardians ad litem and orders for payment of their fees.” Gabriel

v. Gabriel, 6th Dist. Lucas No. L-08-1303, 2009-Ohio-1814, ¶ 15 (citations

omitted). Therefore, we review the trial court’s decision to appoint a GAL for

abuse of discretion. See id.

       {¶66} Here, the trial court filed its entry appointing GAL Cockley on July

31, 2009—a month after Phil filed his first contempt motion on June 29, 2009, and


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a month before Lisa filed her initial motion for modification of parenting time on

September 4, 2009. (Doc. Nos. 172, 175, 183). In its entry, the trial court made

the necessary finding—that appointing a GAL was “essential to protect the

interests of [Lisa and Phil’s] minor children”—and appointed GAL Cockley.

(Doc. No. 172). The trial court observed that “the parties are not in agreement

regarding allocation of parental rights or parenting time of their minor children”

and noted that “the parties and counsel agreed to the appointment of this [GAL].”

(Id.). Phil apparently shifted course three weeks after the trial court appointed

GAL Cockley. He filed a “motion to revise [GAL]’s involvement,” arguing that

“the problem seems to be more with enforcement of Court Orders rather [than] a

lack of Court Orders.” (Doc. No. 175).

        {¶67} We conclude that the trial court did not abuse its discretion by

appointing a GAL under Civ.R. 75(B)(2). Although there was no motion for

modification of parenting time pending when the trial court appointed GAL

Cockley, the trial court apparently learned in a telephone status conference that the

parties disagreed over how parenting time should be allocated. (Doc. No. 172).

Indeed, Lisa filed a motion for modification of parenting time on September 4,

2009—shortly over a month after the trial court appointed GAL Cockley.8 Most

importantly, the trial court found that appointing a GAL was “essential to protect


8
 On July 12, 2010, Lisa withdrew her September 4, 2009 motion and filed a new motion for modification
of parenting time. (Doc. Nos. 231, 232).

                                               -24-
Case No. 3-13-05


the interests of their minor children,” satisfying Civ.R. 75(B)(2)’s prerequisite.

See Civ.R. 75(B)(2).

       {¶68} That Phil and his attorney were not on the same page when Phil’s

counsel apparently agreed to the appointment of a GAL during a July 9, 2009

telephone status conference is of no consequence. First and foremost, it is within

the trial court’s discretion to appoint a GAL when the trial court finds that doing

so is essential to protect a minor child’s interest. See Gabriel, 2009-Ohio-1814, at

¶ 15. Second, “a client is bound by the acts of his attorney.” Thirion v. Neumann,

11th Dist. Ashtabula No. 2004-A-0032, 2005-Ohio-4486, ¶ 17, citing Link v.

Wabash RR. Co., 370 U.S. 626, 633-634, 82 S.Ct. 1386 (1962).              See also

Advantage Bank v. Waldo Pub, L.L.C., 3d Dist. Marion No. 9-08-67, 2009-Ohio-

2816, ¶ 52 (agreeing with the trial court’s statement that “a client is bound by the

acts of his attorney, whether authorized or not”).

       {¶69} For these reasons, we conclude that the trial court did not abuse its

discretion when it appointed a GAL.

       {¶70} We next turn to Phil’s arguments challenging the trial court’s

modified parenting-time schedule, found in a November 18, 2010 entry that the

trial court adopted in its January 10, 2013 judgment entry as its final order

concerning parenting time.      (See Doc. No. 305).      “R.C. 3109.051 governs

modification of a parenting time schedule.” Williamson v. Cooke, 10th Dist.


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Case No. 3-13-05


Franklin No. 09AP-222, 2009-Ohio-6842, ¶ 17, citing Braatz v. Braatz, 85 Ohio

St.3d 40 (1999), paragraph one of the syllabus. “When revising a parenting time

schedule, a trial court must establish a schedule that is in the best interest of the

child, and in doing so, it must consider the factors set forth in R.C. 3109.051[D].”

Id., citing Braatz at paragraph two of the syllabus.        “The party seeking the

modification of the parenting time schedule bears the burden of proving that the

requested change is in the child’s best interest.” Id. (citations omitted).

       {¶71} “A trial court’s establishment of a non-residential parent’s visitation

rights is within its sound discretion and will not be disturbed on appeal absent a

showing of an abuse of discretion.” Walton v. Walton, 3d Dist. Union No. 14-10-

21, 2011-Ohio-2847, ¶ 19, citing Fordham v. Fordham, 3d Dist. Logan No. 8-08-

17, 2009-Ohio-1915, ¶ 18. See also Appleby v. Appleby, 24 Ohio St.3d 39, 41

(1986). “An abuse of discretion suggests the trial court’s decision is unreasonable

or unconscionable.” Walton at ¶ 19, citing Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983). The trial court’s discretion concerning visitation is broader than

its discretion concerning child custody matters. Id., citing Elson v. Elson, 3d Dist.

Shelby No. 17-04-16, 2005-Ohio-3228, ¶ 11. Ultimately, “the trial court must

exercise its discretion in the best interest of the child.” Id., citing Bodine v.

Bodine, 38 Ohio App.3d 173, 175 (10th Dist.1988).




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       {¶72} “Additionally, we note that the trier of fact is in the best position to

observe the witnesses, weigh evidence, and evaluate testimony.” Id. at ¶ 20, citing

Clark v. Clark, 3d Dist. Union No. 14-06-56, 2007-Ohio-5771, ¶ 23.                “A

reviewing court should not reverse a decision simply because it holds a different

opinion concerning the credibility of the witnesses and evidence submitted before

the trial court.” Id., quoting Clark at ¶ 23 (internal quotation marks omitted). “A

finding of an error in law is a legitimate ground for reversal, but a difference of

opinion on credibility of witnesses and evidence is not.” Id., quoting Clark at ¶ 23

(internal quotation marks omitted).

       {¶73} Here, per the trial court’s January 10, 2013 judgment entry, the

November 18, 2010 entry contains its final order concerning parenting time.

(Doc. No. 305). The trial court issued its November 18, 2010 entry after a three-

day hearing held on July 12, September 22, and September 29, 2010. (Doc. No.

260). In issuing its parenting-time schedule, the trial court listed and said it

considered the sixteen factors found in R.C. 3109.051(D). (Id.). The trial court

said it “considered all evidence and the exhibits, considered the [GAL]’s report

and recommendation, the court’s conducting [sic] in camera interview with the

parties’ minor child, Sarah, and the case history.”         (Emphasis sic).    (Id.).

Specifically, the trial court considered “the failure of prior orders to achieve

reunification failing to accomplish that end due to the actions of the parties, some


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Case No. 3-13-05


[sic] more than another, the failure of year-long counseling agreed to by the parties

and ordered to attempt reunification again, and Sarah’s wishes and concerns * *

*.” (Id.).

       {¶74} In its January 10, 2013 entry, the trial court said it “reviewed the

record including the pleadings filed, listened to the evidence, read the exhibits,

considered all the evidence, the closing arguments, and all statutory and case law

requirements.” (Doc. No. 305). The trial court also summarized the testimony

GAL Stone offered at the September 28, 2012 hearing:

       His testimony was as follows: both parents have placed Sarah in the

       middle of their personal parental disputes. Sarah felt pressured by

       both and she is aware of court proceedings. The [GAL] believed

       that Lisa never encouraged Sarah to see or otherwise interact with

       Phil.   Phil’s actions do not jeopardize Sarah’s health, safety or

       welfare.    However, for many years, Lisa has “demonized” (per

       [GAL]) Phil as a person/parent and Sarah believed her mother’s

       characterizations of Phil. Phil lacked insight into decisions that,

       while not harmful to his daughter, impacted her feelings for and

       relationship with him. His pursuit of enforcing his court-ordered

       parenting continued for years knowing that Sarah did not want to see

       him created her oppositional attitude given her becoming a teenager


                                        -28-
Case No. 3-13-05


       with normal numerous activities impacting Phil’s parenting time

       order.

(Id.). The trial court explained that “[a]fter the [GAL] testified as above, the

parties agreed that it was in the minor child’s best interest that the interim order

would be the final order of court.” (Id.).

       {¶75} Phil argues that he never agreed that it was in Sarah’s best interest

that the trial court adopt its November 18, 2010 entry as the final parenting-time

schedule. The transcript of the September 28, 2012 hearing before this Court

appears to omit portions of the hearing, including GAL Stone’s testimony. While

an appellant is allowed under App.R. 9(B)(1) to include in the record only those

“proceedings the appellant considers necessary,” an appellate court presumes

regularity when an appellant omits a portion of the record necessary for its review.

Black v. St. Marys Police Dept., 3d Dist. Mercer No. 10-11-11, 2011-Ohio-6697, ¶

11-12 (“‘When portions of the transcript necessary for resolution of assigned

errors are omitted from the record, the reviewing court has nothing to pass upon

and thus, as to those assigned errors, the court has no choice but to presume the

validity of the lower court’s proceedings, and affirm.’”), quoting Knapp v.

Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). Because Phil has omitted

from the record a portion of the proceedings necessary for our review, we presume




                                        -29-
Case No. 3-13-05


that he agreed, as the trial court said he did, that it was in Sarah’s best interest that

the November 18, 2010 entry be the final order concerning parenting time.

       {¶76} Even assuming Phil did not agree, he has not suggested why the

November 18, 2010 entry should not have been the trial court’s final order

concerning parenting time. While the trial court did make some findings of fact, it

said in its November 18, 2010 entry that it was “imperative to issue this order

without findings of many facts which would further delay implementing what the

court determines is in the minor child’s best interests.” (Doc. No. 260). It

similarly said in its January 10, 2013 entry that it did “not make findings of facts

on all the evidence that may be important to the parties.” (Doc. No. 305). Phil did

not request that the trial court issue complete findings of fact and conclusions of

law under Civ.R. 52 and, therefore, waived his “right to challenge the trial court’s

lack of an explicit finding concerning an issue.” Yannitell v. Oaks, 4th Dist.

Washington No. 07CA63, 2008-Ohio-6271, ¶ 32-33 (citations omitted). Nor does

Phil suggest that the trial court failed to consider the factors it was required to

consider under R.C. 3109.051(D).

       {¶77} The record reflects that the trial court considered the R.C.

3109.051(D) factors. The trial court listed the factors in its November 18, 2010

entry, and it said it considered them. (Doc. No. 260). Between the November 18,

2010 and January 10, 2013 entries, it is clear that the trial court considered, among


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Case No. 3-13-05


other things: Sarah’s relationship with her parents; Lisa’s, Phil’s, and Sarah’s

schedules; Sarah’s age, wishes, concerns, health, safety, and welfare; the inability

of the parties to cooperate in the administration of parenting time; Lisa’s repeated

denial of Phil’s court-ordered parenting time; and, the reports, recommendations,

and testimony of GAL Cockley and GAL Stone. (See Doc. Nos. 260, 305). See

R.C. 3109.051(D)(1), (3), (4), (6), (7), (10), (13), (16). The trial court satisfied its

obligation to consider the R.C. 3109.051(D) factors. See Ross v. Ross, 9th Dist.

Summit No. 26106, 2012-Ohio-2175, ¶ 8 (concluding that “explicit reference to

R.C. 3109.051’s factors [is] unnecessary if ‘it is clear from the record the court

considered the factors’”), quoting Bonner v. Deselm-Bonner, 5th Dist. Guernsey

No. 10CA000033, 2011-Ohio-2348, ¶ 39.

       {¶78} Phil takes issue with the trial court’s attempt to achieve

“reunification” of Phil and his minor children. Although Phil cites no statute or

case law in support of his argument that the trial court should not have pursued a

goal of “reunification,” he does say that he never disputed the trial court’s March

2, 2007 parenting-time schedule—just Lisa’s failure to honor it. Phil overlooks,

however, that Lisa filed motions for modification of parenting time, and before she

did, the trial court concluded that the parties were “not in agreement regarding

allocation of parental rights or parenting time * * *.” (See Doc. Nos. 172, 183,

231). Under those circumstances, it is not beyond a trial court’s discretion to issue


                                         -31-
Case No. 3-13-05


temporary orders in an attempt to achieve reunification before issuing a final

parenting-time schedule, especially in a case such as this one involving strained

parent-child relationships. See, e.g., Moline v. Moline, 11th Dist. Ashtabula No.

2009-A-0013, 2010-Ohio-1799, ¶ 81 (affirming the trial court’s judgment granting

the father’s motion for modification of parenting time and ordering the minor child

to undergo reunification with her father).      The trial court did not abuse its

discretion by attempting to achieve reunification in a series of temporary

parenting-time orders before issuing a final parenting-time schedule.

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

discretion in making its November 18, 2010 entry its final order concerning

parenting time.     The trial court was presented with a complicated case,

exacerbated by the parties’ relentless litigiousness. This case is a classic example

of the trial court being “in the best position to observe the witnesses, weigh

evidence, and evaluate testimony.”      Walton, 2011-Ohio-2847, at ¶ 20, citing

Clark, 2007-Ohio-5771, at ¶ 23. As a reviewing court, we cannot reverse a

decision simply because we hold an opinion different than the trial court. Id.,

citing Clark at ¶ 23. The trial court did not abuse its discretion in granting Lisa’s

motion for modification of parenting time and setting the final parenting-time

schedule.




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       {¶80} We next address Phil’s arguments that the trial court should have

adjudicated his contempt motions before adjudicating Lisa’s motions for

modification of parenting time and that the trial court erred by delaying its

adjudication of his contempt motions. “It is well-established that the control of the

docket and consideration of motions by the trial court rests within the sound

discretion of the court.” Catudal v. Catudal, 10th Dist. Franklin Nos. 12AP-951,

12AP-991, 13AP-79, and 13AP-94, 2013-Ohio-2748, ¶ 26, citing Stewart v.

Cleveland Clinic Found., 136 Ohio App.3d 244, 254 (8th Dist.1999). Considering

Phil’s contempt motions and Lisa’s motion for modification of parenting time

concurrently was not an abuse of discretion.       See id.   See also Anderson v.

Anderson, 12th Dist. Warren No. CA2009-03-033, 2009-Ohio-5636, ¶ 1, 4, 5

(affirming the trial court’s judgment, which disposed of, among other motions, a

contempt motion and a motion for modification of parenting time, filed in that

order). Nor was the trial court’s delay in resolving Phil’s contempt motions an

abuse of discretion. See Catudal at ¶ 26. Phil cites no authority in support of his

arguments.

       {¶81} For the reasons above, Phil’s first, second, third, and fourth

assignments of error are overruled.

                           Assignment of Error No. V

       The trial court erred to to [sic] the prejudice of defendant-
       appellant by failing to award fees & [sic] expenses generated by

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Case No. 3-13-05


        the attorney retained by defendant-appellant and as directed by
        ORC 3105.73(B) and ORC 3409.051(K).

                           Assignment of Error No. VI

        The trial court erred to to [sic] the prejudice of defendant-
        appellant by failing to award all guardian ad litem fees and
        expenses to defendant-appellant and as directed by ORC
        3105.73(B) and ORC 3409.051(K).

                          Assignment of Error No. VII

        The trial court erred to to [sic] the prejudice of defendant-
        appellant by failing to award all court costs to defendant-
        appellant and as directed by 3105.73(B) and by ORC
        3409.051(K).

                          Assignment of Error No. VIII

        The trial court erred to to [sic] the prejudice of defendant-
        appellant by failing to award to defendant-appellant all attorney
        fees and court costs incurred by defendant-appellant pertaining
        to plaintiff-appellee’s bankruptcy proceeding as directed by
        ORC 3105.73(B) and ORC 3409.051(K).

        {¶82} In Phil’s fifth, sixth, seventh, and eighth assignments of error, he

argues that R.C. 3105.73(B) and 3409.051(K) required the trial court to award him

all of his contempt-related attorney’s fees, court costs, and GAL fees, as well as

attorney’s fees and court costs that he incurred in Lisa’s bankruptcy proceeding

preserving an award of attorney’s fees issued by the trial court.

        {¶83} Relevant to these assignments of error are the following motions.

Beginning on June 29, 2009, Phil filed a total of ten contempt motions against

Lisa.   (Doc. Nos. 166, 178, 202, 227, 245, 272, 278, 287, 292, 298).         Phil

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Case No. 3-13-05


withdrew his fifth contempt motion (Doc. No. 245), which he filed on September

22, 2010. (Sept. 28, 2012 Tr. at 42-43). (See also Doc. No. 305). Phil also filed a

“request/motion for court to rule on assessment of attorney fees; court costs; and

GAL fees pertaining to the contempt finding against plaintiff” and a “motion for

attorney fees.” (Doc. Nos. 219, 271).

       {¶84} As a threshold matter, we lack jurisdiction to consider Phil’s

arguments concerning the trial court’s judgments on his first four contempt

motions (Doc. Nos. 166, 178, 202, 227) because he has not timely appealed the

trial court’s orders concerning those motions.

       {¶85} On December 3, 2009, pursuant to the agreement of the parties, the

trial court filed a judgment entry finding Lisa in contempt as alleged in Phil’s first

two motions for contempt (Doc. Nos. 166, 178). (Doc. No. 198). The trial court

imposed a 10-day jail sentence on Lisa and suspended that sentence on condition

that Lisa purge her contempt by, among other things, attending counseling and

abiding by the December 3, 2009 temporary order agreed to by the parties. (Id.).

After initially reserving a decision on Phil’s requested additional relief—which

included make-up parenting time, court costs, GAL fees, and attorney’s fees—the

trial court ruled on these requests in a July 26, 2010 journal entry. (Id.).

       {¶86} On January 13, 2010, the trial court found that Lisa “failed to comply

with one of the conditions of the purge order” and ordered Lisa jailed for one day,


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Case No. 3-13-05


with the remaining nine days of the original 10-day jail sentence suspended with

Lisa “to continue to be required to comply with all conditions of the purge order.”

(Doc. No. 212). On July 26, 2010, the trial court filed the entry ordering Lisa to

pay 12 monthly installments totaling $2,500 toward Phil’s attorney’s fees, court

costs related to Phil’s June 29, 2009 contempt motion and May 13, 2010

“request/motion for court to rule on assessment of attorney fees; court costs; and

GAL fees pertaining to the contempt finding against plaintiff,” and GAL fees “as

of the date of trial” of $1,117.50. (Doc. No. 237). The trial court described its

July 26, 2010 “journal entry” as “a final order.” (Id.).

       {¶87} On January 27, 2011, the trial court filed a judgment entry finding

Lisa in contempt because she failed to provide Phil with her email address and a

schedule of their children’s activities and because she scheduled orthodontia

appointments other than those authorized by the trial court, as alleged in Phil’s

third and fourth motions for contempt (Doc. Nos. 202, 227), respectively. (Doc.

No. 268). The trial court awarded Phil $500 in attorney’s fees and ordered Lisa to

“pay the costs of these proceedings within sixty days,” but it did not sentence Lisa

to jail because imposing a jail sentence with a purge provision would be “fruitless”

under the circumstances. (Id.).

       {¶88} Under Ohio law, contempt of court consists of two elements. Frey v.

Frey, 197 Ohio App.3d 273, 2011-Ohio-6012, ¶ 17 (3d Dist.), citing Cooper v.


                                         -36-
Case No. 3-13-05


Cooper, 14 Ohio App.3d 327, 328-329 (8th Dist.1984). “The first is a finding of

contempt of court and the second is the imposition of a penalty or sanction, such

as a jail sentence or fine.” Id., quoting Cooper at 328-329 (internal quotation

marks omitted). The imposition of a sanction, albeit suspended to afford the

contemnor an opportunity to purge himself of the contempt, satisfies the second

element of contempt. Id., citing Abernethy v. Abernethy, 8th Dist. Cuyahoga No.

92708, 2010-Ohio-435, ¶ 37 (“The addition of the sentence, albeit, suspended,

supplies the second element rendering the order final.”) (additional citations

omitted). See also Farrell v. Farrell, 5th Dist. Licking No. 2008-CA-0080, 2009-

Ohio-1341, ¶ 16, citing Peterson v. Peterson, 5th Dist. Muskingum No. 2003-

0049, 2004-Ohio-4714, ¶ 8 (“We find said imposition of the sentence for contempt

(as opposed to the execution of sentence), albeit with purge conditions, constituted

a final appealable order, from which appellant did not timely appeal.”).

       {¶89} “Until both a finding of contempt is made and a penalty [is] imposed

by the court, there is not a final order.” Frey at ¶ 17, quoting Cooper at 328-329

(internal quotation marks omitted). However, once a trial court finds a party in

contempt and imposes a sanction, its order becomes final and appealable, and a

party waives his right to challenge the order if he does not timely appeal it.

McCree v. McCree, 7th Dist. Mahoning No. 01 CA 228, 2003-Ohio-1600, ¶ 21.




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See also R.C. 2705.09 (“The judgment and orders of a court or officer made in

cases of contempt may be reviewed on appeal.”).

       {¶90} Here, the trial court’s July 26, 2010 entry concerning Phil’s first and

second contempt motions was a final, appealable order because it imposed

additional sanctions on which the trial court had reserved judgment. (See Doc.

Nos. 198, 237). The trial court had already found Lisa in contempt as to Phil’s

first and second contempt motions and already imposed a suspended jail sentence.

(Doc. No. 198). In fact, Phil appealed the July 26, 2010 entry to this Court but

later dismissed the appeal. (Doc. Nos. 239, 274). Similarly, the trial court’s

January 27, 2011 judgment entry was a final, appealable order because the trial

court found Lisa in contempt as to Phil’s third and fourth contempt motions and

imposed sanctions. (See Doc. No. 268). Because Phil has not timely appealed the

July 26, 2010 and January 27, 2011 entries, he cannot now assign errors related to

the trial court’s disposition of his first, second, third, and fourth contempt motions.

See McCree at ¶ 21.

       {¶91} We turn next to Phil’s arguments concerning the trial court’s

disposition of his sixth, seventh, eighth, ninth, and tenth contempt motions (Doc.

Nos. 272, 278, 287, 292, 298), which the trial court decided in its January 10, 2013

judgment entry on appeal before this Court.




                                         -38-
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       {¶92} “An award of attorney’s fees in a domestic relations action is

committed to the sound discretion of the trial court.” Flowers v. Flowers, 10th

Dist. Franklin No. 10AP-1176, 2011-Ohio-5972, ¶ 21, citing Stuart v. Stuart, 144

Ohio St. 289 (1944) (additional citation omitted). “This court will not reverse an

award of attorney fees absent a finding that the trial court abused its discretion.”

Id., citing Stuart. An abuse of discretion “implies the trial court’s attitude is

unreasonable, arbitrary or unconscionable.” Id. at ¶ 11, citing Blakemore, 5 Ohio

St.3d at 219.

       {¶93} Phil argues that he was entitled to attorney’s fees, court costs, and

GAL fees under two statutes. One is R.C. 3105.73(B), which allows a trial court

to award attorney’s fees and litigation expenses in post-divorce proceedings:

       In any post-decree motion or proceeding that arises out of an action

       for divorce, dissolution, legal separation, or annulment of marriage

       or an appeal of that motion or proceeding, the court may award all or

       part of reasonable attorney’s fees and litigation expenses to either

       party if the court finds the award equitable. In determining whether

       an award is equitable, the court may consider the parties’ income,

       the conduct of the parties, and any other relevant factors the court

       deems appropriate, but it may not consider the parties’ assets.




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See also Adams v. Adams, 3d Dist. Union No. 14-13-01, 2013-Ohio-2947, ¶ 23;

Erwin v. Erwin, 3d Dist. Marion No. 9-08-15, 2009-Ohio-407, ¶ 38.              “R.C.

3105.73(B) gives a trial court broad discretion to award attorney’s fees * * *.”

Bajzer v. Bajzer, 9th Dist. Summit No. 25635, 2012-Ohio-252, ¶ 16.

       {¶94} The other statute is R.C. 3109.051(K). Unlike R.C. 3105.73(B), R.C.

3109.051(K) requires that a trial court award contempt-related courts costs and

reasonable attorney’s fees if it finds a party in contempt:

       If any person is found in contempt of court for failing to comply

       with or interfering with any order or decree granting parenting time

       rights issued pursuant to this section or section 3109.12 of the

       Revised Code or companionship or visitation rights issued pursuant

       to this section, section 3109.11 or 3109.12 of the Revised Code, or

       any other provision of the Revised Code, the court that makes the

       finding, in addition to any other penalty or remedy imposed, shall

       assess all court costs arising out of the contempt proceeding against

       the person and require the person to pay any reasonable attorney’s

       fees of any adverse party, as determined by the court, that arose in

       relation to the act of contempt, and may award reasonable

       compensatory parenting time or visitation to the person whose right

       of parenting time or visitation was affected by the failure or


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       interference if such compensatory parenting time or visitation is in

       the best interest of the child. Any compensatory parenting time or

       visitation awarded under this division shall be included in an order

       issued by the court and, to the extent possible, shall be governed by

       the same terms and conditions as was the parenting time or visitation

       that was affected by the failure or interference.

See also Hall v. Nazario, 9th Dist. Lorain No. 07CA009131, 2007-Ohio-6401, ¶

15-16. In other words, if the trial court finds a party in contempt, “[t]he award is

mandatory, and the statute does not require any inquiry into the paying party’s

ability to pay or the opposing party’s ability to litigate his rights and protect his

interests.” Robinson v. Robinson, 8th Dist. Cuyahoga No. 85980, 2005-Ohio-

6240, ¶ 14, citing Mann v. Mendez, 9th Dist. Lorain No. 04CA008562, 2005-

Ohio-3114, ¶ 21.

       {¶95} As for our review of an amount of attorney’s fees awarded by a trial

court, “[w]e review the trial court’s valuation of the attorney fees for an abuse of

discretion.” Hall at ¶ 17, citing Mann at ¶ 22 and Robinson at ¶ 16. “‘Thus, a

court’s attorney fees award will not be reversed unless it is deemed arbitrary,

unreasonable, or unconscionable.’”       Id., quoting Mann at ¶ 22.       “‘What is

reasonable,’ for purposes of calculating attorney fees, ‘is a question of fact[, and

t]he trial court must have evidence before it probative of that issue in order to


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make the finding.’” (Emphasis sic.) Kimball v. Austin, 9th Dist. Lorain No.

01CA007760, 2001 WL 866260, *2 (Aug. 1, 2001), quoting Madden v. Madden,

2d Dist. Montgomery No. 15576, 1996 WL 339941, *4 (June 14, 1996).

       {¶96} However, “‘where the amount of the attorney’s time and work is

evident to the trier of fact, an award of attorney fees, even in the absence of

specific evidence to support the amount, is not an abuse of discretion.’” Woloch v.

Foster, 98 Ohio App.3d 806, 813 (2d Dist.1994), quoting Kreger v. Kreger, 9th

Dist. Lorain No. 91CA005073, 1991 WL 262883 *2 (Dec. 11, 1991). See also

Long v. Long, 10th Dist. Franklin No. 11AP-510, 2012-Ohio-6254, ¶ 20 (“The

trial court * * * is not required to hear [expert] testimony and may rely on its own

knowledge and experience to determine the reasonableness of the amount

claimed.”); Beadle v. Beadle, 4th Dist. Scioto No. 03CA2911, 2004-Ohio-1400, ¶

5, 19 (citing Woloch and affirming the trial court’s “nominal” attorney’s fee award

of $500 under R.C. 3109.051(K) following the trial court’s contempt finding,

notwithstanding that the movant for contempt did not present evidence of his

attorney’s fees).    In addition, parties may stipulate to the accuracy and

reasonableness of attorney’s fees. Hall at ¶ 17, citing Iwanek v. Iwanek, 9th Dist.

Lorain No. 90CA004884, 1991 WL 19307, *3 (Feb. 13, 1991).

       {¶97} Finally, concerning GAL fees, “[t]he trial court has discretion over

the amount of GAL fees, as well as the allocation to either or both of the parties.”


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Flowers, 2011-Ohio-5972, at ¶ 28, citing Karales v. Karales, 10th Dist. Franklin

No. 05AP-856, 2006-Ohio-2963, ¶ 21. See also Holeski v. Holeski, 11th Dist.

Portage No. 2009-P-0007, 2009-Ohio-6036, ¶ 28 (“A trial court has broad

authority to tax [GAL] fees as costs, including the amount of the fees and the

allocation to either or both of the parties.” (citations and internal quotation marks

omitted)). Therefore, we review “a ruling of the trial court relative to an award of

[GAL] fees under an abuse of discretion standard.” Holeski at ¶ 28 (citation and

internal quotation marks omitted). “‘Fees may be allocated based on the parties’

litigation success and the parties’ economic status.’”      Id., quoting Padgett v.

Padgett, 10th Dist. Franklin No. 08AP-269, 2008-Ohio-6815, ¶ 36. “Moreover, it

is proper to allocate GAL fees based upon which party caused the work of the

GAL.” Flowers at ¶ 28, citing Karales at ¶ 21.

       {¶98} We will first address Phil’s fifth and seventh assignments of error, in

which he argues that the trial court should have awarded him his attorney’s fees

and court costs, as he requested in his contempt motions.

       {¶99} The trial court found Lisa in contempt as to each of Phil’s sixth,

seventh, eighth, ninth, and tenth contempt motions because she “fail[ed] to comply

with the prior orders of the court regarding parenting time.” (Doc. No. 305).

After finding Lisa in contempt, the trial court applied R.C. 2705.02 and 3105.73

and awarded Phil court costs and $3,000 in attorney’s fees for his sixth and tenth


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motions only, explaining that the trial court based its decision on equitable

considerations and the incomes and conduct of the parties:

            It is equitable to award [Phil] attorney fees given [Lisa]’s

      continuing course of conduct toward [Phil]. [Phil] is entitled to an

      award of reasonable attorney fees in pursuing motions to show cause

      against [Lisa]. However, the motions were filed beginning August

      of 2011 to July of 2012, and could have been consolidated into fewer

      motions (the Court cannot determine the reasoning behind repetitive

      motions to show cause except to punish [Lisa] for her contemptuous

      acts). Therefore, the court considered that the amount requested for

      attorney fees is not reasonable although understandable given

      [Lisa]’s conduct and attitude toward court orders.

            Based on the incomes of the parties, the conduct of each of the

      parties, [Phil] is entitled to a reasonable fee of $3,000.00 for the

      sixth and tenth motions for contempt, and the payment of court costs

      for the sixth and tenth motions for contempt.

(Doc. No. 305).

      {¶100} The trial court erred as a matter of law and therefore abused its

discretion when it found Lisa in contempt on Phil’s seventh, eighth, and ninth

motions but declined to award Phil court costs and reasonable attorney’s fees for


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those motions.     The trial court granted Phil parenting-time rights under R.C.

3109.051(K), and it found Lisa in contempt on each of Phil’s sixth through tenth

contempt motions for failing to honor those parenting-time rights. (See Doc. Nos.

260, 305). R.C. 3109.051(K) required the trial court to award Phil court costs and

reasonable attorney’s fees arising out of the contempt as alleged in each motion

when it concluded Lisa was in contempt as alleged in the motions. See Kimball,

2001 WL 866260, at *2 (“Having found [appellee-mother] in contempt of a

visitation order, the trial court was required by R.C. 3109.051(K) to order her to

pay the court costs involved in the contempt proceedings and to pay any

reasonable attorney fees [appellant-father] incurred in association with the

contempt.”), citing R.C. 3109.051(K).

      {¶101} Furthermore, the trial court improperly relied on “equitable”

considerations, including the parties’ conduct and incomes, which are

considerations found in R.C. 3105.73. (Doc. No. 305). See Robinson, 2005-Ohio-

6240, at ¶ 14, citing Mann, 2005-Ohio-3114, at ¶ 21. Because R.C. 3109.051(K)

specifically addresses when to award court costs and reasonable attorney’s fees in

contempt proceedings involving a parenting-time order and requires the

imposition of court costs and reasonable attorney’s fees if the trial court finds a

party in contempt, it controls over R.C. 3105.73, the more general provision. See

Beadle, 2004-Ohio-1400, at ¶ 20 (applying R.C. 3109.051(K) rather than “the


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more general provisions of R.C. 3105.18(H),” which afforded the trial court

discretion to award attorney’s fees in divorce or legal separation proceedings),

citing McAuliffe v. W. States Import Co., Inc., 72 Ohio St.3d 534, 540 (1995), fn. 5

and R.C. 1.51.9 As we explained above, R.C. 3105.73 affords the trial court

discretion in deciding whether to award costs and fees in post-divorce

proceedings. It does not mention contempt. See R.C. 3105.73.

         {¶102} For these reasons, we sustain Phil’s fifth and seventh assignments

of error insofar as the trial court failed to award court costs and reasonable

attorney’s fees under R.C. 3109.051(K) after finding Lisa in contempt on Phil’s

seventh, eighth, and ninth motions.

         {¶103} We next address Phil’s argument in his fifth assignment of error

that the trial court should have awarded him attorney’s fees exceeding $1,500 per

motion for his sixth and tenth contempt motions. The record reflects that Phil

requested attorney’s fees of $1,500 for each of his sixth through tenth contempt

motions. (See Doc. No. 305). (See also Sept. 28, 2012 Tr. at 44-45). However,

9
  Though it may appear to be so, our conclusion that, notwithstanding R.C. 3105.73(B), R.C. 3109.051(K)
requires a trial court to impose court costs and reasonable attorney’s fees once it finds a party in contempt
is not inconsistent with our decision in Erwin. In Erwin, the trial court found the appellant-mother in
contempt for violating the appellee-paternal grandmother’s visitation rights and awarded attorney’s fees
under R.C. 3105.73(B). 2009-Ohio-407, at ¶ 10. On appeal, the appellant-mother argued that the trial
court’s decision to award attorney’s fees under R.C. 3105.73 was contrary to law and that attorney’s fees
could only have been awarded under R.C. 3109.051(K). Id. at ¶ 37. The basis for the appellant-mother’s
argument was apparently that an award of only contempt-related fees authorized R.C. 3109.051(K) would
have been less than the more encompassing fee award authorized by R.C. 3105.73(B). In affirming the trial
court’s decision to award fees under R.C. 3105.73(B), we noted that we found no authority mandating that
attorney’s fees in domestic contempt proceeding be awarded under R.C. 3109.051(K), as opposed to R.C.
3105.73(B). Id. at ¶ 42. This case is different than Erwin because here, the trial court neglected to award
any court costs and attorney’s fees for three of the motions on which it found Lisa in contempt.

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Phil appears to argue in his brief that he clarified at the September 28, 2012

hearing that the $1,500 amount per contempt did not cover the parenting-time

aspects of those contempt motions. Even assuming he “clarified” at the hearing

that he was requesting more than $1,500 per contempt, which is unclear, Phil has

not suggested how the trial court abused its discretion when it awarded $1,500 in

attorney’s fees per motion for Phil’s sixth and tenth contempt motions.             We

overrule Phil’s fifth assignment of error to the extent Phil argues in it that the trial

court should have awarded additional attorney’s fees for his sixth and tenth

contempt motions.

       {¶104} We next address Phil’s sixth assignment of error, in which he

argues that the trial court erred by not awarding him GAL fees and expenses under

R.C. 3105.73(B) and 3109.051(K). Specifically, Phil argues that it was Lisa’s

contemptuous conduct that resulted in the trial court’s decision to appoint a GAL.

He also argues, without citing authority, that “[t]he expense of a GAL in this case

is a court cost” for purposes of R.C. 3109.051(K). (Appellant’s Brief at 17).

       {¶105} We find no case, and Phil has not cited one, standing for the

proposition that GAL fees are “court costs” under R.C. 3109.051(K); however, it

appears that courts sometimes treat GAL fees as court costs in other contexts. See,

e.g., Myers v. Myers, 170 Ohio App.3d 436, 2007-Ohio-66, ¶ 28 (5th Dist.)

(quoting the trial court’s local rules, which provide that GAL fees are treated as


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court costs if an indigent party requests a GAL). Nevertheless, we decline to

categorically place GAL fees within the meaning of “court costs” under R.C.

3109.051(K), as doing so would remove a trial court’s discretion in an area that

has historically been one of discretion for a trial court. Therefore, the trial court

was not required under R.C. 3109.051(K) to award Phil GAL fees as “court costs”

when it found Lisa in contempt.

       {¶106} Instead, as it did in its decision to appoint a GAL, the trial court had

discretion over the amount of GAL fees and their allocation. Flowers, 2011-Ohio-

5972, at ¶ 28. In its July 26, 2010 entry, the trial court concluded that GAL fees

“are costs of ligation as defined by R.C. 3105.73 * * *.” (Doc. No. 237). We

agree with the trial court to the extent it concluded that it had discretion to award

GAL fees as “litigation expenses” under R.C. 3105.73(B).

       {¶107} As we noted above, Phil or his counsel initially agreed to the

appointment of a GAL, and the trial court did not abuse its discretion in appointing

one. In awarding relief to Phil on his first two contempt motions, the trial court

ordered Lisa to pay the GAL fees necessitated by her contempt. (Doc. No. 237).

In an interim journal entry of the same day, the trial court ordered Phil and Lisa to

split GAL fees for services rendered after July 22, 2010. (Doc. No. 236). On

September 28, 2012, Phil and GAL Stone reached an agreement under which Phil

would pay GAL Stone’s deposit that the trial court had previously ordered Phil to


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pay. (Doc. No. 305). While it does appear, as Phil points out, that the trial court

mistakenly believed Phil filed the July 12, 2010 motion for modification of

parenting time, Phil’s argument that the trial court erred by relying on that

mistaken belief when allocating GAL fees is undermined by his agreement to pay

GAL Stone’s deposit as reflected in the trial court’s January 10, 2013 entry.10 (See

Doc. No. 305).

         {¶108} We understand Phil’s plight that Lisa’s repeated contemptuous

conduct exacerbated the GALs’ involvement.                          However, this Court cannot

substitute its judgment for that of the trial court, and absent an abuse of discretion,

we cannot reverse the trial court’s allocation of GAL fees. We cannot conclude

that the trial court’s decision concerning the allocation of GAL fees was

unreasonable, arbitrary, or unconscionable. For these reasons, we overrule Phil’s

sixth assignment of error.

         {¶109} In his eighth and final assignment of error, Phil argues that the trial

court erred by not awarding him, under R.C. 3105.73(B) and 3109.051(K), the

attorney’s fees and court costs that he incurred in Lisa’s bankruptcy proceeding.

He argues that in that bankruptcy proceeding, he was forced to preserve the

attorney’s fees award that the trial court previously awarded him in this case and


10
   In its January 10, 2013 entry, the trial court ordered “that the defendant’s motion to modify parenting
time on July 12, 2010, is dismissed at defendant’s costs.” (Doc. No. 305). Phil does not assign as error the
trial court’s decision to assess him costs for that motion, even though it was Lisa who filed it. Therefore,
we do not address that issue.

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to defend against Lisa’s meritless arguments that the award was dischargeable in

bankruptcy.

       {¶110} The trial court did not abuse its discretion by not awarding Phil his

bankruptcy-related attorney’s fees and court costs. Neither R.C. 3105.73(B) nor

R.C. 3109.051(K) allows for such an award, and Phil cites no authority suggesting

they do. By its plain language, R.C. 3105.73(B) governs awarding fees in post-

divorce proceedings, not bankruptcy. Similarly, it is too far a leap to say that,

under R.C. 3109.051(K), Phil’s bankruptcy-related court costs “ar[ose] out of the

contempt proceeding” and his bankruptcy-related attorney’s fees “arose in relation

to the act of contempt.” For these reasons, we overrule Phil’s eighth assignment

of error.

       {¶111} In summary, we overrule Phil’s first, second, third, and fourth

assignments of error, all of which concern parenting time. We overrule Phil’s

sixth assignment of error concerning the trial court’s allocation of GAL fees. We

overrule Phil’s eighth assignment of error concerning court costs and attorney’s

fees that Phil incurred in Lisa’s bankruptcy proceeding. We overrule in part and

sustain in part Phil’s fifth assignment of error: we overrule his fifth assignment of

error to the extent he argues in it the trial court should have awarded additional

attorney’s fees for his sixth and tenth contempt motions; we sustain his fifth

assignment of error insofar as the trial court failed to award under R.C.


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3109.051(K) reasonable attorney’s fees for his seventh, eighth, and ninth motions

for contempt after finding Lisa in contempt on those motions. We sustain Phil’s

seventh assignment of error insofar as the trial court failed to award court costs

under R.C. 3109.051(K) after finding Lisa in contempt on Phil’s seventh, eighth,

and ninth motions for contempt. On remand, the trial court must award court costs

and reasonable attorney’s fees on Phil’s seventh, eighth, and ninth motions for

contempt.

      {¶112} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued as to the first, second, third, fourth, sixth, and

eighth assignments of error and part of the fifth assignment of error, we affirm the

judgment of the trial court. However, we sustain the seventh assignment of error

and part of the fifth assignment of error as stated above and remand for further

proceedings consistent with this opinion.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part and
                                                               Cause Remanded

WILLAMOWSKI and ROGERS, J.J., concur.
/jlr




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