[Cite as Sivertsen-Kuhn v. Kuhn, 2019-Ohio-3525.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     GREENE COUNTY

 SHERYL M. SIVERTSEN-KUHN                           :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2019-CA-17
                                                    :
 v.                                                 :   Trial Court Case No. 2015-DR-215
                                                    :
 KEITH A. KUHN                                      :   (Domestic Relations Appeal)
                                                    :
         Defendant-Appellant                        :
                                                    :

                                             ...........

                                             OPINION

                           Rendered on the 30th day of August, 2019.

                                             ...........

JAMES R. KIRKLAND, Atty. Reg. No. 0009731, 10532 Success Lane, Dayton, Ohio
45409
      Attorney for Plaintiff-Appellee

KEITH A. KUHN, 7170 Ashview Lane, Liberty Township, Ohio 45011
     Defendant-Appellant, Pro Se

                                             .............




WELBAUM, P.J.
                                                                                           -2-




         {¶ 1} In this case, Defendant-Appellant, Keith Kuhn, appeals pro se from a

judgment and decree of divorce entered in an action brought by Plaintiff-Appellee, Sheryl

Sivertsen-Kuhn.1 Keith has not presented assignments of error, but from the “issues

presented,” Keith appears to contend that the trial court erred in the following respects:

(1) by awarding custody of the parties’ minor child to Sheryl, rather than granting shared

parenting; (2) by awarding Sheryl reimbursement for medical bills; and (3) by awarding

Sheryl reimbursement for attorney fees in lieu of spousal support.

         {¶ 2} For the reasons discussed below, the alleged errors have no merit.

Accordingly, the judgment of the trial court will be affirmed.



                            I. Facts and Course of Proceedings

         {¶ 3} This case began as a complaint for legal separation, which Sheryl filed in

August 2015. The parties were married in 1994, and at the time of the separation, had

two minor children, a daughter and a son.       In September 2015, Keith filed an answer to

the complaint and a counterclaim for divorce. In October 2015, the trial court filed a

temporary order making Sheryl the residential parent and granting Keith parenting time

per the court’s standard order. Keith was also ordered to pay temporary child support of

$1,495.21 per month, plus processing. In addition, spousal support was to be decided

at a later hearing. Ultimately, in August 2016, the court granted Sheryl’s motion to

convert the legal separation action into a divorce action.

         {¶ 4} Despite the relative lack of property to be divided (the parties had no marital


1   For our convenience, we will refer to the parties by their first names.
                                                                                        -3-


real estate and fairly insubstantial savings and retirement accounts), the final divorce

decree was not filed until March 22, 2019. The delay was caused by squabbling over

parenting time and medical bills, contempt motions filed by Keith, and the fact that Keith

changed counsel several times and ultimately chose to represent himself.

       {¶ 5} After completing the hearings on the case, the court filed a final decree of

divorce designating Sheryl as the residential parent and legal custodian of the parties’

son. Their daughter had been emancipated on August 31, 2018. Keith was designated

as a non-residential parent and was given parenting time in accordance with the court’s

standard order during the school year.      The court further concluded that awarding

attorney fees to Sheryl of $25,000 in lieu of spousal support would be fair and equitable.

In addition, the court awarded Sheryl one-half of the $23,308.87 in medical expenses she

had paid for herself and the minor children from the date of the parties’ separation to the

last day of trial on June 18, 2018, and one-half of the outstanding medical expenses of

$1,871.38. The court held that the medical bills were marital in nature and that the

parties should share the expenses equally.       Keith timely appealed, pro se, from the

judgment of the trial court.



                                       II. Custody Award

       {¶ 6} As we interpret the First Assignment of Error, Keith contends that:

              The Trial Court Erred in Awarding Custody to Appellee, Rather than

       Granting Shared Parenting.

       {¶ 7} Under this assignment of error, Keith claims that the trial court erred in

awarding custody of their minor son, to Sheryl because of concerns the guardian ad litem
                                                                                           -4-


(“GAL”) raised in his report about Sheryl’s mental stability and behavior. Keith also

contends that Sheryl engaged in property destruction and theft, and he focuses on alleged

statements of a magistrate that shared parenting would be expected. Further, Keith

maintains that he and Sheryl had actively engaged in shared parenting while the case

was pending and were able to negotiate a satisfactory resolution of a contempt motion.

       {¶ 8} After reviewing the entire record, including the transcripts of all hearings, our

first observation is that the magistrate did not say that shared parenting would be

expected. The magistrate simply discussed the pending issues, which included multiple

contempt motions that Keith had filed, as well Keith’s motion for a reduction in temporary

child support.   See February 13, 2019 Hearing Transcript, p. 4. These matters were

resolved by the parties’ agreement. Id. at p. 5.

       {¶ 9} R.C. 3109.04(A) requires trial courts to “allocate the parental rights and

responsibilities for the care of the minor children of the marriage.” The court has two

choices in this regard – either ordering shared parenting or giving residential and legal

custody to one parent. If neither parent files a shared parenting plan, or if (as here), at

least one parent has filed both a pleading or motion and a shared parenting plan under

R.C. 3109.04(G), but the plan is not in the children’s best interest, the court may designate

one parent as residential and legal custodian and allocate the primary care to that parent.

R.C. 3109.04(A)(1).

       {¶ 10} Alternatively, if at least one parent files a pleading or motion and a shared

parenting plan, and if the plan is in the children’s best interest and the court approves the

plan in accordance with R.C. 3109.04(D)(1), the court may then allocate parental care of

the children to both parents and issue a shared parenting order that requires the parents
                                                                                            -5-


to share all or some of the children’s legal and physical care. R.C. 3109.04(A)(2).

       {¶ 11} R.C. 3109.04(D)(1)(a) provides that “[u]pon the filing of a pleading or motion

by either parent or both parents, in accordance with division (G) of this section, requesting

shared parenting and the filing of a shared parenting plan in accordance with that division,

the court shall comply with division (D)(1)(a)(i), (ii), or (iii) of this section, whichever is

applicable.” In the case before us, Keith included a request for shared parenting in his

counterclaim for divorce. See Doc. #64, filed on January 6, 2017.2 Keith also filed a

motion for shared parenting and a proposed shared parenting plan on January 11, 2017.

See Doc. #66. Sheryl did not ask for shared parenting in her divorce complaint, nor did

she ever file a shared parenting plan.       In such situations, R.C. 3109.04(D)(1)(a)(iii)

applies.

       {¶ 12} Keith’s plan for shared parenting, however, was not timely filed. According

to R.C. 3109.04(G), “[t]he plan for shared parenting shall be filed with the petition for

dissolution of marriage, if the question of parental rights and responsibilities for the care

of the children arises out of an action for dissolution of marriage, or, in other cases, at a

time at least thirty days prior to the hearing on the issue of the parental rights and

responsibilities for the care of the children.” As noted, Keith’s petition was filed on

January 11, just two days before the January 13, 2017 final divorce hearing, and,

therefore, was untimely.       We have held that this requirement is “directory, not

mandatory,” and that a trial court has “discretion to relieve a party of the statutory deadline

and grant” the request to untimely file a shared parenting plan. Harris v. Harris, 105 Ohio


2 As noted, the legal separation was converted to a divorce action in August 2016. In
December 2016, the trial court gave Keith permission to file an untimely answer and
counterclaim. See Doc. #62.
                                                                                         -6-


App.3d 671, 674, 664 N.E.2d 1304 (2d Dist.1995).

       {¶ 13} However, in the case before us, the trial court never stated whether it

intended to relieve Keith of the statutory deadline. In the absence of a ruling by the trial

court, we presume that the court denied the untimely motion for shared parenting. E.g.,

Schaeffer v. Nationwide Mut. Ins., 2d Dist. Greene No. 2001 CA 131, 2002-Ohio-4811,

¶ 32 (when trial courts fail to rule on a motion, appellate courts presume the motion was

denied). We also note that Keith did not ask for shared parenting at the divorce hearing;

instead, he asked for sole residential and legal custody. See January 13, 2017 Hearing

Transcript, pp. 77-78.

       {¶ 14} In the case before us, the divorce decree made the following statement

about the allocation of parental rights and responsibilities:

              Based upon the testimony, evidence, and record in the case, the

       Court finds it appropriate to follow the recommendations of the Guardian ad

       Litem (hereinafter GAL). The Court hereby Orders that Plaintiff shall be

       designated the residential parent and legal custodian of the parties' minor

       child[.] * * * Defendant is the non-residential parent.

Doc. # 221, Final Judgment and Decree of Divorce, p. 3. After making this statement,

the trial court made provisions for Keith's parenting time and ordered that Keith would be

responsible for transporting the child to and from Sheryl's residence.

       {¶ 15} By agreeing with the GAL’s recommendations, the trial court concluded that

making Sheryl the residential parent and legal custodian was in the son’s best interest.

Under R.C. 3109.04(F)(1), trial courts are required to consider a set of factors in deciding

a child’s best interest, including the parents’ wishes; the child's wishes, if the court has
                                                                                          -7-


interviewed the child; the child's interaction with parents, siblings, and others who may

significantly affect the child's best interest; adjustment of the child to home, school, and

community; and the mental and physical health of all involved persons. In re D.S., 2d

Dist. Clark No. 2013 CA 51, 2014-Ohio-2444, ¶ 9.

       {¶ 16} We have previously held that, while R.C. 3109.04(F)(1) instructs courts to

“consider” the enumerated factors, “an alleged failure to give the required consideration

will not be found * * * against the manifest weight of the evidence so long as the court's

judgment is supported by some competent, credible evidence.” Feldmiller v. Feldmiller,

2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 32, citing Bunten v. Bunten, 126 Ohio

App.3d 443, 710 N.E.2d 757 (3d Dist.1998). This is based on the fact that if a party does

not request findings of fact and conclusions of law under Civ. R. 52, “the court's judgment

concerning allocation of parental rights and responsibilities ‘may be general for the

prevailing party.’ ” Id., quoting Civ. R. 52. See also Bunten at 447, citing Masitto v.

Masitto, 22 Ohio St.3d 63, 488 N.E.2d 857 (1986) (the trial court does not need “to set

forth its analysis as to each factor in its judgment entry, so long as the judgment entry is

supported by some competent, credible evidence.”).

       {¶ 17} We have also said, concerning the initial allocation of custody under R.C.

3109.04(F)(1), that “while helpful to a reviewing court, there is no requirement that a trial

court expressly and separately address each best-interest factor. * * * Absent evidence

to the contrary, an appellate court presumes that the trial court considered the relevant

statutory factors.” Wise v. Wise, 2d Dist. Montgomery No. 23424, 2010-Ohio-1116, ¶ 5,

citing Quint v. Lomakoski, 167 Ohio App.3d 124, 2006-Ohio-3041, 854 N.E.2d 225, ¶ 12

(2d Dist.), and In re Henthorn, 7th Dist. Belmont No. 00-BA-37, 2001-Ohio-3459, *3 (Nov.
                                                                                            -8-


28, 2001).

       {¶ 18} Here, there is no evidence that the trial court failed to consider the statutory

factors. In particular, the court relied on the findings of the GAL, who stated in his report

that he had reviewed all the statutory factors in R.C. 3109.04(F)(1) in connection with the

facts described in the report.       See Plaintiff’s Ex. X, p.1.      The GAL included a

comprehensive analysis of these factors in the report, and also testified at trial.

       {¶ 19} After reviewing the record, including the transcripts and the GAL’s report,

we conclude that competent, credible evidence supported the trial court’s decision to

award custody to Sheryl.     According to the testimony, Sheryl had been a stay-at-home

mother and primary caretaker of the parties’ children during the marriage. In contrast,

Keith had been involved in his career, at times moving on to the next job while Sheryl and

the children were left behind, with Sheryl alone providing care of the children until school

was out or the move could be completed. At times, this involved a period of months.

       {¶ 20} In his report, which was filed in late March 2016, the GAL discussed all the

statutory factors and then concluded that Sheryl should be named residential and

custodial parent, with Keith receiving standard parenting time. The GAL noted that both

parties had appropriate homes, although Keith’s home was more crowded, with his live-

in companion and her three children. At that home, the parties’ son had to share a

bedroom with two other boys.

       {¶ 21} The GAL also commented that some friction may have been caused by

Keith’s attention to his companion and her children, such that Keith spent little time alone

with his own children. According to the GAL, Keith failed to consider what his actions

did to his children (referring to moving in with a girlfriend and failing to spend quality time
                                                                                         -9-


with the children). In addition, the GAL expressed concern that Sheryl had shared too

much information with the children and was concerned that she might talk negatively

about Keith’s girlfriend and her children.

       {¶ 22} Prior to the January 2017 divorce hearing, the GAL conducted further

investigation. The GAL was aware of a criminal action that Sheryl had been involved in,

and said that while he would prefer parents not have criminal problems, the case did not

bear on safety or anything else involving the children. Furthermore, the GAL stressed

that the minor son was very close to his siblings, who lived with Sheryl, and that the elder

siblings were somewhat estranged from Keith. The GAL also noted that Keith’s girlfriend

was more involved in parenting time than Keith, and stressed that he (the GAL) was not

sure how much Keith really wanted custody.

       {¶ 23} The GAL was aware of concerns expressed about Sheryl’s mental health,

based on her oversharing and tracking of Keith with a GPS. However, the marriage was

a lengthy one, and Sheryl took the divorce very hard.    With respect to the GPS, the GAL

stated that poor behavior in divorce cases is not uncommon. Thus, while the GPS

tracking was more extreme than usual conduct, Sheryl told the GAL that her husband had

moved out, that she did not know where he lived, that he was cohabitating with another

woman who had children, and that she did not know what was going on. In addition, the

children said the same thing to the GAL, i.e., that they were caught off guard that their

father had moved out and no one knew where he was.

       {¶ 24} Notably, the GAL stressed that the majority of things that happened were in

the summer of 2015 and maybe into early 2016. He also said that nothing he heard

during the hearing had changed his opinion that Sheryl should be the residential parent
                                                                                          -10-


and legal custodian. As a final matter, after reviewing the record, we see little indication

that the parties can successfully cooperate in raising their child. The sole instance of

“cooperation” occurred after almost four years, with most of the lengthy delay devoted to

trivial matters that should have been easily resolved if the parties could have cooperated.

       {¶ 25} In view of the above facts, the trial court’s custody decision was supported

by competent credible evidence. Accordingly, the First Assignment of Error is overruled.



                                         III. Medical Bills

       {¶ 26} Keith’s Second Assignment of Error, as we interpret it, is that:

              The Trial Court Erred by Awarding Appellee Reimbursement for

       Medical Bills.

       {¶ 27} Under this assignment of error, Keith argues that the trial court erred in

ordering him to pay medical bills because he was unemployed at the time of the divorce,

and Sheryl was capable of supporting herself. Keith further contends that the court failed

in these ways: (1) to consider his spreadsheet (Defendant’s Ex. BBB); (2) to find that

some listed expenses were duplicates; and (3) to find that Keith should not be responsible

for bills that were not submitted to insurance.

       {¶ 28} “The statute governing marital property division requires a trial court to

divide marital property equitably between the parties.”        Ulliman v. Ulliman, 2d Dist.

Montgomery No. 22560, 2008-Ohio-3876, ¶ 28, citing R.C. 3105.171(B). “Like assets,

debts too are considered part of the marital property that must be divided. * * * The division

decision begins with an equal division, but the court may divide the property unequally if

it believes that equality would be inequitable.”      Id., citing R.C. 3105.171(C)(1).     “A
                                                                                           -11-


marital debt is any debt incurred during the marriage for the joint benefit of the parties or

for a valid marital purpose. * * * Debts incurred during the marriage are presumed to be

marital unless it can be proved that they are not.” Bennett v. Bennett, 2d Dist. Clark No.

2012 CA 36, 2012-Ohio-5788, ¶ 44. The party seeking to prove a debt is separate

instead of marital has the burden of proof. Id.

       {¶ 29} Trial courts have broad discretion over the division of marital property.

Dickinson v. Dickinson, 2d Dist. Champaign No. 2012-CA-5, 2012-Ohio-4856, ¶ 20. We,

therefore, review a court’s decision for abuse of discretion, which “ ‘implies that the court's

attitude is unreasonable, arbitrary or unconscionable.’ ” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980). “It is to be expected that most instances of abuse of discretion

will result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.”      AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). A decision is

unreasonable if no sound reasoning supports the decision. Id.

       {¶ 30} The issue of medical expenses was considered extensively by the trial

court, which held hearings on two separate days (September 20 and December 21,

2017). In its decision, the court found that it could verify $23,308.87 in medical bills that

Sheryl had paid, and $1,871.38 in outstanding bills. These bills were incurred on behalf

of Sheryl, the son and the daughter (prior to the date of her emancipation on August 31,

2018). The court found it equitable to impose one-half of the expenses on Keith and

ordered him to pay $11,654.44 within six months of the filing of the divorce decree and to

pay his half of the unpaid medical bills ($935.69) directly to Sheryl within 60 days of the
                                                                                      -12-


filing of the decree.

        {¶ 31} The trial court’s decision was consistent with R.C. 3105.171(C)(1), which

envisions an equal division of property and debts, unless it would be inequitable. Keith

contends that the decision was inequitable because Sheryl’s listed income ($150,000)

was significantly greater than his income ($23,088). Keith also estimates that Sheryl’s

income is over $200,000 per year, based on an escalating lease and its non-taxable

nature. Thus, according to Keith, the trial court erred in only using $150,000 when

calculating child support (and in considering the disparity of incomes).3

        {¶ 32} Keith’s child support was substantially reduced to around $186 per month,

due to his temporary unemployment. The record indicates that Keith had two master’s

degrees – an MBA and an MSW – and was a well-experienced chief executive officer of

hospitals.

        {¶ 33} Keith initially came to the Dayton, Ohio, area in November 2013 as a chief

executive officer (“CEO”) for Haven Behavioral Healthcare. After resigning and being

out of work for a short time, Keith took a position as CEO for a company called Diamond

and started in December 2015, at a base salary of $148,000. He then voluntarily left

Diamond in October 2016 and took a position as CEO at Assurance Health System, a

psychiatric hospital in Blue Ash, Ohio. At trial in January 13, 2017, Keith reported that

his salary was $130,000, with a possible bonus of $6,500. According to Keith, the typical

life span of a CEO in healthcare is three years, and if the position with Assurance

terminated, he would need to find something locally because he did not want to relocate.

        {¶ 34} During the marriage, Sheryl did not work outside the home, and Keith


3   The amount of child support was not raised as a separate issue.
                                                                                      -13-


maintained the family’s health insurance through his employment. When the action

began in 2015, Sheryl was receiving a total of about $13,314 yearly in taxable income

from the Salt River Indian Community, SeaAlaska Corporation, and Gold Belt, and non-

taxable income of around $68,285 from land she owned in Arizona. In October 2016,

the amount of the nontaxable lease payment increased by about $2,100 per month,

meaning that Sheryl was receiving about $93,420 annually in nontaxable payments when

she testified at trial in May 2017.

       {¶ 35} As noted, this case was pending for a long time. In early January 2019,

Keith filed a motion to reduce his child support because he was then unemployed. At a

hearing held before a magistrate, the magistrate noted that Keith had been downsized

and was looking for a job. February 23, 2019 Hearing Transcript, p. 6. At the hearing,

the magistrate indicated that a figure of $150,000 in income would be used for Sheryl,

and a figure of $23,088 in unemployment income would be used for Keith. In addition,

Sheryl would be ordered to obtain health insurance, and she would be credited for that

cost on the child support calculation worksheet. Id. During the hearing, Keith agreed

to everything the magistrate read into the record. Id. at p. 13. He also did not file any

objections to the magistrate’s decision and order, which was filed on February 20, 2019.

See Doc. #220. The trial court, therefore, did not err in using $150,000 for Sheryl’s

income for purposes of the final divorce decree, which was filed about a month after the

magistrate’s hearing. Thus, there was a disparity, but not the amount that Keith asserts.

       {¶ 36} More importantly, the evidence indicates that Keith was capable of earning,

and had consistently earned, an income equal to what Sheryl was receiving at the time

the divorce decree was filed. Keith had also received a substantial reduction in child
                                                                                           -14-


support, and was cohabitating with a woman who was employed, thereby reducing his

expenses.        As a result, the trial court did not act unreasonably, arbitrarily, or

unconscionably in requiring Keith to pay one-half of the medical bills that were incurred

during the proceedings. Notably, Keith was not required to pay any medical expenses

that were incurred after the hearing on June 18, 2018, even though the divorce was not

final until nearly a year later.

          {¶ 37} As to the bills themselves, the assertions in Keith’s brief are incorrect in

several respects.      First, Keith’s comments about Sheryl’s testimony are inaccurate.

Keith contends that Sheryl knew that she could receive insurance through the Indian

Health Service (“IHS”), and had refused to submit all paid claims to this secondary

insurance. In contrast, Sheryl testified that while her older children were enrolled in IHS,

their minor son was not, and she was unaware that IHS can act as a secondary insurance

policy.     See December 21, 2017 Hearing Transcript, pp. 243-244.            There was no

evidence that Sheryl had refused to submit claims to IHS.

          {¶ 38} In addition, Sheryl indicated that persons enrolled in IHS can go to a Native

American Hospital or clinic. She noted that Ohio has no such facilities and the nearest

facility is in Chicago. Id. at pp. 248-249. Sheryl also said she was unaware that medical

bills can be submitted to IHS for payment if an IHS facility is not nearby. Id. at pp. 249-

250.4

          {¶ 39} Keith is also incorrect in claiming that the trial court erred in failing to

consider his spreadsheet, Ex. BBB, which allegedly summarized all the medical bills and



4Keith did not submit any evidence that the alleged matters were true; he simply asked,
during his pro se cross-examination, if Sheryl were aware of these points.
                                                                                          -15-

errors that Keith found. See Appellant’s Brief, pp. 8-9. Defendant’s Ex. BBB was not

discussed during any hearings, nor was it admitted into evidence.             The binder of

Defendant’s exhibits does contain a document labeled “Defendant’s Ex. BBB.” However

this document is not a spreadsheet; it is a Bank of America money-market statement for

Sheryl for October 22, 2016 to November 21, 2016.

       {¶ 40} We have repeatedly stressed that “ ‘[a] reviewing court cannot add matter

to the record before it, which was not a part of the trial court's proceedings, and then

decide the appeal on the basis of the new matter.’ ” Taylor v. Taylor, 2d Dist. Miami No.

2012-CA-16, 2013-Ohio-2341, ¶ 90, quoting State v. Ishmail, 54 Ohio St.2d 402, 377

N.E.2d 500 (1978), paragraph one of the syllabus.

       {¶ 41} In his brief, Keith has provided a list of 11 instances where duplicate exhibits

were submitted to substantiate Sheryl’s payment of medical expenses. See Appellant’s

Brief at p. 9. According to Keith, if the duplicate exhibits are eliminated, the amount of

medical bills would be $7,401.48 less than was found by the trial court. However, we

disagree. We have reviewed and compared every exhibit contained in this list, and find

Keith’s assertions to be incorrect, and in some instances, frivolous.

       {¶ 42} For example, the first item in the list claims that Plaintiff’s Ex. 1-S is

duplicative of Plaintiff’s Ex. 1-T. These exhibits involve eye surgery that Sheryl had on

August 27, 2015, and visits that occurred before and after surgery. Ex. 1-S lists $784.06

in payments that Sheryl made to Dayton Eye Associates. Ex. 1-T lists payments totaling

$491.40 that Sheryl made to Dayton Eye Surgery Center. See December 21, 2017

Hearing Transcript, pp. 53-63. Sheryl testified that Plaintiff’s Ex. 1-T was not a duplicate

of 1-S. Id. at p. 219. Keith presented no evidence to dispute this.
                                                                                         -16-


      {¶ 43} Furthermore, during the second day of trial, on May 1, 2017, when Keith

was still represented by counsel, the parties presented the trial court with Joint Ex. I,

which was a list of issues the parties had resolved. May 1, 2017 Hearing Transcript, p.

18. Among these issues was a list of indebtedness the parties had incurred, which

included medical expenses.     Expenses for Dayton Eye Associates and Dayton Eye

Surgery Center were listed as stipulation numbers 49, 52, 57, 59, 60, 62, and 67.

Stipulation #52 stated that “[t]he parties have incurred a Dayton Eye Surgery Center

medical bill from November 11, 2015 in the amount of $491.40.” Joint Ex. I, p. 6. This is

the precise amount that Sheryl requested in Ex. 1-T.

      {¶ 44} The bills for Dayton Eye Associates were listed separately on the joint

exhibit as $474.53 (#49) and $261.69 (#57), which total $736.22. This is close to the

amount Sheryl claimed she had paid ($784.06).          Consequently, Keith’s argument is

frivolous. The exhibits reflecting payments for these separate items were not duplicated.

      {¶ 45} Similarly, Plaintiff’s Exs. 1-U and 1-V (also part of Keith’s first item) do not

reflect an attempt to receive duplicate payments for the same charge. Sheryl testified

that Ex. 1-U was a bill from Kettering Physician Network for her daughter. December 21,

2017 Hearing Transcript at p. 63. Sheryl requested reimbursement for $268, based on

payments of $100 on June 15, 2016, and $168 on November 2, 2016. Id. at pp. 62-63.

In contrast, Ex. 1-V reflects a payment of $40 on May 18, 2016 for treatment of the

daughter. All of these payments related to treatment of the daughter on May 18, 2016.

The total charge was $337, and four payments or adjustments were made: (1) a $40 co-

pay by Sheryl on the day of treatment; (2) an insurance adjustment of $29 on June 3,

2016; (3) a $100 payment by Sheryl on June 15, 2016; and (4) a payment of $168 by
                                                                                          -17-


Sheryl on November 2, 2016.       These payments and the adjustment total $337 – the

amount of the bill. Again, Keith’s argument is frivolous.

      {¶ 46} As noted, these two frivolous claims relate to the first item in Keith’s 11-item

list. Again, we have reviewed all the exhibits in question and have found no duplicates,

other than when comparing Plaintiff’s Exs. 2-W and 1-W (item (iv) on Keith’s list). Ex. 2-

W is a series of payments for treatment of the daughter and son by Pediatric Associates

of Dayton from August 7, 2015 to March 20, 2017.               At trial, Sheryl asked for

reimbursement of $554.75 for these appointments, as reflected in Ex. 2-W.               See

December 21, 2017 Hearing Transcript, p. 105. In contrast, Ex. 2-W indicates that

Sheryl had made $811.86 in payments for the appointments listed in the exhibit.5

      {¶ 47} Likewise, Sheryl asked for reimbursement of $246.93, based on Ex. 1-W,

which was a check to Pediatric Associates dated September 12, 2015. This check

corresponds to the total of payments for three doctor’s visits that are listed on pages 13-

14 of Ex. 2-W. The $246.93 payment in Ex. 1-W, therefore, could be said to be a

duplicate. However, as noted, Sheryl had only asked for payment of $554.75 based on

Ex. 2-W.

      {¶ 48} A third exhibit, Plaintiff’s Ex. 2-J, indicates that Sheryl also paid $66.04 on

another bill from Pediatric Associates around February 19, 2017. This was within the

March 30, 2017 time frame, meaning that, according to these three exhibits (2-W, 1-W,

and 2-J), Sheryl paid a total of more than $867.72 for the Pediatric Associates medical




5We did not include $42.78 in payments in Ex. 2-W, because they were made for Sheryl’s
emancipated son.
                                                                                           -18-


bills.6

          {¶ 49} At trial, Sheryl submitted summaries of what she paid for various medical

bills.    For example, Plaintiff’s Ex. 1 summarizes Plaintiff’s Exs. 1-A through 1-DD.

Likewise, Plaintiff’s Ex. 2 summarizes Plaintiff’s Exs. 2-1 through 2-HH.          On these

summaries, Sheryl only asked for reimbursement of the following amounts for the

Pediatric Associates’ bills: (1) $246.93 (Ex. 1-W); (2) $544.75 (Ex. 2-W); and (3) $66.04

(Ex. 2-J). The total of these amounts is $857.72.

          {¶ 50} Comparing the amount paid versus the amount requested, Sheryl actually

requested, and was awarded, about $20 less than she paid. Accordingly, even if any

error occurred, Keith was benefitted. His argument, again, is frivolous. The same type

of analysis applies to all the “duplicates” Keith claims. As noted, we have reviewed every

claimed duplicate, and the trial court did not credit Sheryl with duplicate payments.

          {¶ 51} Keith also contends that the amount of medical expenses should be

decreased by $9,115.05 because Sheryl failed to submit claims to the insurance company

or failed to submit them in a timely manner. Again, we disagree. According to the

evidence, Keith, either through his attorney or directly, was in possession of the medical

bills and Keith could have taken action to file claims. Keith should also have known that

his wife and children would incur medical expenses during the nearly four-year period

before the divorce was granted. Yet, he apparently took no steps to inquire; instead he

let Sheryl incur the burden of paying the medical expenses.

          {¶ 52} In addition, the trial court repeatedly stressed to Keith during the hearings



6 Contrary to Keith’s claim (also part of item (iv)), the payment in Ex. 2-J was not
duplicative, as it does not match any of the payments in Ex. 2-W.
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that he could file claims for any medical expenses that had not been submitted and keep

any money he received. The court also ordered Sheryl to cooperate with Keith in this

regard. E.g., December 21, 2017 Hearing Transcript at pp. 215-217 and 250.

      {¶ 53} As a final matter, Keith contends that he should have been given credit for

more than $10,000 that he paid to Sheryl for medical expenses. As support, Keith cites

Defendant’s Ex. CCC.      This exhibit is a February 2017 bank statement for Sheryl,

showing a beginning balance of $25.88 and an ending balance of $632.88.

Consequently, it has nothing to do with the alleged $10,000 payments. Keith also failed

to offer any testimony indicating that he had made such payments to Sheryl. He could

have also submitted his own bills for medical expenses he paid for himself, which would

have reduced the amount owed to Sheryl, if he indeed had such expenses.            However,

no such evidence was offered.

      {¶ 54} Based on the preceding discussion, the Second Assignment of Error is

overruled.



                                       IV. Attorney Fees

      {¶ 55} Keith’s final assignment of error, as we interpret it, states that:

             The Trial Court Erred in Awarding Attorney Fees to Sheryl.

      {¶ 56} Under this assignment of error, Keith contends that the trial court erred in

awarding Sheryl $25,000 in attorney fees because there was a disparity in incomes and

there was no evidence during trial that Keith had committed misconduct. Keith further

contends that the trial court miscalculated his potential income. This is based on Keith’s

claim that he would have difficulty duplicating his former income without relocating. In
                                                                                             -20-


addition, Keith maintains that Sheryl committed significant misconduct during trial by

obtaining repeated continuances, intentionally extending the trial, violating visitation

orders, and engaging in criminal acts toward him.

           {¶ 57} The trial court concluded, pursuant to R.C. 3105.73(A), that it would be fair

and equitable to award attorney fees to Sheryl in lieu of spousal support. Doc. #221 at

p. 4. After hearing evidence indicating that Sheryl accumulated $59,236.65 in attorney

fees, the trial court awarded her $25,000 in attorney fees in lieu of spousal support. The

court ordered Keith to pay these fees at a rate of $1,000 per month until they were paid

in full.

           {¶ 58} R.C. 3105.73(A) provides that:

                  In an action for divorce, dissolution, legal separation, or annulment

           of marriage or an appeal of that action, a 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' marital assets and income, any award

           of temporary spousal support, the conduct of the parties, and any other

           relevant factors the court deems appropriate.

           {¶ 59} Trial court decisions to award attorney fees are reviewed for abuse of

discretion. Buckingham v. Buckingham, 2018-Ohio-2039, 113 N.E.3d 1061, ¶ 104 (2d

Dist.), citing Janis v. Janis, 2d Dist. Montgomery No. 23898, 2011-Ohio-3731, ¶ 78. “We

may not substitute our judgment for that of the trial court unless, when considering the

totality of the circumstances, we conclude that the trial court abused its discretion.” Janis

at ¶ 78, citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989).
                                                                                         -21-


       {¶ 60} In June 2018, the trial court held a hearing on attorney fees. At that time,

Sheryl’s attorney testified about the amount of his fees through December 21, 2017,

which was $59,236.65. He also presented testimony from an experienced local attorney

who stated that the case was very complex, and that the bill and the hourly rate of Sheryl’s

attorney were reasonable and necessary.

       {¶ 61} Notably, Keith called his former attorney, Thomas Kopacz, as a witness.

Kopacz had handled Keith’s case for about a year and a half before leaving the practice

of law and withdrawing from representation in June 2017. When the trial judge asked

Kopacz if he believed that any of Sheryl’s actions were superfluous or unnecessary when

he represented Keith, Kopacz said “I don’t recall any such event, your Honor. It was a

hard fought battle Mr. Kirkland and I were in * * *.” June 18, 2018 Hearing Transcript, p.

75.

       {¶ 62} During the fee hearing, Keith did not testify and did not introduce any

exhibits. Furthermore, the exhibits that Keith discusses in his brief (Defendant’s Exs.

KK, OO, PP, QQ, RR, LL, DDD, and SS) were not admitted into evidence at trial. As we

noted, “ ‘[a] reviewing court cannot add matter to the record before it, which was not a

part of the trial court's proceedings, and then decide the appeal on the basis of the new

matter.’ ” Taylor, 2d Dist. Miami No. 2012-CA-16, 2013-Ohio-2341, at ¶ 90, quoting

Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500, at paragraph one of the syllabus.

       {¶ 63} The attempt to admit new evidence applies to many statements in Keith’s

brief as well, like his comments about matters such as Sheryl changing her address or

calling Keith’s employer. There was no evidence at trial about these alleged matters.

During one hearing, brief testimony about Sheryl’s misdemeanor conviction concerned
                                                                                          -22-


Exs. OO and PP, but these exhibits were not admitted into evidence. Nonetheless, we

fail to see how this criminal conduct impacted Sheryl’s attorney fees or prolonged the

divorce action.

       {¶ 64} In any event, the trial court awarded Sheryl less than half the fees she

requested. Given the minimal amount of child support, Keith’s income potential, and the

fact that he was allowed to pay only $1,000 a month, the court’s decision was not

unreasonable. The trial court also ordered the fees in lieu of spousal support, despite

the fact that the parties had been married more than 20 years, and Sheryl had not worked

outside the home. Admittedly, Sheryl received income from land she owned. However,

no testimony was offered with respect to the nature of the leases that generated the

income or how long the income would last.

       {¶ 65} As an additional point, the trial court noted in the fee hearing that one of the

main factors in the delay of the case was Keith’s use of multiple attorneys, which caused

issues.   June 18, 2018 Hearing Transcript, p. 101.          Keith also caused delay and

additional attorney fees by filing four motions to show cause during the case, none of

which were successful – contrary to Keith’s assertion about Sheryl’s violation of visitation

schedules. See Appellant’s Brief, p.16.

       {¶ 66} Accordingly, we find no abuse of discretion in the trial court’s decision to

award attorney fees to Sheryl in lieu of spousal support.



                                          V. Conclusion

       {¶ 67} All of Keith’s assignments of error having been overruled, the judgment of

the trial court is affirmed.
                                               -23-


                               .............

DONOVAN, J. and TUCKER, J., concur.




Copies sent to:

James R. Kirkland
Keith A. Kuhn
Hon. Steven L. Hurley
