[Cite as In re J.H., 2011-Ohio-6536.]
                           STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


IN RE:                                        )    CASE NO. 10 JE 15
                                              )
         J.H.                                 )
                                              )
JASON T. HANLIN                               )
                                              )
         PLAINTIFF-APPELLEE                   )    OPINION
                                              )
VS.                                           )
                                              )
SHAUNA R. PARSONS                             )
                                              )
         DEFENDANT-APPELLANT                  )

CHARACTER OF PROCEEDINGS:                          Civil Appeal from the Court of Common
                                                   Pleas, Juvenile Division, of Jefferson
                                                   County, Ohio
                                                   Case No. 2005 PA 144

JUDGMENT:                                          Affirmed in part. Reversed in Part.
                                                   Remanded.

APPEARANCES:
For Plaintiff-Appellee:                            Atty. Jane M. Hanlin
                                                   Bruzzese & Calabria
                                                   P.O. Box 1506
                                                   100 N. Fourth Street
                                                   Steubenville, Ohio 43952

For Defendant-Appellant:                           Atty. Amanda J. Banner
                                                   Banner Law, LLC
                                                   3685 Stutz Drive, Suite 100
                                                   Canfield, Ohio 44406




JUDGES:
                                                                                   -2-


Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                               Dated: December 16, 2011



WAITE, P.J.

      {¶1}    Defendant-Appellant, Shauna Parsons and Plaintiff-Appellee, Jason

Hanlin established the parentage and care arrangements for their son J.H. through a

paternity suit in the Jefferson County Court of Common Pleas, Juvenile Division in

2005. Since the initial suit was resolved with a paternity determination and a shared

parenting agreement, the terms of the original parenting arrangements have been the

source of controversy and modified several times. Most recently, the two parties

have disagreed over the amount of money spent on school-related expenses and the

allocation of the dependant child tax exemption. Appellant filed a contempt motion

seeking to compel Appellee to pay for a full share of J.H.’s school needs and for the

costs of the action. Appellant also sought to change the agreed year-to-year shifting

of the dependant child exemption and instead retain the exemption herself as the

residential parent, which is the default arrangement under the law. Although the

lower court did not find Appellee in contempt, it did order him to reimburse Appellant

for a full half of the claimed school expenses. The court denied Appellant’s motion

for attorney’s fees associated with the cost of the contempt motion, denied her

motion to reallocate the tax exemption, and refused to allow her to supplement

discovery with a copy of her tax return after the court had ruled on the exemption.
                                                                                       -3-

On appeal Appellant seeks attorney’s fees for the contempt motion, a reversal of the

lower court’s ruling on the tax exemption and a reversal of the evidentiary ruling. The

lower court’s rulings on attorney’s fees and evidentiary matters were both within the

bounds of discretion. With regard to the dependant child tax exemption, the record

failed to establish the tax brackets of the parents, failed to include other necessary

information concerning income and tax credits, and failed to demonstrate the trial

court’s application of controlling law. For these reasons, the lower court’s decision is

affirmed in part and reversed in part and remanded for further proceedings.

                      Factual and Procedural History of the Case

       {¶2}   Appellee, Jason Hanlin and Appellant, Shauna Parsons were involved

in a relationship that resulted in the birth of their son, J.H., in 2003. During the first

few years of J.H.’s life the three lived together, although Appellee and Appellant were

never married. (Tr. p. 53.) The relationship ended at some point during 2005 and a

paternity suit was filed. The juvenile court ruled that Appellee was the legal parent of

J.H. and adopted the parties’ parenting agreement by reference. (11/14/05 J.E.)

Although the agreement identified Appellant as the custodian and residential parent

of J.H., and gave Appellee visitation rights, a visitation schedule and set an amount

for support payments, there were no separate court orders at that time, other than the

general language incorporating the agreement specifically ruling on custody and

support.   Later court orders modified the schedule of visitation, and introduced

shared payments for school needs, but did not alter the underlying support

agreement reached by the parties in 2005.
                                                                                       -4-

       {¶3}   At the end of the paternity proceeding, when the original support

agreement was adopted by both parties, Appellant and Appellee were both single,

and Appellant was in school studying nursing.         Under the terms of the original

agreement, Appellant, as the custodial parent, would claim J.H. as a dependant, as

she had been since his birth. Commencing with tax year 2007, the parties agreed

that Appellee would be allowed to claim J.H. on the odd years and Appellant would

claim him on the even years. (11/14/05 J.E.)

       {¶4}   Beginning with a May 25, 2007 “Motion to Enforce or Clarify Parenting

Time Schedule” filed by counsel for Appellee, attempts to modify or enforce support

orders became increasingly acrimonious.         Appellant sought to have Appellee’s

counsel removed due to a conflict resulting from her involvement with Appellee.

Counsel was then engaged to Appellee and is now his wife. The trial court allowed

counsel to remain. (8/29/07 J.E.)

       {¶5}   On June 16, 2008 the juvenile court modified the original support

agreement, amended the parenting schedule, and required Appellee to pay half of

the school-related expenses. With regard to the tax exemption, the entry states:

“[t]he Court ruled on the tax dependency issue and the same will remain as

previously Ordered[sic],” however, the court did not identify the prior ruling to which it

referred. (6/16/08 J.E.) The record contains the original November of 2005 support

order allocating the exemption. After the case was re-opened in 2007, the record

reflects an April 14, 2008 magistrate’s order allocating the 2007 exemption to

Appellee, followed by an April 24, 2008 motion by Appellant to set aside the
                                                                                     -5-

magistrate’s order, and a May 2, 2008 judgment entry denying Appellant’s motion to

set aside. We note that there is no order of the court adopting the magistrate’s April

14, 2008 decision. (Magistrates Order, 4/11/08.) Thus, the only valid order of the

court allocating the exemption appears to be the November 14, 2005 support order.

       {¶6}    In 2008 and 2009 Appellee did not fully reimburse Appellant for half of

the school expenses he was ordered to pay in June of 2008. Appellee instead

insisted on seeing receipts; when he was provided receipts, he found defects in the

receipts provided. Appellee challenged the abbreviated descriptions of the clothing

on the receipts, refused to pay for clothing purchases made before August or

September, and refused to pay for clothing he thought J.H. had worn before the

beginning of the school year. He also objected to paying for items in any receipt if

the copier had cut off the transaction date. Rather than pay half of the amounts

totaled in the receipts, Appellee calculated his own total, and then sought to discount

that total by money he had spent occasionally filling J.H.’s prescriptions and for other

incidentals.

       {¶7}    In December of 2009, having requested payment, provided itemized

bills, and provided receipts and copies of receipts, Appellant filed a contempt order

alleging Appellee had failed to comply with the June 16, 2008 modification of the

parenting agreement. She also filed a motion to reallocate the tax exemption to her

solely, because she is the residential parent, because of the benefits to the child the

exemption would provide, and due to the change in circumstances caused by

Appellee’s remarriage.     Appellant also suggested that rather than argue with
                                                                                     -6-

Appellee each year over the school expenses, she would prefer to have the tax

exemption and cover the expenses alone. Appellant accepted a different nursing job

in 2009 with a lower rate of pay because the schedule would allow her to work when

Appellee is off, rather than at the same time. The flexible schedule places her at

work on fewer of her days with J.H. and more of the days when J.H. is with Appellee.

       {¶8}   A hearing on the expense and tax issues was continued several times

and finally held on April 8, 2010 before a magistrate. Although Appellant provided

her W-2 statements to the court and to opposing counsel in discovery, she had not

yet filed her returns when the hearing was conducted, because she was waiting for

the court’s decision about the exemption. In contrast, Appellee and his wife had filed

their return claiming J.H. in addition to two children from the wife’s prior marriage.

Appellee provided his own W-2 but refused to produce a W-2 and other documents

verifying his wife/counsel’s various sources of income.        Appellee also provided

several tax scenarios, with differing data points, on the letterhead of an accounting

firm. No testimony was offered by the individual who prepared this information to

explain it, nor were the underlying data or calculations included. The magistrate’s

decision was entered on April 14, 2010.         Appellant filed timely objections to the

magistrate’s decision on May 12, 2010. Over a month after the magistrate entered a

decision, on May 24, 2010, Appellant attempted to supplement discovery with her

2009 tax return, however, Appellee filed a motion to strike which was granted by the

court. Both the motion to strike and the trial court’s decision granting it were filed

after the trial court’s determinations on the merits.
                                                                                       -7-

       {¶9}     The trial court adopted the magistrate’s decision and findings in a brief

judgment entry on May 26, 2010. The trial court adopted the finding that Appellee

was obligated to pay for a full half of the expenses listed by Appellant, an additional

$317.04 for both years, but did not find Appellee in contempt or award attorney’s

fees. The court overruled Appellant’s objections to the magistrate’s decision in a

single sentence, stating “[t]he Motion for Reallocation of the Tax Exemption is

OVERRULED and the parties will continue to alternate the tax exemption.” The court

adopted and incorporated the magistrate’s April 14, 2010 decision by reference only.

(5/26/10 J.E.) Neither the magistrate’s decision nor the trial court’s entry included

factual findings as to the tax exemption, nor did they identify the basis for the

decision.     The magistrate had resolved the issue with only a general statement:

“[t]he Court does not find that it is in the child’s best interests to modify the previous

Order of the Court as it pertains to the allocation of the tax exemption.” (4/14/10

Magistrate’s Decision, p. 2.) Appellant filed a timely notice of appeal of the trial

court’s decision.

                                First Assignment of Error

       {¶10} “The trial court abused its discretion in failing to specify whether the

factors of R.C. 3119.82 were applied in its determination that it was not in the best

interests of the minor child to allocate the tax exemption solely to the

mother/residential parent.”

       {¶11} As Appellee and Appellant were never married, all determinations as to

custody and support of the minor child are within the jurisdiction of the juvenile court.
                                                                                    -8-

The two initially resolved the custody, support, visitation, child care, and tax

exemption issues concerning J.H. in a “shared parenting agreement” adopted by the

court on November 14, 2005 at the conclusion of the initial parentage suit. The

provisions of the parties’ agreement included a requirement that Appellee pay child

support and a determination as to visitation with the child.     The agreement also

provided that Appellant maintained the right to claim J.H. on her tax returns until she

graduated from her nursing course. (11/14/05 J.E.) For the most part the parties’

agreement mirrored the default requirements under the law, i.e. a biological father is

required to provide support, may seek and be granted visitation rights, and the

biological mother is the custodial and residential parent. Because the mother is, by

law, the custodial and residential parent, she undisputedly would have the right to

claim the child or children as dependant on her tax filings. (R.C. 3109.042.) In some

respects the agreement of the parties, here, extended or varied the rights and

obligations established by law with regard to a child born out of wedlock: restrictions

were placed on who could be used for child care if either biological parent was

unavailable, and the parties agreed that the right to claim the dependant child tax

exemption was to be alternated between them after Appellant completed school

(rather than remaining with Appellant).      This agreement, and the subsequent

alterations to the agreement, stands in lieu of separate support and visitation orders

by the court.

       {¶12} Since 2007, pursuant to this agreement, Appellant and Appellee have

alternated the federal tax exemption for their minor child.         Appellant, as the
                                                                                    -9-

residential parent, is now seeking to have the exemption allocated solely to her. In

rebuttal, Appellee argues that this issue has been raised and settled multiple times by

the juvenile court. The number of times the issue has been raised is not relevant to

our determination, however; the exemption, like all other issues concerning the care

and support of the minor child, is subject to the continuing jurisdiction of the court.

Appellee also argues that Appellant is required to make her motion to reallocate the

tax exemption in the context of a motion to modify a support order. He argues that

there is no support order in the current matter, and that unless Appellant seeks a

change in support her motion to reallocate the exemption is not properly before the

court.    Finally, Appellee posits that Appellant is required to show a change in

circumstances before reallocation is appropriate, and that Appellee has met his

burden with regard to R.C. 3119.82.

         {¶13} We review domestic relations and juvenile cases, including those

concerning the allocation of the federal tax dependency exemption, under an abuse

of discretion standard. In re Criner (Aug. 27, 2001), 7th Dist. No. 99 BA 57, 2 (citing

Corple v. Corple (1997), 123 Ohio App.3d 31, 33.) An abuse of discretion connotes

more than an error of law or judgment it implies an attitude that is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

Although the modification of a custody decree requires the court to find a change in

circumstances and determine that the change is in the best interests of the child, the

modification of the terms of a parenting plan or agreement requires only an

evaluation of the best interests of the child. Fisher v. Hasenjager (2007), 116 Ohio
                                                                                    -10-

St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶33 (a plan or agreement is not used by

a court to grant parental rights and responsibilities, which can only be done by order

or decree.   A shared parenting plan or agreement, by contrast, details how the

parties are to implement the court’s determination of parental rights, and as such is

less critical and may be altered as needed in the best interests of the child.) In the

context of the allocation of the dependant child tax exemption, we have previously

explained that “there is a presumption in favor of granting the dependency exemption

to the residential parent * * * the burden is on the nonresidential parent to produce

competent and credible evidence to show that allocating the dependency exemption

to the nonresidential parent would be in the best interests of the child.” Maessick v.

Maessick, 171 Ohio App.3d. 492, 2006-Ohio-6245, ¶15. We have declined to limit

this burden on the nonresidential parent to produce evidence to rebut the

presumption in favor of the residential parent even where there is a prior agreement

allocating the exemption to the non-residential parent and the residential parent is

challenging the allocation for the first time. Id. at ¶15, 24 citing In re Criner, supra.

Although normally the matter is triggered by some other event, which allows notice to

the non-residential parent that the allocation of the exemption is in dispute, no

separate trigger issue exists here because Appellant filed a motion specifically

seeking reallocation. Maessick, ¶31. Additionally, “the statute does not make a

distinction between the court’s duty in making an initial child support order and a

modified order,” or, as is the case here, a modification of the original agreement

allocating the exemption.     R.C. 3119.82, Maessick, supra, ¶24 discussing In re
                                                                                       -11-

Criner, supra; Singer v. Dickinson (1992), 63 Ohio St.3d 408, 414, 588 N.E.2d 806,

811.      Thus, under existing law, where the residential parent seeks to assert the

default allocation of the exemption and abandon an agreed variance, the court must

choose to either enforce the default (which is presumed to be in the child’s best

interest) or conduct the relevant analysis as though it were making an initial

determination.

          {¶14} If the trial court follows the presumption and allocates the exemption to

the residential parent, no inquiry into the net benefit is necessary. Where the trial

court chooses to allocate the exemption away from the residential parent, or chooses

to continue allocating the exemption away from the residential parent, the trial court

must “review all pertinent factors, including the parents’ gross incomes, the

exemptions and deductions to which the parents are otherwise entitled, and the

relevant federal, state, and local income tax rates.” Id. at paragraph two of the

syllabus. The court must also follow the procedure described in R.C. 3119.82, which

states:

          {¶15} “If the parties do not agree, the court, in its order, may permit the parent

who is not the residential parent and legal custodian to claim the children as

dependents for federal income tax purposes only if the court determines that this

furthers the best interest of the children * * * In cases in which the parties do not

agree which parent may claim the children as dependents, the court shall consider, in

making its determination, any net tax savings, the relative financial circumstances

and needs of the parents and children, the amount of time the children spend with
                                                                                    -12-

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

credit or other state or federal tax credit, and any other relevant factor concerning the

best interest of the children.”

       {¶16} While net tax savings and eligibility for other credits are only two of the

five factors the court must consider, both are often misconstrued by the lower courts,

including the court in this instance.    As this court has previously explained, the

dependant child tax exemption “allows a parent to deduct a fixed dollar amount from

his or her gross income for each dependant child claimed on the federal income tax

return.” In re Criner, *1. Tax refunds are not representative of this number, nor are

they indicative of the net tax benefit the deduction may provide due to eligibility for

other deductions, credits or exemptions which are contingent on the ability to claim

an eligible dependent. Tax refunds should not be the basis of a court’s net tax

benefit analysis. In fact, decisions that rely solely on the amount of the tax refund

have been reversed on an abuse of discretion basis. Cawrse v. DiLallo, 6th Dist.

No.L-06-1329, 2007-Ohio-3684, ¶35.

       {¶17} We have previously stated that when the lower court considers the net

tax benefit to each parent, it must look at the tax brackets of each parent.

Evangalista v. Horton, 7th Dist. No. 08 MA 244, 2011-Ohio-1472, ¶74-75. While

there are a variety of factors that determine a person’s tax liability other than the tax

bracket, this factor is certainly determinative in awarding the dependency exemption.

Id. at ¶74. This factor determines the net benefit of the exemption itself because it

sets the value of the exemption to each party. The actual value of the dependant
                                                                                  -13-

child exemption is the amount of the exemption in that tax year, multiplied by the rate

of taxation paid by the party.

       {¶18} The net value of the deduction itself, however, does not determine the

total tax benefit under either Singer or R.C. 3119.82, because while the net value of

the ability to claim the exemption may be greater for the party who has higher income

(presuming that the individual with greater income pays tax at a higher rate), the

party with the lower income may be eligible for other credits, deductions, or

exemptions by virtue of the ability to claim a dependant child. This may result in a

greater total tax savings due to that dependant child. For this reason, the lower

court’s inquiry must include not only the tax brackets of both parents, but also

evidence “concerning whether or not the parties have other exemptions or

deductions or taxable income, whether each party could file joint income tax return,

whether or not either party has income that impacts the relevant federal, state, and

local income tax rates” and any tax credits available to the parties both with and

without the ability to claim the child as a dependent. Boose v. Lodge, 3d Dist. No. 6-

03-04, 2003-Ohio-4257, ¶9; see also Foster v. Foster, 6th Dist. No. S-03-037, 2004-

Ohio-3905, ¶21. Again, these are discrete numbers which may be ascertained by

examining the credits, deductions, or exemptions available in the relevant tax year,

and this information, in combination with evidence of gross income from all sources,

must be provided to the court pursuant to Singer and R.C. 3119.82. Tax refunds,

projected tax burdens, and estimated quarterly payments, especially those for the

following tax year, are not relevant.
                                                                                   -14-

      {¶19} The amount of a tax refund is the gross result of numerous factors,

including whether a party has withheld the proper amount.          If a party has over

withheld and the lower court fails to make the proper inquiry into the applicable tax

rates, gross income, other exemptions, deductions, and credits, the court may

erroneously conclude that the party receiving the larger refund would provide the

child a greater benefit.   This is simply not the case.     A party who has properly

withheld, and in fact would receive no refund in the relevant year, may nevertheless

be the beneficiary of a greater tax benefit by virtue of the exemption. Finally, if the

trial court concludes that the benefit to both the residential and the non-residential

parent is “about the same,” the presumption in favor of the residential parent controls.

Evangelista, supra, ¶75. Again, the tax benefits of the exemptions are not the only

factors to consider; the relative income of the parents, the greater impact of tax

savings on the spending ability of the parent with a lower income, and the best

interests of the child must also be evaluated under the applicable statutes and

caselaw.

      {¶20} The trial court has discretion to include or to exclude the income of a

new spouse when recalculating child support or when calculating the net benefit of a

tax exemption. Lazenby v. Bunkers, 6th Dist. No. WD-09-046, 2010-Ohio-3075, ¶14;

Hutchinson v. Hutchinson (1993), 85 Ohio App.3d 173, 177-178, 619 N.E.2d 466.

The allocation of the tax benefit is intended to enhance the monetary support

available for the child. Logically then, only the income considered in the support

determination or the income providing support should drive the net benefit analysis.
                                                                                     -15-

Appellant did not seek to have support recalculated based on Appellee’s change in

circumstances, but such a request is contemplated by the statute and may be

appropriate if Appellee’s evidence of net benefit is contingent on his wife’s income.

       {¶21} The deficiencies in the underlying determination in this instance are

two-fold; first, the information in the record is not responsive to the relevant tax

inquiry, and second, the trial court’s summary adoption of the magistrate’s decision

fails to specify what factors, and the information relevant to those factors, the trial

court considered when reaching its decision. The net tax benefit is only one of the

five factors for the court to consider under the statute when making its determination

and is not dispositive. However, it is the sole factor the lower court appears to have

relied on in making its determination, here. Based on the information in the record

before us, that reliance appears unfounded. The actual net tax benefit that can be

ascertained from this record weighs in favor of Appellant, as does the fact that she is

the residential parent, has significantly lower income, and appears to be primarily

responsible for the purchasing decisions for J.H. These facts coupled with the reality

that Appellee has demonstrated himself to be reluctant to contribute his half of the

school expenses for two years running, and has attempted to avoid portions of his

contribution by trying to “set off” his portion of expenses against the deductible for

health care expenses Appellant is obligated to cover, suggests a reluctance to

provide financially for J.H. Appellee’s reticence is illustrated by the fact that while he

was refusing to pay his half of the school-related expenses he had obtained a 2007

tax refund, yet refused to use it to pay for these expenses for J.H.
                                                                                      -16-

       {¶22} On remand, the trial court needs to be mindful “that removing an

exemption from a residential parent equally decreases that parent's ability to support

the child and, therefore, adversely affects the best interest of the child residing with

that parent.” Hurchanik v. Hurchanik (1996), 110 Ohio App.3d 628, 632, 674 N.E.2d

1260 citing Singer. Despite Appellee’s testimony as to his household income and the

tax benefits to his wife, mostly provided by leading questioning, the only clear

testimony from Appellee is that his solo income is “very similar” to Appellant’s. (Tr.,

p. 70.)   Where the parents of the child in question make similar amounts the

preference for the residential parent decides the question, unless there are other

factors that demonstrate the greatest benefit to the child would accrue against that

preference. Evangalista, supra, at ¶14-15. Although there is testimony that J.H.’s

parents actually make almost the same amount, and would on their own fall into the

same bracket, triggering the presumption in favor of the residential parent, the trial

court instead appears to have reversed the burden to prove a benefit. Rather than

adhere to the presumption in juvenile court matters that it is in the child’s best interest

to allocate the exemption to the residential parent, the court instead has given

preference to the claims of the non-residential parent and inverted the normal

burden.

       {¶23} We also note that the relevant pieces of information concerning net tax

benefit do not appear in the record, the transcript of the hearing or the exhibits. The

order adopting the magistrate’s decision is devoid of a discussion of the R.C. 3119.82

factors. Any order changing the presumption from the custodial parent must follow
                                                                                     -17-

R.C. 3119.82 and contain an enumeration of the relevant factors. A record where

“[t]he only analysis of and justification for the division of the tax dependency

exemption * * * is the blanket statement that it was found to ‘be in the best interests of

the child’” is insufficient. In re Marriage of Henson, 11th Dist. No. 2006-T-0065,

2007-Ohio-4376, ¶46.       Appellant’s first assignment of error has merit and is

sustained.   This matter is remanded to the trial court for an allocation of the

dependant child tax exemption that complies with Singer and R.C. 3119.82.

                              Second Assignment of Error

       {¶24} “The lower court abused its discretion in failing to award reasonable

attorney’s fees and costs on mother’s contempt motion.”

                               Third Assignment of Error

       {¶25} “The lower court abused its discretion in striking mother’s supplemental

response to father’s discovery requests, based upon her continuing duty to

supplement.”

       {¶26} Appellant argues that although the trial court did not find Appellee in

contempt, because the court did determine that he failed to meet his support

obligation, it abused its discretion in failing to award attorney’s fees. Appellant also

argues that the court erred in striking her tax return which was filed as a supplement

to discovery. The trial court’s denial of a motion for attorney’s fees and decision to

grant a motion to strike are both reviewed under the same abuse of discretion

standard and the two will be considered together. A court abuses its discretion when
                                                                                      -18-

it makes a decision that is unreasonable, arbitrary or unconscionable. Blakemore,

supra.

         {¶27} “Civil contempt utilizes a sanction which is imposed to coerce the

contemnor to comply with the court's order. Under civil contempt, prison sentences

are conditional, i.e., the contemnor is imprisoned until he obeys the court order. [‘]If

sanctions are primarily designed to benefit the complainant through remedial or

coercive means, then the contempt proceeding is civil.[’]           It is undisputed the

contempt in the instant action is civil. Punishment imposed on an adjudication of civil

contempt must afford the contemnor an opportunity to purge himself of contempt.

[‘]The contemnor is said to carry the keys of his prison in his own pocket * * * since

he will be freed if he agrees to do as so ordered.[’]” Bagnola v. Bagnola, 5th Dist.

App. No. 2004CA00151, 2004-Ohio-7286, ¶39 citing Bishop v. Bishop (April 15,

2002), Stark App. No. 2001CA00319, 2002-Ohio-1861. A court may, therefore, order

fees in order to purge contempt. Here the court found no contempt, therefore no

penalty was necessary. The court’s decision that no attorney’s fees were merited in

a suit where father’s noncompliance was not found to be willful is within its discretion.

         {¶28} Similarly, a trial court has the authority, after entry of a divorce decree,

to order the divorced husband to pay his former wife a reasonable amount for

attorney’s fees incurred in post-decree modification proceedings relative to the

support or custody of the minor children of the marriage. Cohen v. Cohen (1983), 8

Ohio App.3d 109, 8 OBR 143, 456 N.E.2d 581, at paragraph one of the syllabus,

cited by Hughes v. Hughes (1991), 72 Ohio App.3d 286, 292, 594 N.E.2d 653, 657.
                                                                                      -19-

Although the parties were not married, the same principle applies to the support

agreement at issue, here. “That discretion, however, is not without limit. Wary of the

ramifications of establishing an absolute rule that a husband pay attorney fees

incurred by a wife at any stage of a divorce proceeding, the courts have required that

the demand be reasonable, within reasonable limits, or necessary in view of the

circumstances.” Cohen at 111. The fact that a court may award reasonable fees is

not a requirement that the court must award fees.            The magistrate’s decision

suggested that Appellant could have made further attempts to resolve the

disagreement about the school expenses, short of litigation. Although it is unclear

what steps the court would prescribe in the face of Appellee’s refusal to pay, beyond

those Appellant took (discussing a budget, itemizing the expenses, providing the

receipts, and asking Appellee for half), it is nevertheless within the discretion of the

court to decide that attorney’s fees were not merited in this instance. We may not

substitute our judgment for that of a trial court acting within the bounds of discretion.

       {¶29} Accordingly, Appellant’s second assignment of error is without merit

and is overruled.

       {¶30} Similarly, Appellant’s tax returns were filed long after the magistrate had

rendered its decision and after Appellant filed her objections to that decision. Under

the circumstances, the records may not even have reached the trial court by the time

it issued its final appealable order two days later and the records may no longer have

been relevant by that time. “The determination of a motion to strike is vested within

the broad discretion of the court.” State ex rel. Morgan v. New Lexington, 112 Ohio
                                                                                  -20-

St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶26. The court’s decision to strike the

records that were no longer relevant was within its discretion. On remand of this

issue, of course, these records will be properly before the court. Appellant’s third

assignment of error is without merit and is overruled.

                                      Conclusion

      {¶31} The trial court failed to apply the presumption in favor of the residential

parent and failed to base its decision as to the allocation of the credit on the gross

income of the parents, relative tax brackets, and credits.        The record is also

incomplete as to the court’s analysis and the basis for its decision. Accordingly,

Appellant’s first assignment of error is sustained and the matter remanded to the trial

court for the application of the relevant law and an enumeration of the factors. The

court’s rulings concerning attorney’s fees and evidence were within the court’s

discretion and are affirmed.


Vukovich, J., concurs.

DeGenaro, J., concurs.
