         [Cite as Griffin v. Griffin, 2019-Ohio-5260.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO




AUDREY N. GRIFFIN,                                       :   APPEAL NO. C-180550
                                                             TRIAL NO. DR-1501954
        Plaintiff-Appellee,                              :

  vs.                                                    :       O P I N I O N.

JAMES A. GRIFFIN,                                        :

    Defendant-Appellant.                                 :



Appeal From:         Hamilton County Court of Common Pleas, Domestic Relations
                     Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 20, 2019


Zachary D. Smith, LLC, and Zachary D. Smith, for Plaintiff-Appellee,

Eppley Legal Group and Mark C. Eppley, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




WINKLER, Judge.

       {¶1}    Defendant-appellant James A. Griffin (“James”) appeals from the divorce

decree entered by the Hamilton County Court of Common Pleas, Domestic Relations

Division, granting plaintiff-appellee Audrey N. Griffin’s (“Audrey”) complaint for divorce.

James contends the trial court erred by denying his motion to dismiss the action for lack

of subject-matter jurisdiction, and that his status as service member entitled him to a stay

or continuance of the hearing on his motion. Additionally, he argues the trial court erred

by adopting the parties’ agreement on parental rights and responsibilities and by ordering

him to pay some of Audrey’s attorney fees. For the reasons that follow, we affirm.

                          Background Facts and Procedure

       {¶2}    The record establishes that the parties met at James’s home in Cincinnati,

Ohio, in September 2012. At the time, Audrey was living with her parents in a house in

Blanchester, Ohio, and obtaining a nursing degree at a local university. James contracted

with the United States Navy for a minimum of five years. They married on July 27, 2013,

in Cincinnati and, after a honeymoon, the two moved to Tennessee due to military orders.

While in Tennessee, Audrey gave birth to their only child. The parties remained physically

present in Tennessee until March 2015, when James was assigned to officer candidate

school for 90 days in Newport, Rhode Island. While James lived in Rhode Island, Audrey

and the parties’ child returned to her parents’ home in Ohio, which after a move was

located in Anderson Township. After officer candidate school, James received orders to

move to Pensacola, Florida, for navy pilot training.       Audrey and James arrived in

Pensacola in July 2015.

       {¶3}    After a domestic dispute in September 2015, Audrey again returned to her

parents’ home in Ohio with the child. She filed this complaint for divorce in the Hamilton



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County Court of Common Pleas, Domestic Relations Division, in late October 2015,

followed by an amended complaint in late December for the purpose of obtaining

temporary orders of custody and support pursuant to Civ.R. 75(N). James remained in

Pensacola and, after the magistrate had issued the temporary orders, moved to dismiss the

Ohio action under Civ.R. 12(B)(1), contending that the Ohio court lacked subject-matter

jurisdiction.   James argued that Audrey’s allegation that she met Ohio’s six-month

minimum residency requirement, set forth in R.C. 3105.03, was factually deficient. James

then initiated divorce proceedings in Florida and obtained a contrary order of custody

after averring that, among other things, he had no information of any custody proceeding

pending in any court concerning the child.

        {¶4}    A hearing on James’s motion to dismiss this action was continued until

August 30, 2016. A week before the scheduled date, James moved to “continue” the

hearing and, one day before, moved to “stay” the action. In both motions, James cited the

Servicemembers Civil Relief Act (“SCRA”), which contains provisions addressing the

postponement or suspension of civil legal proceedings when a military service member is

on active duty. James indicated in his motions that he was on military training orders at

Fort Meade in Maryland.

        {¶5}    The magistrate denied James’s motions to continue and stay, and

proceeded with an evidentiary hearing on the motion. James did not appear but he was

represented at the hearing by counsel. After the presentation of evidence, including

Audrey’s testimony that she had not been physically present in Ohio for the entire six-

month period immediately before the filing of her complaint, the magistrate found

jurisdiction lacking and granted the motion to dismiss. Audrey filed an objection, arguing

that her lack of physical presence was not determinative and that the evidence showed she




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had never changed her domicile from Ohio, despite her involuntary moves based on

military orders. The trial court sustained Audrey’s objection and determined that Ohio

had subject-matter jurisdiction.

        {¶6}   James appealed from the trial court’s order denying the motion to dismiss

for lack of subject-matter jurisdiction, but this court dismissed that appeal for lack of

finality. See Griffin v. Griffin, 1st Dist. Hamilton No. C-170026, 2017-Ohio-8450 (“Griffin

I”). The case then proceeded in the Hamilton County Domestic Relations Court. During

this time, James did not cooperate with discovery requests or foster settlement of the

issues and sought to be named the residential parent. James also produced copious

amounts of irrelevant discovery that Audrey’s counsel had to review. Audrey’s counsel

also had to defend her in the Florida divorce action.

        {¶7}   The case was set for a custody and property trial on May 4 and 11, 2018,

before the magistrate. James appeared on May 4, and his attorney requested to relitigate

the issue of jurisdiction. The magistrate granted that request. However, after Audrey’s

counsel elicited unfavorable admissions from James on cross-examination, the parties

ended the trial and eventually settled all issues except for Audrey’s attorney fees. James

essentially accepted Audrey’s proposed parenting plan naming her the residential parent

that was similar to the recommendation provided by the court’s parent specialist in mid-

2016.

        {¶8}   After a hearing on attorney fees, the trial court entered the final decree of

divorce, which included the agreed order on parental rights and responsibilities and a

$30,000 award of attorney fees to Audrey.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



                                          Analysis

       {¶9}    In his first assignment of error, James argues the trial court erred by

denying his Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter jurisdiction. He

maintains that the evidence presented at the evidentiary hearing showed that Audrey had

failed to satisfy the six-month residency requirement of R.C. 3105.03.

       {¶10} Where, as here, the disposition of a Civ.R. 12(B)(1) motion involves mixed

questions of law and fact, we review the trial court’s legal determinations de novo and

must accept the trial court’s findings of disputed facts if they are supported by competent,

credible evidence. See Wilkerson v. Howell Contractors, Inc., 163 Ohio App.3d 38, 2005-

Ohio-4418, 836 N.E.2d 29 (1st Dist.), ¶ 10, citing Rijo v. Rijo, 1st Dist. Hamilton No. C-

930704, 1995 WL 35730 (Jan. 31, 1995), overruled on other grounds, Griffin I, 1st Dist.

Hamilton No. C-170026, 2017-Ohio-8450.

       {¶11} Audrey’s initial response invokes the waiver doctrine. She contends James

waived his right to raise the issue on appeal when he stipulated in the agreed entry

allocating parental rights and responsibilities that “Ohio has * * * subject matter

jurisdiction” over the complaint for divorce. But it is well settled that “litigants cannot vest

a court with subject-matter jurisdiction by agreement.”          Cheap Escape Co., Inc. v.

Haddox, LLC, 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 22; Glassman v.

Glassman, 75 Ohio App. 47, 50, 60 N.E.2d 716 (1st Dist.1944); State v. Wyche, 1st Dist.

Hamilton No. C-160678, 2017-Ohio-7041, ¶ 11. Accordingly, we reject the waiver

argument and address the issue of subject-matter jurisdiction on the merits.

       {¶12} Ohio’s relevant statute on jurisdiction provides that “[t]he plaintiff in

actions for divorce and annulment shall have been a resident of the state at least six




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months immediately before filing the complaint.” R.C. 3105.03. The statute must be

applied strictly. Barth v. Barth, 113 Ohio St.3d 27, 2007-Ohio-973, 862 N.E.2d 496, ¶ 11.

         {¶13} As used in R.C. 3105.03, “resident” means “ ‘one who possesses a

domiciliary residence, a residence accompanied by an intention to make the state of Ohio

a permanent home.’ ” (Emphasis omitted.) Barth at ¶ 12, citing Coleman v. Coleman, 32

Ohio St.2d 155, 162, 291 N.E.2d 530 (1972); Glassman, 75 Ohio App. at 51, 60 N.E.2d 716.

         {¶14} Courts routinely hold that “domiciliary residence” has two components:

“(1) an actual residence in the jurisdiction, and (2) an intention to make the state of

jurisdiction a permanent home.” (Citations omitted.) Hager v. Hager, 79 Ohio App.3d

239, 244, 607 N.E.2d 63 (2d Dist.1992), cited in Freels v. Powers-Freels, 2d Dist. Clark

No. 2015-CA-9, 2015-Ohio-3915, ¶ 7, and Rijo, 1st Dist. Hamilton No. C-930704, 1995 WL

35730.

         {¶15} Generally, actual residence means “an abode or place of dwelling.” Hager

at 244, citing Franklin v. Franklin, 5 Ohio App.3d 74, 449 N.E.2d 457 (7th Dist.1981).

Although an individual may have several residences at a given time, that individual can

have only one domiciliary residence. Id., cited in Freels at ¶ 8.

         {¶16} James argues that the evidence does not support the trial court’s

determination that Audrey satisfied either component of domiciliary residence. He argues

she never had an “actual residence” in the state because the Ohio home she lived in

belonged to her parents. He further contends that she failed the second component

because the evidence shows she intended to make Tennessee and then Florida her

permanent home.

         {¶17} The trial court, when determining the issue of Audrey’s domiciliary

residence, properly considered that Audrey was married to a member of the United States




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                        OHIO FIRST DISTRICT COURT OF APPEALS



Armed Forces. With respect to service members and their spouses, the jurisdiction where

each was domiciled before a move pursuant to military orders remains each individual’s

domiciliary home, unless a new domicile is voluntarily selected. See Heiney v. Heiney, 157

Ohio App.3d 775, 777, 813 N.E.2d 738 (6th Dist.2004), cited in Holtz v. Holtz, 2d Dist.

Greene No. 2005-CA-43, 2006-Ohio-1812, ¶ 20; Glassman, 75 Ohio App. at 54, 60 N.E.2d

716; Freels at ¶ 11; Dobson v. Dobson, 5th Dist. Stark No. 97CA0217, 1998 WL 519255

(May 18, 1998). The physical location of these individuals is not the result of their own

volition. Thus, the domiciliary analysis with respect to service members and their spouses

“is simply a question of intent.” Holtz at ¶ 20, cited in Freels at ¶ 19.

        {¶18} Here, the facts show that Audrey was domiciled in Ohio at the time she was

required to leave the jurisdiction due to James’s military orders. It is undisputed that she

had resided in her parents’ Ohio home until her departure in August 2013. James’s

contention that she needed a legal interest in real property at that time to establish an

“actual residence” is not supported by any authority and is unfounded. Her parents’ home

qualified as her abode or place of dwelling in the state before she married and left the state

due to James’s military orders.

        {¶19} James’s contention that Audrey did not meet the second requirement of

domiciliary residence at the time she filed the complaint is also unfounded.

He fails to recognize that Audrey’s domicile in Ohio was not lost until she acquired a new

one. Holtz at ¶ 18, citing E. Cleveland v. Landingham, 97 Ohio App.3d 385, 390, 646

N.E.2d 897 (8th Dist.1994).       “A person abandons [her] old domicile and acquires a new

one only when [she] chooses a new domicile, establishes an actual residence in the chosen

domicile, and demonstrates a clear intent that the new domicile become [her] primary and

permanent residence.” Id.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20} The trial court determined based on the evidence presented that Audrey at

all times had intended for Ohio to be her permanent home and had never changed her

domicile. After noting that all of her moves out of Ohio were precipitated by military

orders, the court stated:

       [Audrey] points to many factors to show her intent to maintain Ohio as her

       domicile, namely renewing her Ohio driver’s license before moving to

       Tennessee and maintaining her Ohio nursing license.             Subsequent to

       [James] receiving military orders to Tennessee, [Audrey] still chose Ohio as

       her home state for her nursing license. [Audrey] testified that she always

       planned to move back to Ohio after [James’s] military career was

       completed. [Audrey] also maintained a bedroom at her parents’ house in

       Anderson Township and lived there while [James] was training in Rhode

       Island.

       {¶21} The trial court also noted the lack of objective evidence demonstrating

Audrey’s intent to change her permanent residence. The court noted that “the parties

never purchased a home or sent out change of address cards. [Audrey] never registered

her car, registered to vote, or obtained a driver’s license in any state other than Ohio.”

       {¶22} James relies primarily upon the Barth case to support his argument that

Audrey had changed her domiciliary residence to Tennessee and Florida. In that case, the

Ohio Supreme Court determined that Ohio lacked jurisdiction over the appellant wife’s

complaint for divorce, even though her husband may have fraudulently enticed her to

move to California, because the evidence showed she had abandoned Ohio when she

moved to California. The Barth court found dispositive the “undisputed facts” that before

learning of her husband’s extramarital activities, the family had moved to California and




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                       OHIO FIRST DISTRICT COURT OF APPEALS



was planning to remain in California. (Emphasis added.) Barth, 113 Ohio St.3d 27, 2007-

Ohio-973, 862 N.E.2d 496, at ¶ 13. Unlike the plaintiff in Barth, Audrey testified the

family never planned to remain in Tennessee or Florida and had intended to return to

Ohio at the conclusion of James’s military obligation. Her testimony with respect to her

intent was amply corroborated by her actions.

       {¶23} James suggests that Audrey’s actions such as renting apartments in

Tennessee and Florida, changing her mailing address for bank statements, and selecting a

state for filing taxes, required a determination that she had clearly intended to establish a

domiciliary residence outside of Ohio. James, however, failed to comply with his duty to

present his argument with citation to record. See App.R. 16(A)(7). Further, as discussed

above, these actions must be viewed in context—the military family’s moves were not

voluntary, rather they moved pursuant to military orders. Because of this, the referred to

actions are not determinative of Audrey’s true intent to retain or replace Ohio as a

domiciliary residence. See Freels, 2d Dist. Clark No. 2015-CA-9, 2015-Ohio-3915, at ¶ 12;

Holtz, 2d Dist. Greene No. 2005-CA-43, 2006-Ohio-1812, at ¶ 20, (“[a] military person’s

designation of a state other than Ohio as his or her domiciliary residence on a military

form required for tax purposes is not determinative of that person’s true intent to make or

keep Ohio as his or her domiciliary residence.”).

       {¶24} Consequently, we conclude that Audrey was a resident of Ohio for purposes

of R.C. 3105.03 when she filed her complaint for divorce, even though she was not

physically present in the state for the full six-month period before filing, because she never

voluntarily changed her domicile, and therefore, it remained Ohio while she was living

with James in Tennessee and Florida pursuant to his military orders. The domestic

relations court had subject-matter jurisdiction over the divorce complaint, and the trial




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                          OHIO FIRST DISTRICT COURT OF APPEALS



court properly denied the motion to dismiss.            Accordingly, we overrule the first

assignment of error.

        {¶25} In his third assignment of error, which we address next, James argues the

trial court erred by not continuing or staying the August 30, 2016 hearing on his motion to

dismiss for lack of subject-matter jurisdiction based on the provisions of SCRA. He

contends the error was not just prejudicial to him, but also contradicts “every notion and

ideology [on] which the courts were founded.” Audrey argues that James waived this issue

because he failed to object to the magistrate’s decision on this basis and plain error does

not exist in this case.

        {¶26} Generally, a party’s failure to object to a magistrate’s finding of fact or

conclusion of law waives the party’s right to raise all but plain error with respect to that

issue on appeal. See Civ.R. 53(D)(3)(b). Here, James failed to file an objection to the

magistrate’s denial of his motions to stay and continue and, importantly, he also failed to

present the argument to the trial court at a time when the alleged error could have been

avoided or corrected.

        {¶27} For instance, our record does not demonstrate that James had asked the

trial court to remand the cause for a new hearing in the event it sustained Audrey’s

objections. In light of these facts, we conclude that James has waived all but plain error

related to the denial of his motion for a stay or a continuance of the hearing on subject-

matter jurisdiction. See Lesinski v. Henderson, 112 Ohio App.3d 70, 75, 677 N.E.2d 1239

(1st Dist.1996), quoting LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d 121, 123,

512 N.E.2d 640 (1987) (“ ‘An appellate court will not consider any error which a party

complaining of a trial court’s judgment could have called but did not call to the trial court’s




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attention at a time when such error could have been avoided or corrected by the trial

court.’ ”); Holtz, 2d Dist. Greene No. 2005-CA-43, 2006-Ohio-1812, at ¶ 11.

        {¶28} The plain-error doctrine may be applied in appeals of civil cases “only in

the extremely rare case involving exceptional circumstances where error, to which no

objection was made at the trial court, seriously affects the basic fairness, integrity, or

public reputation of the judicial process, thereby challenging the legitimacy of the

underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d

1099 (1997), syllabus. Even if we construe James’s appellate argument as sufficiently

raising a claim of “plain error,” he cannot satisfy the high showing needed to establish

plain error.

        {¶29} James’s claim fails because our record does not contain the evidence he

now relies upon to show error in the denial of his motions. Specifically, James argues he

was entitled to a stay or continuance because his commanding officer, in compliance with

the requirements of SCRA1 for an automatic stay, had indicated that James was

unavailable. But the letter James references in support of his argument is not found in the




1 50 U.S.C. 3932 provides:
(a) Applicability of section
This section applies to any civil action or proceeding, including any child custody proceeding, in
which the plaintiff or defendant at the time of filing an application under this section--
  (1) is in military service or is within 90 days after termination of or release from military service;
and
  (2) has received notice of the action or proceeding.
(b) Stay of proceedings
  (1) Authority for stay
At any stage before final judgment in a civil action or proceeding in which a servicemember
described in subsection (a) is a party, the court may on its own motion and shall, upon application
by the servicemember, stay the action for a period of not less than 90 days, if the conditions in
paragraph (2) are met.
  (2) Conditions for stay
An application for a stay under paragraph (1) shall include the following:
     (A) A letter or other communication setting forth facts stating the manner in which current
military duty requirements materially affect the servicemember’s ability to appear and stating a
date when the servicemember will be available to appear.
      (B) A letter or other communication from the servicemember’s commanding officer stating
that the servicemember’s current military duty prevents appearance and that military leave is not
authorized for the servicemember at the time of the letter.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



trial court’s record for our review; it is merely attached to James’s appellate brief. As such,

we cannot consider it. See App.R. 9(A)(1).

       {¶30} Further, the magistrate offered James the opportunity to reopen the

jurisdictional issue at the hearing on custody and property issues. James chose to settle

the case instead. Because James cannot demonstrate any error, much less plain error, we

overrule the third assignment of error.

       {¶31} In his second assignment of error, James argues the trial court abused its

discretion by adopting the parties’ agreement allocating parental rights and

responsibilities because the record demonstrates that James had entered into the

agreement under duress.

       {¶32} The parties’ decision to partially end the divorce proceedings and agree to

terms allocating parental rights and responsibilities resulted in a binding contract that one

party may not unilaterally repudiate. See Walther v. Walther, 102 Ohio App.3d 378, 382,

657 N.E.2d 332 (1st Dist.1995). The domestic relations court’s authority to enforce and

adopt such an in-court settlement agreement is discretionary. See id. at 383. Generally, if

the court is satisfied that the settlement agreement reached by the parties was not

procured by fraud, duress, overreaching, or undue influence, the court may adopt the

settlement agreement as its judgment. Id., cited in Federle v. Federle, 1st Dist. Hamilton

No. C-180171, 2019-Ohio-2565, ¶ 7.

       {¶33} In support of his claim that he was operating under duress when he

entered into the agreement, James cites Gabel v. Gabel, 3d Dist. Marion No. 9-04-13,

2004-Ohio-4292. In Gabel, a former spouse argued that an in-court custody agreement

was the product of duress and therefore not enforceable. The Gabel court held that to

establish duress, a party must show “ ‘(1) that one side involuntarily accepted the terms of




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                       OHIO FIRST DISTRICT COURT OF APPEALS



another; (2) that circumstances permitted no other alternative; and (3) that said

circumstances were the result of coercive acts of the opposite party.’ ” (Emphasis omitted.)

Id. at ¶ 19, citing Blodgett v. Blodgett, 49 Ohio St.3d 243, 246, 551 N.E.2d 1249 (1990).

        {¶34} Here, the record does not demonstrate that James had involuntarily

accepted the offer. When entering the agreement on the record, the court made a number

of inquiries to the parties, including if they had had the opportunity to discuss the

agreement with counsel and if they understood the agreement. James responded in the

affirmative and signed the agreed entry. At no point did he move to set aside the agreed

entry in the trial court on the basis of duress. Further, the record shows that James ended

the custody-and-property trial only after he had provided testimony that was very

unfavorable to his position. Thus, absent from the record are facts demonstrating James’s

unsupported claim that the coercive acts of Audrey forced him to consent to the terms

adopted by the court.      With respect to duress, “[i]t is not enough to show that one

assented merely because of difficult circumstances that are not the fault of the other

party.” Blodgett at syllabus, cited in Gabel at ¶ 19.

        {¶35} Because the record does not support James’s claim that the trial court

abused its discretion by adopting the parties’ agreement on parental rights and

responsibilities as it judgment, we overrule the second assignment of error.

        {¶36} In his fourth assignment of error, James challenges the award of attorney

fees to Audrey on the ground that the trial court failed to consider or improperly applied

the factors set forth in R.C. 3105.18(H). According to James, these factors include his

ability to pay and whether the party seeking fees needs them to fully litigate his or her

rights and protect his or her interests.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



        {¶37} This argument is not tenable. R.C. 3105.18(H) was part of the Revised Code

section on spousal support and does not exist as of 2005. The relevant statute for an

award of attorney fees and litigation expenses in a divorce action is R.C. 3105.73(A).

Unlike former R.C. 3105.18(H), R.C. 3105.73(A) does not explicitly require the trial court

to consider the parties’ ability to pay attorney fees or the requesting party’s ability to

litigate his or her rights fully. Instead, it provides:

        In an action for divorce * * *, 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.

R.C. 3105.73(A).

        {¶38} Thus R.C. 3105.73(A) authorizes the court in a divorce action to award

reasonable attorney fees to a party if the court finds the award “equitable” after

considering the relevant factors, including the conduct of the parties, and other facts

relevant to an equitable award. We review the trial court’s award of fees under an abuse-

of-discretion standard. See Patterson v. Patterson, 2011-Ohio-5644, 966 N.E.2d 898, ¶ 7

(1st Dist.); Kane v. Hardin, 1st Dist. Hamilton No. C-180525, 2019-Ohio-4362, ¶ 31; Cwik

v. Cwik, 1st Dist. Hamilton No. C-090843, 2011-Ohio-463, ¶ 102.

        {¶39} The trial court adopted the magistrate’s findings on the issue of fees and

ordered James to pay $30,000 toward Audrey’s fees of over $40,000. The magistrate had

determined that a major portion of Audrey’s fees in the divorce action were made

necessary by James’s “egregious behavior” during the pendency of the matter. The




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                       OHIO FIRST DISTRICT COURT OF APPEALS



magistrate cited to James’s improper Florida petition and his failure to respond to orders

of the court. The magistrate also found relevant that Audrey had paid for her litigation

expenses while James relied on the “largesse” of his family to subsidize all of his litigation

expenses.

       {¶40} These findings are amply supported by the law and the evidence in the

record. Thus, we conclude that the trial court’s award of $30,000 in attorney fees to

Audrey was equitable and not an abuse of discretion. Accordingly, we overrule the fourth

assignment of error.

                                       Conclusion

       {¶41} James has failed to demonstrate that the trial court erred by denying his

motion to dismiss the divorce action for lack of subject-matter jurisdiction, adopting the

parties’ agreement on parental rights and responsibilities, and ordering him to pay some

of Audrey’s attorney fees. Therefore, the trial court’s judgment is affirmed.

                                                                         Judgment affirmed.

MOCK, P.J., and CROUSE, J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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