[Cite as Baker-Chaney v. Chaney, 2017-Ohio-5548.]


                                      COURT OF APPEALS
                                    HOLMES COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

REBECCA L. BAKER-CHANEY                                JUDGES:
NKA HILL                                               Hon. Patricia A. Delaney, P.J.
                                                       Hon. William B. Hoffman, J.
        First Petitioner-Appellant                     Hon. John W. Wise, J.

-vs-                                                   Case No. 16CA005

JOSEPH B. CHANEY
                                                       OPINION
        Second Petitioner-Appellee




CHARACTER OF PROCEEDING:                            Appeal from the Holmes County Court of
                                                    Common Pleas, Domestic Relations
                                                    Division, Case No. 13DS103


JUDGMENT:                                           Affirmed in part, Reversed in part and
                                                    Remanded

DATE OF JUDGMENT ENTRY:                             June 26, 2017

APPEARANCES:

For First Petitioner-Appellant                      For Second Petitioner-Appellee

SCOTT N. FRIEDMAN                                   RACHEL E. HOFFEE
HEATHER R. GALL                                     132 E. Liberty Street
Friedman & Mirman Co., LPA                          Wooster, Ohio 44691
1320 Dublin Road, Suite 101
Columbus, Ohio 43215-1188

Guardian Ad Litem

KARIN WIEST
107 W. Liberty Street
Wooster, Ohio 44691
Holmes County, Case No. 16CA005                                                         2

Hoffman, J.



        {¶1}   First petitioner-appellant Rebecca L. Baker-Chaney, nka Rebecca L. Hill,

(“Mother”) appeals the June 10, 2016 Judgment Entry entered by the Holmes County

Court of Common Pleas, Domestic Relations Division, which approved, adopted, and

incorporated the Findings of Fact and Conclusions of Law filed by Second petitioner-

appellee Joseph B. Chaney (“Father”); terminated the parties’ January 24, 2014 Shared

Parenting Plan; and named Father as the sole residential custodian of the parties’ minor

children.

                           STATEMENT OF THE CASE AND FACTS

        {¶2}   The parties were married on May 25, 2004, in Jamaica. Two daughters

were born as issue of said union, to wit: N.C. (DOB 8/24/2005) and A.C. (DOB 9/15/2006).

The parties separated in early 2013. The parties’ marriage was terminated pursuant to a

decree of dissolution with a shared parenting plan filed January 24, 2014. The shared

parenting plan provided for the parties to have equal parenting time with the children on

alternating weeks.

        {¶3}   After Father moved out of the marital residence in May, 2013, the children

had week on/week off visitation with each parent. Father lives in a walk-out basement

apartment in his mother’s home. Mother remained in the marital residence in Killbuck,

Ohio.

        {¶4}   Mother began dating Adam Hill after the parties separated, but before the

dissolution of the marriage. Mother’s relationship with Hill became more serious following

the dissolution and Mother decided to move to New Albany, Ohio, where Hill resides.
Holmes County, Case No. 16CA005                                                          3


Through an email, Mother asked Father for permission to move the children with her to

New Albany. Father refused. Mother filed a motion to modify the shared parenting plan

on June 25, 2014, requesting the trial court name her the sole custodial parent and give

her permission to relocate with the minor children to New Albany, Ohio. In response,

Father filed a motion to modify the shared parenting plan, or in the alternative, motion to

terminate the shared parenting plan.

      {¶5}   The trial court commenced a hearing on the motions on October 15, 2015.

The following evidence was adduced at the hearing.

      {¶6}   Mother was the primary caretaker of the children from their births until the

parties separated in 2013. Following the separation, the children spent 50% of their time

with Mother and 50% of their time with Father on a week on/week off schedule. Father’s

mother assists with the children when he is working or otherwise unable to do so.

      {¶7}   On January 24, 2014, the same day as the final dissolution hearing, Mother

obtained a civil protection order against Father, with his consent. Mother requested the

CPO following an incident during which Father trapped her in a bathroom and allegedly

kicked her. The children were in the home when this occurred. Father testified he had

never physically stuck Mother during an argument about the children. Transcript of

October 15, 2015 Hearing at 121. Mother stated she did not have any concerns about

Father being violent with the children and Father had not been violent towards her since

the divorce. Id. at 73. The children had not expressed any fear of Father. Id. at 56.

      {¶8}   Mother and Father communicate effectively regarding decisions involving

the children although Mother testified she has difficulty communicating with Father.

Father accommodates any changes Mother needs in the visitation schedule.
Holmes County, Case No. 16CA005                                                           4


       {¶9}   For a period of time around 2007, Father considered himself addicted to

prescription pain medications. Transcript of December 1, 2015 Hearing at 77-79. Father

sought admittance, on his own, to a Suboxone Clinic in Holmes County. Id. at 70. Father

has not had any issues with abusing prescription medication since 2007. Id. at 78-79.

Father has never had a positive drug screen during the four years he has worked for his

employer. Id. at 78. Father’s physician is aware of his past prescription drug use and

monitors his current prescription drug use. Id. at 77.

       {¶10} Dr. Marianne Bowden testified she completed psychological evaluations of

the parties upon the request of the trial court. Oct. 15, 2015 Tr. at 21, 44. Dr. Bowden

stated she never specifically asked Father if he had completed the treatment program at

the Suboxone Clinic, explaining she did not recall being concerned about whether he had

done so. Id. at 47. Dr. Bowden expressed her belief Father was open and honest with her

about his past prescription drug use. Id. at 54. Dr. Bowden added she did not get the

impression from the parties or the children Father was currently abusing drugs. Id. at 55.

Dr. Bowden noted, when drawing her conclusions and making recommendations, she

places more weight upon the results of an individual’s psychological testing than on the

background information provided by that individual. Id. at 37. The results of Father’s

psychological tests did not give Dr. Bowden any indication he was addicted to drugs. Id.

at 55. Dr. Bowden did not recommend addiction counseling for Father even after she

learned he was currently prescribed and taking opiates. Id. at 45.

       {¶11} Based upon the individual testing, Dr. Bowden found both parents function

fairly well and neither has any mental illness, personality dysfunction, or psychopathology.

In her evaluation, Dr. Bowden recommended the children remain with Father as such
Holmes County, Case No. 16CA005                                                         5


would involve the least amount of change. Dr. Bowden explained the older child revealed

considerable sadness and anger with Mother. Dr. Bowden noted requiring the child to

live with Mother on a full-time basis was not currently in her best interest. Dr. Bowden

recommended the children reengage in individual counseling.

       {¶12} Dr. Dwight McFadden III, the head of the Holmes County Suboxone Clinic,

provided general testimony about opioids and opiate addiction. Id. at 141. Dr. McFadden

stated he had not met anyone who had once been addicted to a substance, subsequently

be able to use the substance without falling back into the addiction. Id. at 149. Dr.

McFadden indicated an individual would need “some very strong support” to avoid a

setback if the individual needed to subsequently take prescription pain medication. Id.

He added he hoped anyone who successfully completed the Suboxone program would

continue counseling. Id.

       {¶13} In her report, Attorney Karen Wiest, the guardian ad litem, noted Father

admitted a past history of opiate addiction and, during his deposition, his current use of

prescription pain medication. Attorney Wiest expressed her concern with Father’s current

use of pain killers, but added there was no evidence he currently has a substance abuse

problem. She did not recommend addiction or any other type of counseling for Father.

Attorney Wiest did, however, express worry about Father’s ability to handle stressful

situations.

       {¶14} Attorney Wiest stated the children had different outlooks on the situation.

The older child was very adamant about not wanting to move with Mother. She did not

feel confident she would see Father on a regular basis if she moved with Mother. The

younger child did not express an opinion one way or another as to with whom she wanted
Holmes County, Case No. 16CA005                                                            6


to live. She was confident she would see both parents on a regular basis no matter where

she lived.

       {¶15} Attorney Wiest recommended the trial court consider allowing the children

to move to New Albany with Mother “as long as there is a schedule giving both parents

substantial time with the girls”.   The guardian acknowledged the instant situation was a

difficult case and a close case, but believed the children were well adjusted and would be

fine with either outcome. She also recommended the children begin counseling again.

At the end of the second day of the hearing, Attorney Wiest was asked if any information

she learned during the hearing changed the recommendations set forth in her report. She

responded, “No.” 12/1/12 Tr. at 92.

       {¶16} At the conclusion of the first day of the hearing, October 15, 2015, the trial

court issued an interim order, designating Father as the temporary residential parent of

the children and awarding visitation to Mother pursuant to Holmes County Local Rules.

Mother filed a motion for emergency custody and parenting time on November 6, 2015.

Mother attached the affidavit of Attorney Wiest in support of her motion. In her affidavit,

Attorney Wiest stated the trial court’s temporary orders were not in the children’s best

interest. The trial court denied Mother’s motion. On the second day of the hearing,

Attorney Wiest testified she did not visit the parties or the children between October 15,

2015, and the date of the filing of Mother’s emergency motion. Id. at 100. Attorney Wiest

further stated she had not visited the parties or the children, or spoken with the children’s

counselors or teachers between October 15, 2015, and December 1, 2015.

       {¶17} Danielle Prohaska provided a comparative school analysis between the

New Albany School District and the West Holmes School District. 10/15/15 Tr. at 6. Her
Holmes County, Case No. 16CA005                                                         7


report established the New Albany School District received a higher achievement number

(100%) than the West Holmes School District (87.5%). Id. at 10. However, Prohaska

acknowledged a student attending the West Holmes School District was not necessarily

at a disadvantage. Id. at 11.

         {¶18} The trial court granted the parties leave to submit post hearing arguments,

proposed Findings of Fact and Conclusions of Law, and proposed Final Judgment

Entries. Following the conclusion of the hearing on December 1, 2015, the trial court

issued a Journal Entry ordering Mother to pay Father’s attorney fees in the amount of

$13,754.12, by December 15, 2015. Mother complied with the order, and paid Father’s

attorney fees on December 15, 2015.

         {¶19} Via Judgment Entry filed June 10, 2016, the trial court approved, adopted,

and incorporated Father’s proposed Findings of Fact and Conclusions of Law as order of

the court. The trial court determined a change of circumstances had occurred and

concluded terminating the Shared Parenting Plan was in the best interest of the children.

The trial court designated Father as the residential parent, and awarded Mother standard

visitation.

         {¶20} It is from that entry Mother appeals, raising the following assignments of

error:

         “I. THE COURT ERRED AND ABUSED ITS DISCRETION BY

         UNREASONABLY, ARBITRARILY, AND UNCONSCIONABLY FAILING

         TO CONSIDER THE STATUTORY FACTORS REGARDING THE

         CHILDREN’S BEST INTEREST AND ENTERING AN ORDER THAT WAS
Holmes County, Case No. 16CA005                                                           8


       NOT SUPPORTED BY A SUBSTANTIAL AMOUNT OF COMPETENT,

       CREDIBLE EVIDENCE.

       “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

       PREJUDGING THE CASE AND ISSUING TEMPORARY ORDERS

       DURING THE POST DECREE TRIAL.

       “III. THE COURT ERRED, ABUSED ITS DISCRETION, AND VIOLATED

       REBBIE’S DUE PROCESS RIGHTS IN FAILING TO ALLOW REBBIE TO

       PRESENT ALL OF HER EVIDENCE AT TRIAL.

       “IV. THE COURT ERRED AND ABUSED ITS DISCRETION IN ORDERING

       REBBIE TO PAY BRAD’S ATTORNEY FEES.”

                                                 I

       {¶21} In her first assignment of error, Mother maintains the trial court erred and

abused its discretion by failing to consider the statutory best interest factors and issuing

an order which was not supported by a substantial amount of competent, credible

evidence. Mother submits the trial court’s failure to consider the statutory factors was

unreasonable, arbitrary, and unconscionable.

       {¶22} On appeal, our standard of review in assessing the disposition of child

custody matters is that of abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71,

73–74. In order to find an abuse of that discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.

Furthermore, as an appellate court reviewing evidence in custody matters, we do not

function as fact finders; we neither weigh the evidence nor judge the credibility of
Holmes County, Case No. 16CA005                                                           9


witnesses. Our role is to determine whether there is relevant, competent and credible

evidence upon which the fact finder could base his or her judgment. See Dinger v. Dinger,

5th Dist. Stark No.2001CA00039, 2001–Ohio–1386. Because custody issues are some

of the most difficult and agonizing decisions a trial judge must make, he or she must have

wide latitude in considering all the evidence. Davis v. Flickinger (1997), 77 Ohio St.3d

415, 418, 674 N.E.2d 1159.

       {¶23} In addressing a motion for the termination or modification of a shared

parenting plan where the parents have ceased to mutually agree, a trial court must

determine (1) whether a change in circumstances has occurred, (2) whether termination

or modification is in the children's best interests, and (3) whether the advantage to the

child resulting from the termination or modification outweighs any potential harm. See

Ford v. Ford, 5th Dist. Tuscarawas No.2012 AP 03 0025, 2012–Ohio–5454, ¶ 13.

       {¶24} R.C. 3109.04(F) states, in determining the best interest of a child, “the court

shall consider all relevant factors, including but not limited to”:

              (a) The wishes of the child's parents regarding the child's care;

              (b) If the court has interviewed the child in chambers pursuant to

       division (B) of this section regarding the child's wishes and concerns as to

       the allocation of parental rights and responsibilities concerning the child, the

       wishes and concerns of the child, as expressed to the court;

              (c) The child's interaction and interrelationship with the child's

       parents, siblings, and any other person who may significantly affect the

       child's best interest;
Holmes County, Case No. 16CA005                                                           10


              (d) The child's adjustment to the child's home, school, and

       community;

              (e) The mental and physical health of all persons involved in the

       situation;

              (f) The parent more likely to honor and facilitate court-approved

       parenting time rights or visitation and companionship rights * * *



       {¶25} “No one factor is dispositive.” Carr v. Carr, 12th Dist. Warren Nos. CA2015–

02–015 and CA2015–03–020, 2016–Ohio–6986, ¶ 22. Rather, the trial court has

discretion to weigh any and all relevant factors as it sees fit. Id.   The trial court is not

required to separately address each best interest factor enumerated in R.C. 3109.04. See

In re Henthorn, Belmont App. No. 00–BA–37, 2001–Ohio–3459. Further, absent a Civ.R.

52 motion, a trial court need not make specific findings correlating to R.C. 3109.04(F) in

the judgment entry. See Harp v. Harp (Apr. 16, 1990), Clermont App. No. CA 89–08–075.

We presume the regularity of the trial court proceedings unless the record demonstrates

otherwise. State v. Phillips (1995), 74 Ohio St.3d 72, 92, 656 N.E.2d 643. In other words,

this Court will presume the trial court considered the R.C. 3109.04(F) factors, unless there

is reason to believe the trial court did not consider those factors. See Bird v. Bird (Feb.

19, 1985), Stark App. No. CA 6423.

       {¶26} The focus of Mother’s argument is the trial court’s negative perception of

her. Mother points to the trial court’s statement in the June 10, 2016 Judgment Entry,

“SELFISH is what ultimately is determinative in this case”, as “a prime example of the

court’s unreasonable, arbitrary, and unconscionable attitude in this case.”         Brief of
Holmes County, Case No. 16CA005                                                        11


Appellant at 13. Mother concludes, based upon similar statements in the trial court’s

orders and remarks at trial, “the ONLY thing the court considered in this matter was [her]

remarriage to a man of perceived financial means and a move to a more affluent

community than Holmes County.” Id. Mother asserts the trial court took offense and, as

a result, awarded full custody of the children to Father, “an admitted prescription drug

addict who is currently using the very drugs he had abused in the past.” Id. Mother adds

the trial court “used the custody and parenting time orders to punish [her] for her

remarriage and move to New Albany.” Id.

      {¶27} While we do not necessarily agree or approve of the trial court’s language

or perceived attitude toward Mother, we do find there is relevant, competent and credible

evidence in the record upon which the trial court could base its decision.

      {¶28} Dr. Bowden and Attorney Wiest both testified they had seen no evidence

Father was currently abusing prescription pain medication. Neither Dr. Bowden nor

Attorney Wiest recommended addiction counseling for Father at any time during the

proceedings. Both indicated the older child was very adamant about not wanting to move

with Mother as she did not feel confident she would see Father on a regular basis if she

did. The younger child did not express an opinion one way or another as to with whom

she wanted to live. Dr. Bowden recommended the children remain with Father as such

would involve the least amount of change. Attorney Wiest suggested the trial court

consider allowing the children to live with Mother “as long as there is a schedule giving

both parents substantial time with the girls”.   The guardian acknowledged the instant

situation was a difficult case and a close case, but believed the children to be well
Holmes County, Case No. 16CA005                                                                          12


adjusted and would be fine with either outcome. Both Dr. Bowden and Attorney Wiest

recommended the children engage in counseling with parent participation.

        {¶29} Father currently lives in the walk-out basement apartment in his mother’s

home. His mother assists him with the children when he is unable to do so due to his

work schedule. After the trial court awarded Father temporary custody of the children

following the first day of the hearing, Father re-engaged the children in counseling. Father

is involved in the children’s extracurricular activities.

        {¶30} The testimony revealed both Mother and Father are good parents and

appropriate with the children. Their parenting abilities are equal. The children love

Mother and Father equally. The children are bonded with their extended family, many of

whom live in Holmes County.

        {¶31} It is axiomatic in proceedings involving the custody and welfare of children,

the power of the trial court to exercise discretion is particularly important. See Thompson

v. Thompson (1987), 31 Ohio App.3d 254, 258, 511 N.E.2d 412, citing Trickey v. Trickey

(1952), 158 Ohio St. 9, 13, 106 N.E.2d 772. Under the present circumstances, we find

the record does not affirmatively demonstrate the trial court failed to consider the statutory

“best interest” factors, and its decision did not constitute an abuse of discretion.

        {¶32} Based upon the foregoing, we find the trial court’s order was supported by

a substantial amount of competent, credible evidence. 1

        {¶33} Mother’s first assignment of error is overruled.




1 Likewise, we would have found no abuse of discretion if the trial court had awarded custody of the children
to Mother.
Holmes County, Case No. 16CA005                                                           13


                                                 II

       {¶34} In her second assignment of error, Mother argues the trial court erred and

abused its discretion in issuing temporary orders during the post-decree trial. Specifically,

Mother claims the trial court prejudged the case and issued the temporary orders to

“punish” her for relocating.

       {¶35} A temporary order allocating custody between parents is not a final

judgment, but rather is an interlocutory order. See, e.g., State ex rel. Thompson v. Spon

(1998), 83 Ohio St.3d 551, 554, 700 N.E.2d 1281; State ex rel. Wallacy v. Smith (1997),

78 Ohio St.3d 47, 50–51, 676 N.E.2d 109; In re Devlin (1992), 78 Ohio App.3d 543, 605

N.E.2d 467. “In a domestic relations action, interlocutory orders are merged within the

final decree, and the right to enforce such interlocutory orders does not extend beyond

the decree, unless they have been reduced to a separate judgment or they have been

considered by the trial court and specifically referred to within the decree.” Colom v.

Colom (1979), 58 Ohio St.2d 245, 389 N.E.2d 856. Thus, the court's final order

supercedes the temporary orders and corrects any error. Smith v. Quigg, Fairfield App.

No.2005–CA–01, 2006–Ohio–1494, at ¶ 36; see, also, Eichenberger v. Eichenberger

(Oct. 29, 1998), Franklin App. No. 97APF12–1599; Wyss v. Wyss (1982), 3 Ohio App.3d

412, 413, 445 N.E.2d 1153. Because the temporary order merged into the final judgment,

any possible error contained therein is now moot. See, Bowker v. Bowker, Delaware App.

No. 10CAF110085, 2011–Ohio–4524 at ¶ 44, citing, Ruby v. Ruby (Aug. 11, 1999),

Coshocton App. No. 99–CA–4 (“Temporary orders are merged into the final decree of

divorce, and cannot now be claimed as error.”).

       {¶36} Mother’s second assignment of error is overruled.
Holmes County, Case No. 16CA005                                                           14


                                                 III

       {¶37} In her third assignment of error, Mother contends the trial court erred,

abused its discretion, and violated her due process rights by failing to allow her to present

all of her evidence at trial. Specifically, Mother takes issue with the trial court’s denying

her the right to inspect Father’s medical records as well as the trial court’s preventing her

from calling a rebuttal witness.

       {¶38} Generally, the admission or exclusion of relevant evidence is within the

sound discretion of the trial court and its decision to admit or exclude such evidence will

not be disturbed absent an abuse of discretion. State v. Awkal (1996), 76 Ohio St.3d 324,

333, 667 N.E.2d 960.

       {¶39} On April 9, 2015, Mother filed a motion to compel discovery based upon

Father’s refusal to sign six release of information consent forms directed to Father’s

health care providers which sought Father’s complete medical records from 2005, through

present. Father filed a response requesting the trial court deny Mother’s motion or, in the

alternative, conduct an in camera review of the documents to determine, which, if any,

where relevant to the matter at hand. Via Journal Entry filed June 29, 2015, the trial court

found Mother’s motion to be overbroad and ordered an in camera inspection of Father’s

medical records from January 24, 2014, to the current date. On August 4, 2015, the trial

court issued a journal entry indicating it had received and reviewed the medical records,

and found such to be irrelevant.

       {¶40} We find Mother has failed to demonstrate how her due process rights were

violated or how she was prejudiced by the trial court’s in-camera inspection of Father’s

medical records. The trial court indicated it had reviewed the records and found such to
Holmes County, Case No. 16CA005                                                            15


be irrelevant. There is nothing in the record to suggest the trial court did not review the

records or withheld information supportive of its position. We have reviewed the sealed

medical records and agree with the trial court’s determination.

       {¶41} We further find the trial court did not abuse its discretion in limiting which

medical records it would review.       The parties entered into their shared parenting

agreement in January, 2014. Mother filed her motion to modify the shared parenting plan

a mere four months later. To determine the motion, the trial court did not need to delve

into evidence pre-dating the shared parenting plan.

       {¶42} With respect to the second ground upon which Mother’s predicates this

assignment of error, we also find Mother’s due process rights were not violated by the

trial court’s refusal to allow her to call a rebuttal witness. Mother sought to impeach Father

by calling a customer for whom Father had installed a satellite dish. During his cross-

examination, Father denied using his employment position to gain entry into a customer’s

home during the period between the first and second days of the hearing. The witness

allegedly would have testified Father asked to use the restroom and, thereafter, she found

prescription pain medication missing from her medicine cabinet.           Father was never

charged with any offense relative to this customer. The customer could not definitely say

Father took the medication. Because the probative value of this testimony is outweighed

by the danger of unfair prejudice, we find the trial court did not abuse its discretion by

excluding the testimony. Evid. R. 403(A).

       {¶43} Mother’s third assignment of error is overruled.
Holmes County, Case No. 16CA005                                                         16


                                                 IV

       {¶44} In her final assignment of error, Mother submits the trial court erred and

abused its discretion in ordering her to pay Father’s attorney fees.

       {¶45} R.C. 3105.73(B) allows the court to award “reasonable” attorney fees to

either party in any post-decree motion which arises out of the divorce, if the court finds

attorney fees are “equitable.” When deciding whether to award attorney fees, the court

may consider “the parties' income, the conduct of the parties, and any other relevant

factors the court deems appropriate, but it may not consider the parties' assets.”

       {¶46} An award of attorney fees related to a post-decree motion or proceeding will

not be overturned absent an abuse of discretion. Roubanes v. Roubanes, 10th Dist. No.

14AP-183, 2014-Ohio-5163, 2014 WL 6482785, ¶ 6. While the trial court has discretion

in determining the amount of attorney fees, the court must base its decision on evidence

showing the reasonableness of the time spent on the matter and the hourly rate. Bagnola

v. Bagnola, 5th Dist. Stark No.2004CA00151, 2004–Ohio–7286 at ¶ 36.

       {¶47} At the conclusion of the second day of the hearing, the trial court ordered

Mother to “pay as and for interim attorney’s fees of the amount reflected on [Father’s]

Exhibit D, thirteen thousand seven hundred fifty four dollars and twelve cents ($13754.12)

on or before December fifteenth (15th) that’s two weeks from today.” 12/1/15 Tr. at 104.

       {¶48} The following exchange occurred between Attorney Luke Brewer, counsel

for Mother, and the trial court:

              MR. BREWER:          * * * Your Honor I would like to request a hearing

       as I believe we are allowed under the Civil Rules if the attorney fees are

       granted. A hearing number one so that we can take testimony on that
Holmes County, Case No. 16CA005                                                                          17


        specific issue, and secondly so we can hear expert testimony to determine

        whether or not those fees are reasonable. So I would like to make that

        request in . . .

                THE COURT: I am going to overrule that for the record.

                MR. BREWER: Okay, umm I would also like to state that per the

        order we were required to submit an affidavit of income, uh by today’s date

        we do have that ready right now and we will file that by todays [sic] date.

        And I would ask that that be considered in determine whether or not uh

        number one.

                THE COURT: The affidavit of all household members?

                MR. BREWER: The affidavit has just of [Mother].

                THE COURT: Okay so I’ll considered the testimony that the other

        household members gave about their income, and their lifestyle and the

        things that they are able to provide and the fact that he was inaudible as a

        stay at home mom, all that testimony that I heard on October fifteenth (15th)

        I will have to rely on that. And that’s going to be the basis of my order.

        12/1/15 Tr. at 109.

        {¶49} Mother complied with the trial court’s order, and paid Father’s attorney fees

on December 15, 2015.2 We find Mother properly objected to the trial court's award of



2 Generally, we would find an assignment of error challenging a trial court’s order of attorney fees to be
moot if the party challenging the order had paid the attorney fees. However, given the trial court’s comment
instructing Wife to come with her toothbrush if she had not complied with the order within fourteen days as
she would be going to jail, renders the satisfaction of the order involuntary. Mother was denied the
opportunity to stay the attorney fee award pending appeal. Accordingly, she had little choice but to pay the
award pending appeal or risk being held in contempt and incarcerated by the trial court. Mother’s payment
to Father was not voluntary such as to cause a waiver of her right to appeal this issue. Janosek v. Jansosek,
8th Dist. Nos. 86771 and 86777, 2007-Ohio-68, para. 35.
Holmes County, Case No. 16CA005                                                         18


attorney fees without conducting a hearing to determine the reasonable value of the

award. The trial court simply refused to conduct a hearing. We find the record is devoid

of any evidence with which the trial court could have determined the requested attorney

fees were reasonable and necessary. The only evidence before the trial court was

Father’s Exhibit D, an affidavit of attorney fees signed by Father’s counsel. As such, we

find the trial court abused its discretion in awarding attorney fees without an evidentiary

hearing as requested by Mother as to the amount to be awarded.

      {¶50} Accordingly, we reverse and remand the matter to the trial court for further

proceedings on the issue of attorney fees.

      {¶51} Mother’s fourth assignment of error is sustained.

      {¶52} The judgment of the Holmes County Court of Common Pleas, Domestic

Relations Division, is affirmed, in part, reversed, in part, and remanded for further

proceedings consistent with the law and this Opinion.

By: Hoffman, J.

Delaney, P.J. and

Wise, John, J. concur




WBH:0620
