Hill v. French

2023 Ohio 3406

• Court: Ohio Court of Appeals
• Decided: September 25, 2023
• Docket: L-23-1085
• Status: Published

Opinion

[Cite as Hill v. French, 2023-Ohio-3406.]

COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT COUNTY OF LUCAS

JASON A. HILL, :

Plaintiff-Appellee, : No. L-23-1085

v. :

JANICE E. FRENCH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED RELEASED AND JOURNALIZED:

Civil Appeal from the Lucas County Court of Common Pleas Domestic Relations Division Case No. DR-12-0193

Appearances:

Jason A. Hill, pro se.

Michael R. Bassett, for appellant.

SEAN C. GALLAGHER, J.:

This appeal is before this court upon the accelerated calendar. See

App.R. 11.1; 6th Dist.Loc.App.R. 12. “The accelerated calendar is designed to

provide a means to eliminate delay and unnecessary expense in effecting a just decision on appeal and by the recognition that some cases do not require as

extensive or time consuming procedure as others.” App.R. 11.1(A). “The appeal will

be determined as provided by App.R. 11.1” and in accordance therewith, “[i]t shall

be sufficient compliance with App.R. 12(A) for the statement of the reason for the

court’s decision as to each error to be in brief and conclusionary form.”

App.R. 11.1(E).

Defendant-appellant Janice E. French (J.F.) and plaintiff-appellee

Jason A. Hill (J.H.) were divorced in 2014. Since then, the parties have been

involved in extensive post-divorce litigation, which has included multiple appeals

from the rulings of the trial court. In the latest appeal, J.F. appeals from the “Order

on Motions” decision of the trial court that was filed on March 7, 2023. In that

decision, the trial court ruled upon the limited issue of attorney fees that was

remanded by a prior appeal to this court in J.H. v. J.F., 6th Dist. Lucas No. L-20-

1077, 2021-Ohio-24, ¶ 61, 66. Additionally, the trial court ruled on various motions

that were pending before it. J.F. has raised five assignments of error for review.

Under her first assignment of error, J.F. challenges the trial court’s

decision to grant in part J.H.’s motion to modify conditions of parenting time and

to order that “[t]he minor children shall have no contact with maternal grandmother

until further order of the court.” J.F. claims the trial court’s decision was

unsupported by any competent, credible evidence and advances several arguments

against the trial court’s order. A trial court “enjoys broad discretion when setting parenting time and

determining the conditions under which parenting time will take place.” Cwik v.

Cwik, 1st Dist. Hamilton No. C-090843, 2011-Ohio-463, ¶ 42. We review the trial

court’s decision to modify the conditions of parenting time under an abuse-of-

discretion standard, as guided by the statutory best-interest factors set forth in

R.C. 3109.051(D). See id.; see also Wilfong v. Bush, 1st Dist. Hamilton

No. C-220308, 2023-Ohio-1256, ¶ 18, citing Veach v. Adams, 2022-Ohio-4031, 203

N.E.3d 1, ¶ 10 (1st Dist.); Row v. Row, 6th Dist. Lucas No. L-21-1231, 2022-Ohio-

2525, ¶ 9-10. An abuse of discretion implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

In this case, the trial court considered all the statutory best-interest

factors listed in R.C. 3109.051(D) and carefully reviewed the evidence presented.1

The trial court focused on the best interest and well-being of the minor children.

The trial court recognized that in a prior journal entry issued on March 17, 2020,

J.F.’s and maternal grandmother’s behavior had been found to contribute to the

alienation between J.H. and the minor children and it had been specifically ordered

that neither party “or person living in the parent’s home shall interfere with the

children’s relationship with the other parent or engage in any behavior that is

1 The trial court also noted that certain factors were particularly instructive in this

case, including the factors set forth in R.C. 3109.051(D)(1) (prior interaction and interrelationships of the child), (7) (health and safety of the child), (9) (mental and physical health of all parties), and (16) (any other factor in the child’s best interest). negative towards the other parent, is disparaging toward the other parent, or

adversely effects the relationship that the child has with the other parent.” The trial

court discussed facts that have arisen and concerning behaviors that have persisted

since said journal entry was issued, which are supported by the record. The trial

court also noted J.F.’s testimony, which reflected she had not talked to her parents

about changing their behavior, did not see the behavior as alienating or concerning,

and did not believe grandmother would “knock it off” if J.F. asked. As the trial court

determined, “[J.F.] values her mother’s ‘right to social justice’ over the minor

children’s relationship with [J.H.].” In reviewing the testimony and evidence

presented, the trial court aptly observed “the issue remains the continued

disparagement of [J.H.] as a threat to the parties’ three (3) children” and “[J.F.’s]

and maternal grandmother’s consistent failure to accept personal responsibility for

their actions.”

The trial court recognized that J.F. was residing in a multi-

generational household with her children and parents and did not “make this order

lightly.” The trial court determined, based on the evidence presented, that “[J.F.]

and maternal grandmother continue to be a threat to [J.H.’s] relationships with his

children” and that the continued pattern of conduct was contrary to the prior order

of the court. The trial court modified the conditions of J.F.’s parenting time in part

by ordering no contact with maternal grandmother.

We have thoroughly reviewed the record and the evidence presented,

and we do not find the trial court’s attitude was unreasonable, arbitrary, or unconscionable.2 We are not persuaded by the arguments raised by J.F. Although

the situation is unfortunate, the trial court considered the best-interest factors, its

decision is supported by the record, and there was no abuse of discretion by the trial

court.3 The first assignment of error is overruled.

Under the second assignment of error, J.F. claims the trial court’s

decision was retaliatory and denied J.F. her due process rights. J.F. believes that

she has been penalized for what she claims the trial court viewed as filing an

excessive number of motions and that this was not a valid reason to deny the

children contact with their grandmother. It is readily apparent that this was not the

basis for the trial court’s decision. Rather, the trial court considered the statutory

best-interest factors set forth in R.C. 3109.051(D), and its decision was supported by

evidence in the record. The cautionary remarks from the court were not prejudicial

or otherwise improper. Furthermore, J.F.’s disagreement with the decision or the

trial court’s weighing of the evidence is insufficient to demonstrate the trial court

abused its discretion. See Spillane v. Spillane, 12th Dist. Butler No. CA2019-12-206,

2020-Ohio-5052, ¶ 32. The second assignment of error is overruled.

2We are not persuaded by J.F.’s arguments otherwise and find the factual circumstances in Callender v. Callender, 7th Dist. Carroll No. 03-CA-790, 2004-Ohio- 1382, upon which J.F. relies, to be distinguishable.

3 We note that “grandparents have no constitutional right of association with their

grandchildren.” In re Martin, 68 Ohio St.3d 250, 252, 626 N.E.2d 82 (1994), citing In re Schmidt, 25 Ohio St.3d 331, 336, 496 N.E.2d 952 (1986). Rather, the only right for grandparents to visit their grandchildren “must be provided for by statute” and “the Ohio statutes allow visitation only if it is in the grandchildren’s best interest.” Id., citing In re Whitaker, 36 Ohio St.3d 213, 217, 522 N.E.2d 563 (1988). Under the third assignment of error, J.F. claims the trial court’s

allocation of the tax dependency exemptions was in error. In this matter, J.F. is the

residential parent of one of the parties’ three children, and J.H. is the residential

parent of two of the children. The trial court allocated the tax dependency

exemptions to the residential parent, determining that J.F. would claim K.H. as a

dependent for tax purposes in all applicable tax years and that J.H. would claim R.H.

and F.H.

We review the trial court’s decision allocating the tax dependency

exemptions for an abuse of discretion. King v. King, 6th Dist. Wood No. WD-20-

087, 2021-Ohio-2970, ¶ 45, citing In re J.H., 7th Dist. Jefferson No. 10 JE 15, 2011-

Ohio-6536, ¶ 13. There is a presumption that the residential parent is entitled to the

tax dependency exemption. Id., citing King v. King, 4th Dist. Jackson No. 12CA2,

2013-Ohio-3426, ¶ 4; see also 26 U.S.C. 152(e). However, if the parties are not in

agreement, R.C. 3119.82 permits the court to award the tax dependency exemption

to the nonresidential parent if the court determines the award furthers the best

interest of the child. Id., citing King, 4th Dist. Jackson No. 12CA2, 2013-Ohio-3426,

at ¶ 4. In making this determination, the court must consider “any net tax savings,

the relative financial circumstances and needs of the parents and children, the

amount of time the children spend with 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.”

R.C. 3119.82. “The non-residential parent bears the burden to provide any information needed to overcome the presumption” in favor of the residential parent.

Loewen v. Newsome, 9th Dist. Summit No. 28107, 2018-Ohio-73, ¶ 64, citing

Geschke v. Geschke, 9th Dist. Medina Nos. 3266-M and 3268-M, 2002-Ohio-5426,

¶ 32.4

In challenging the trial court’s decision, J.F. points to the living

arrangement of the children and argues she essentially has 1.5 children with her at

all times and shares in 50 percent of their expenses. However, these are not the only

factors that a trial court considers and does not alone demonstrate there was an

abuse of discretion. For instance, the record reflects that J.H. has a higher annual

income than J.F., and “[a] net tax savings to the parent usually equates to more

money being available for the care of the child, and is one of the five factors that a

court is required to weigh according to R.C. 3119.82.” Hilbert v. Hilbert, 2016-Ohio-

8099, 74 N.E.3d 977, ¶ 40 (12th Dist.); see also Stahl v. Stahl, 9th Dist. Summit

No. 27876, 2017-Ohio-4170, ¶ 24. Moreover, “the general rule is that the tax

exemption may be awarded to a non-custodial parent only when doing so serves the

best interests of the child.” In re Taylor G., 6th Dist. Lucas No. L-05-1197, 2006-

Ohio-1992, ¶ 23, citing Bobo at 332.

The trial court’s decision reflects that it “considered the evidence

presented by both parties, the presumption that the residential parent shall claim

4 “[I]f a trial court exercises the authority to allocate a child dependency deduction

to the noncustodial parent, the record must show that the interest of the child has been furthered.” Bobo v. Jewell, 38 Ohio St.3d 330, 332, 528 N.E.2d 180 (1988). the minor children, and the factors contained in R.C. 3119.82.”5 The trial court

found “no good cause to rebut the statutory presumption” and awarded the tax

dependency exemption to the residential parent of each child. R.C. 3119.82 does not

require the trial court to state the factors it considered or its reasons on the record.

In re Taylor G. at ¶ 26.

Because J.F. failed to demonstrate the allocation of the tax

dependency exemption to the noncustodial parent was in the best interest of the

child, we find no abuse of discretion by the trial court. The third assignment of error

is overruled.

Under the fourth assignment of error, J.F. asserts that the trial court’s

decision regarding attorney fees fails to follow the mandate of this court, and she

raises several challenges to the trial court’s award of attorney fees upon remand.

We review the trial court’s determination on attorney fees for an

abuse of discretion. We recognize that “most instances of abuse of discretion will

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

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

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

is unreasonable if there is no sound reasoning process that would support that

decision.” Id.

5 This case is distinguishable from Branden v. Branden, 8th Dist. Cuyahoga

No. 91453, 2009-Ohio-866, which is cited by J.F., wherein the trial court simply allocated the exemption without any indication that it made the appropriate considerations and did not even refer to R.C. 3119.82. In J.H., 6th Dist. Lucas No. L-20-1077, 2021-Ohio-24, this court

found no abuse of discretion by the trial court in awarding attorney fees to J.H. and

that the hourly rate of $200 charged by J.H.’s attorney was reasonable. Id. at ¶ 56-

57. However, we recognized that “the court awarded J.H. attorney fees for his

contempt motion, yet it granted him recovery for his entire fee bill.” Id. at ¶ 61. J.H.

had argued that the contempt motion and the motion to terminate the shared

parenting plan shared common core facts and that the award was proper under

R.C. 3105.73(B). Id. Because the trial court’s journal entry lacked sufficient clarity,

this court reversed the attorney-fees total in the amount of $18,145 and remanded

the matter for further proceedings as to the amount. Id. at ¶ 2, 61. This court further

directed the trial court to revisit the issue of attorney fees and litigation expenses

under R.C. 3105.73(B). Id. at ¶ 66. Consistent with the mandate from this court,

upon remand, the trial court considered these issues.

First, pursuant to R.C. 3109.051(K), the trial court determined the

reasonable attorney fees that arose in relation to the contempt finding of the court,

which was made in the March 17, 2020 journal entry. The trial court considered the

testimony from the hearing held on December 10-11, 2019, and noted that the first

motion J.H. filed to invoke the continuing jurisdiction of the court was a combined

motion to vacate shared parenting plan and motion to show cause, which was

followed by various other motions. The trial court discussed the testimony of J.H.’s

attorney, who stated that the issues in the motions to show cause were “intertwined”

with the issues in J.H.’s motion to terminate the parties’ shared parenting plan, that all of the motions were related to parenting-time issues between the parties, and

that J.F.’s denial of parenting time was an important part of the discussions. The

trial court also considered that J.H.’s attorney testified that “maybe an hour or two”

of time was related to matters wholly separate from the contempt and that J.F.

pointed to only three items on the fee statement that might not be related to the

contempt finding, which the trial court evaluated. After reviewing the attorney-fee

statement, the trial court found “all of [J.H.’s] attorney’s fees except 4.2 hours arose

from acts related to the motion for contempt.” The trial court awarded reasonable

attorney fees pursuant to R.C. 3109.051(K) in the amount of $17,305. We have

considered the arguments presented and find no abuse of discretion by the trial

court. We affirm this portion of the attorney-fees award.

Next, the trial court considered J.H.’s request for an award of

litigation expenses and attorney fees pursuant to R.C. 3105.73(B), which applies to

post-decree motions or proceedings and permits the court to award “all or part of

reasonable attorney’s fees and litigation expenses to either party if the court finds

the award equitable.”

The trial court considered the parties’ income and the conduct of the

parties. The trial court specifically addressed the guardian-ad-litem fees and the

cost of psychological evaluation and determined “each party shall pay their own

litigation expenses, including court costs and fees related to any court appointed

professional, as previously ordered.” However, the trial court then determined that

“[J.F.] shall pay the remainder of [J.H.’s] attorney’s fees not related to the motion for contempt in the amount of $840.00.” The trial court did not offer any reasons

for this award. Because we find no sound reasoning process supports a finding that

the $840 attorney-fee award is equitable, we reverse this portion of the award.

Finally, J.F. claims that the trial court failed to credit her with

$9,072.50 that she already paid. J.H. does not dispute that this amount has been

paid. Therefore, upon remand, the trial court shall credit J.F. with any amounts

paid. We overrule in part and sustain in part the fourth assignment of error.

Under the fifth assignment of error, J.F. asserts that the trial court’s

order precluding her from recording J.H. was dangerous and inappropriate. She

fails to cite to any relevant portions of the record and cites no authority to support

her argument. Our review reflects there is evidence in the record that shows not

only had J.F. engaged in behavior of recording J.H., including at a counseling

session without his consent or prior disclosure, but one of the children had provided

a 48-minute recording of J.H. The trial court observed that a caseworker stated at

no point on the recording was J.H. aggressive or yelling and the caseworker had no

concerns with J.H.’s home or otherwise. The trial court ordered that “[J.F.]

immediately cease recording the minor children and/or [J.H.].” We find no abuse

of discretion by the trial court in imposing this condition and overrule the fifth

assignment of error.

Judgment affirmed in part and reversed in part. We remand the case

to the trial court with instructions to vacate the $840 attorney-fee award and to

credit J.F. with any amounts paid. It is ordered that appellant and appellee share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure. See also 6th Dist.Loc.App.R. 4.

EILEEN A. GALLAGHER, P.J. _________________________ Presiding Judge

MARY J. BOYLE, J., ____ _________________________ Judge

SEAN C. GALLAGHER, J. _________________________ Judge CONCUR

(Sitting by assignment: Eileen A Gallagher, P.J., Mary J. Boyle, J., and Sean C. Gallagher, J., of the Eighth District Court of Appeals.)