[Cite as Johnson v. Johnson, 2020-Ohio-1644.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
JENNIFER L. JOHNSON : : Plaintiff-Appellee : Appellate Case No. 2019-CA-46 : v. : Trial Court Case No. 2016-DR-171 : DAVID L. JOHNSON : (Domestic Relations Appeal) : Defendant-Appellant : :
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OPINION
Rendered on the 24th day of April, 2020.
JAY A. ADAMS, Atty. Reg. No. 0072135, 100 North Detroit Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
DAVID L. JOHNSON, P.O. Box 364, Fairborn, Ohio 45324 Defendant-Appellant, Pro Se
.............
WELBAUM, J. -2-
{¶ 1} Defendant-appellant, David L. Johnson, appeals pro se from a judgment of
the Domestic Relations Division of the Greene County Court of Common Pleas, which
found him in direct contempt of court and in contempt of an Agreed Order that he and
plaintiff-appellee, Jennifer L. Johnson, entered into following their divorce. For the
reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} David and Jennifer Johnson (hereafter “David” and “Jennifer”) were married
on October 20, 2001. Two children were born as a result of their marriage, a son in
2003, and a daughter in 2010. On July 19, 2016, Jennifer filed a complaint for divorce.
Thhe trial court issued a final judgment and decree of divorce on August 2, 2018.
{¶ 3} Prior to issuing the final decree of divorce, the trial court ordered the parties
to divide their personal property using a master list of property created by the trial court.
Jennifer was to get the first choice of the property and the parties were to then alternate
choosing items from the list until all the property was accounted for. At trial, the parties
notified the trial court that they had successfully divided their property as ordered, with
the exception of property located in two safes known as the “family safe” and the
“business safe.” In response to this issue, the trial court ordered the parties to meet and
inventory the contents of the two safes before November 17, 2017. In the event the
parties could not reach an agreement with regard to the property in the safes, the trial
court ordered the parties to return to court to litigate the issue.
{¶ 4} Because neither party filed a motion related to the contents of the safes,
when issuing the divorce decree, the trial court found that all personal property had been -3-
properly divided and that both parties were satisfied with the division. However, four
months after the divorce decree was issued, Jennifer filed a motion to compel David to
provide her with certain items of personal property inside the business safe. Although
David initially opposed Jennifer’s motion, the parties were eventually able to reach an
agreement with regard to the property inside the business safe. The trial court ordered
the agreement to be memorialized in an Agreed Order, which the parties filed on March
8, 2019.
{¶ 5} The Agreed Order provided, in relevant part, that within 14 days of filing the
order, David would return the following items to Jennifer:
1. Jennifer’s wedding ring and her engagement stone in the form of a
necklace or any other form;
2. Savings bonds in the name of their son;
3. Jennifer’s birth certificate;
4. Both of their children’s birth certificates;
5. Jennifer’s parents’ trust documents;
6. Jennifer’s family genealogy book and documents;
7. Jennifer’s senior picture book and senior pictures;
8. Jennifer’s college and high school diplomas;
9. Two Leis family photo albums and copies of family photos in other
albums;
10. A filing cabinet that was part of Jennifer’s employment with United
Health Care and the documents contained therein; and
11. Copies of family photos contained on hard drives in David’s -4-
possession.
{¶ 6} After filing the Agreed Order, on April 10, 2019, Jennifer filed a motion for
David to show cause as to why he should not be held in contempt for failing to comply
with the Agreed Order. Specifically, Jennifer alleged that David had failed to return: (1)
her wedding ring and engagement stone; (2) her parent’s trust documents; (3) copies of
their family photo albums; and (4) copies of family photos contained on the hard drives in
David’s possession.
{¶ 7} On July 2, 2019, the trial court held a hearing on the show cause motion for
contempt. At the hearing, Jennifer clarified that David had returned her wedding ring,
but not her engagement stone. Although not raised in her motion, Jennifer additionally
testified that David had only provided her with one of their son’s savings bonds. Jennifer
testified that she did not know the exact number of savings bonds that were in David’s
possession, but she testified that David had previously told her that he cashed $295 worth
of the bonds.
{¶ 8} Jennifer also testified that David had not provided her with her parent’s trust
documents. Although Jennifer testified that her parents paid $100 to obtain a copy of
the trust documents from the attorney who drafted them, she indicated that the documents
would need to be redrafted in the event the original documents were ever needed.
{¶ 9} Jennifer further testified that David only provided her with a small portion of
the family photos and videos that were located on the compact discs and hard drives in
David’s possession. Jennifer testified that David agreed to copy all the photos and
videos onto a flash drive that she provided to him. Jennifer testified that David had
previously told her there were thousands of photos and a couple hundred hours of video -5-
on the discs and hard drives. However, Jennifer testified that when she received the
flash drive back from David, only a couple of videos and 600 photos, many of which were
duplicates, had been copied.
{¶ 10} Based on David’s failure to return her engagement stone, her parent’s trust
documents, their son’s savings bonds, and copies of all their family photos and videos,
Jennifer requested the trial court to find David in contempt of the Agreed Order. Jennifer
also requested that the trial court award her the court costs and attorney’s fees that she
incurred as a result of David’s contempt. Jennifer testified that she incurred $250 in
court costs and at least $350 in attorney’s fees.
{¶ 11} On cross-examination, David, who was proceeding pro se, did not question
Jennifer, but instead made statements regarding the engagement stone. Specifically,
David claimed that the engagement stone was only worth $150 and that he and Jennifer
had agreed that he was going to take the stone to a jeweler so that it could be made into
a necklace for their daughter. David then claimed that he was “a dumb guy or whatever”
and “misplaced [the stone].” Contempt Hearing Trans. p. 43. Later, on rebuttal,
Jennifer testified that the engagement stone was a half carat diamond that was worth at
least $1,000.
{¶ 12} Following Jennifer’s testimony, David called his father, William Johnson, to
testify on his behalf. William testified that he acted as an intermediary between David
and Jennifer and that he personally handed Jennifer her wedding ring and the flash drive
containing the family photos and videos. William further testified that David had told him
that Jennifer’s engagement stone was with a jeweler for purposes of being turned into a
necklace. William, however, admitted that David eventually told him that he had actually -6-
misplaced the stone and was embarrassed about it.
{¶ 13} William also testified that, prior to the parties’ Agreed Order, he and David
had inventoried the contents of the safes. David offered their written inventory into
evidence, but, following an objection from Jennifer’s attorney, the trial court found the
inventory was irrelevant and prohibited its admission into evidence. The trial court found
that the inventory was irrelevant because it was created prior to the parties’ Agreed Order
and had no bearing on whether David had complied with the Agreed Order.
{¶ 14} Continuing, William testified that 12 days after the Agreed Order was filed,
he and Jennifer went through the contents of the business safe together and put the
contents into two piles—one for Jennifer and one for David. William then testified that
Jennifer had contacted him the next evening and advised that her parent’s trust
documents were not in the pile of documents that she had brought home with her.
David’s father testified that he did not recall seeing the trust documents while he and
Jennifer went through the safe.
{¶ 15} Throughout the hearing, David acted belligerently and made several
inappropriate comments. After David’s initial series of inappropriate comments, the trial
court advised David that he was in direct contempt of court and sentenced him to 10 days
in jail. The trial court also notified David that if he continued to behave in such a manner,
he would earn an additional 10 days in jail per incident. Despite this admonishment, and
after several more warnings from the trial court, David continued to interrupt the hearing
with inappropriate comments. Over the course of the hearing, the trial court found David
in direct contempt of court six times, for a total of 60 days in jail, which David began to
serve immediately after the hearing. -7-
{¶ 16} On July 10, 2019, the trial court issued two judgment entries—one
journalizing the trial court’s finding that David was in direct contempt of court six times
during the contempt hearing, and the other finding David in contempt of the Agreed Order.
With regard to the Agreed Order, the trial court found that David had violated four
provisions of the order by failing to return the engagement stone, the trust documents,
the savings bonds, and copies of the family photos and videos. As a sanction, the trial
court ordered David to serve 30 days in jail for each violation of the Agreed Order, for a
total sentence of 120 days in jail. The trial court, however, indicated that it would
consider suspending the 120-day jail sentence if David did all the following before he was
to be sentenced on January 8, 2020:
1. Return the engagement stone to Jennifer or pay the value of the
engagement stone, which the trial court found to be $1,000;
2. Return the trust documents to Jennifer or pay the cost of having the
trust documents redrafted in an amount not to exceed the cost of the
original preparation;
3. Provide Jennifer with copies of all family photos and videos;
4. Pay Jennifer $295 dollars for the savings bonds;
5. Pay Jennifer $250 for court costs; and
6. Pay Jennifer $350 in attorney’s fees.
{¶ 17} David thereafter appealed from the trial court’s contempt judgments.
Following the appeal, the trial court canceled the sentencing hearing scheduled for
January 8, 2020. In support of his appeal, David has raised eight assignments of error
for review. For purposes of clarity, we will address David’s assignments of error out of -8-
order.
Second Assignment of Error
{¶ 18} Under his second assignment of error, David challenges the trial court’s
decision to sentence him to 120 days in jail for being in contempt of the Agreed Order.
As previously discussed, the trial court found that David violated the Agreed Order by
failing to provide Jennifer with: (1) her engagement stone; (2) her parent’s trust
documents; (3) their son’s savings bonds; and (4) copies of all their family photos and
videos. David contends that the trial court erred by sentencing him to a 30-day jail term
for each of these violations. According to David, his failure to abide by the Agreed Order
qualified as only one instance of contempt for which he could only be sentenced to a
single, maximum term of 30 days in jail. We disagree.
{¶ 19} David bases his argument on R.C. 2705.05(A), which provides, in relevant
part, that if a person accused of contempt is found guilty of the contempt charge after the
required hearing, the trial court may impose any of the following penalties:
(1) For a first offense, a fine of not more than two hundred fifty dollars, a
definite term of imprisonment of not more than thirty days in jail, or both;
(2) For a second offense, a fine of not more than five hundred dollars, a
definite term of imprisonment of not more than sixty days in jail, or both;
(3) For a third or subsequent offense, a fine of not more than one
thousand dollars, a definite term of imprisonment of not more than ninety
days in jail, or both.
{¶ 20} David’s reliance on R.C 2705.05(A) is misplaced. Although R.C. -9-
2705.05(A) does prescribe sanctions for indirect contempt violations such as the one at
issue here, common pleas courts are not required to follow it. Copley Twp. Bd. of
Trustees v. W.J. Horvath Co., 193 Ohio App.3d 286, 2011-Ohio-1214, 951 N.E.2d 1054,
¶ 10 (9th Dist.). “[W]hile a common pleas court has a duty to follow the procedure for a
contempt proceeding as outlined by R.C. 2705.05(A), e.g. the court must conduct a
hearing, the common pleas court is not limited by the provisions of the statute which refer
to the penalties which may be imposed. Those provisions, namely R.C. 2705.05(A)(1)-
(3), are only binding on statutory courts.” (Emphasis added.) Carter v. Carter, 2d Dist.
Montgomery Nos. 14409, 14530, 14574, 1994 WL 660811, *14 (Nov. 23, 1994). This is
because “ ‘ “[t]he general assembly is without authority to abridge the power of a court
created by the constitution to punish contempts * * *, such power being inherent and
necessary to the exercise of judicial functions * * *.” ’ ” Id., quoting State ex rel. Johnson
v. Cty. Court of Perry Cty., 25 Ohio St.3d 53, 54, 495 N.E.2d 16 (1986), quoting Hale v.
State, 55 Ohio St. 210, 45 N.E. 199 (1896), paragraph one of the syllabus. Therefore,
“[a]lthough * * * the General Assembly may prescribe procedure in indirect contempt
cases, the power to punish for contempt has traditionally been regarded as inherent in
the courts and not subject to legislative control.” Cincinnati v. Cincinnati Dist. Council
51, 35 Ohio St.2d 197, 207, 299 N.E.2d 686 (1973). Thus, courts have “wide discretion
to determine the punishment for contempt of [their] own orders.” State ex rel. Anderson
v. Indus. Comm., 9 Ohio St.3d 170, 172, 459 N.E.2d 548 (1984).
{¶ 21} We note that there is some recent case law holding that “ ‘when two or more
violations are brought in a single contempt action and during one hearing, the person
found guilty of contempt cannot be punished for each violation.’ ” Brown v. Brown, 12th -10-
Dist. Clermont No. CA2019-01-007, 2019-Ohio-3619, ¶ 19, quoting Mackowiak v.
Mackowiak, 12th Dist. Fayette No. CA2010-04-009, 2011-Ohio-3013, ¶ 57, citing Pugh v.
Pugh, 15 Ohio St.3d 136, 142-143, 472 N.E.2d 1085 (1984) and O’Neill v. Bowers, 10th
Dist. Franklin No. 90AP-130, 1990 WL 189897 (Nov. 29, 1990). This concept originates
from the Supreme Court of Ohio’s holding in Pugh. In Pugh, the Supreme Court of Ohio
relied on a former version of R.C. 2705.05 to find that a person “cannot be imprisoned for
each violation which composes the contempt charge.” Pugh at 143. Specifically, the
Supreme Court of Ohio stated the following in Pugh:
In the case sub judice, appellant was ordered to serve two
consecutive ten-day jail terms for violating two different terms of the
separation agreement. However, both violations were brought out in one
action for contempt. R.C. 2705.05 states:
“Upon the day fixed for the trial in a contempt proceeding the court
shall investigate the charge, and hear any answer or testimony which the
accused makes or offers.
“The court shall then determine whether the accused is guilty of the
contempt charge. If it is found that he is guilty, he may be fined not more
than five hundred dollars or imprisoned not more than ten days, or both.”
Therefore, appellant may only be imprisoned for a maximum of ten
days if he is found guilty of contempt. He cannot be imprisoned for each
violation which composes the contempt charge. However, this ruling does
not limit the number of contempt actions which may be brought. If
appellant refuses to obey the orders of the court after serving his sentence, -11-
additional contempt proceedings can be initiated which list the appellant's
violations.
Pugh, 15 Ohio St.3d 136, 142-143, 472 N.E.2d 1085.
{¶ 22} In Carter, this court declined to follow Pugh and held that “[n]otwithstanding,
the language of Pugh, we hold that the common pleas court’s authority to punish contempt
is not limited by R.C. 2705.05.” Carter, 2d Dist. Montgomery Nos. 14409, 14530, 14574,
1994 WL 660811, at *14. We based this finding on the Supreme Court of Ohio’s
language in State ex rel. Johnson, a case which post-dated Pugh, and explained the
following:
“A court created by the constitution has inherent power to define and
punish contempts, such power being necessary to the exercise of judicial
functions.” State, ex rel. Turner, v. Albin (1928), 118 Ohio St. 527, 161
N.E.2d 792, paragraph one of the syllabus. “The general assembly is
without authority to abridge the power of a court created by the constitution
to punish contempts * * *, such power being inherent and necessary to the
exercise of judicial functions * * *.” Hale v. State (1896), 55 Ohio St. 210,
45 N.E. 199, paragraph one of the syllabus. Statutory powers to deal with
contempts are merely cumulative and in addition to the inherent authority of
the court. Univis Lens Co. v. United Electrical Radio & Machine Workers
of America (1949), 86 Ohio App. 241, 245, 89 L.Ed.2d 658[.] * * *
State ex rel. Johnson, 25 Ohio St.3d 53, 54, 495 N.E.2d 16.
Because the holding in Pugh relied on R.C. 2705.05, which the Supreme Court of
Ohio later indicated does not limit the trial court’s inherent authority to punish contempts, -12-
in Carter, we simply applied an abuse of discretion standard of review. In doing so, we
found that under the totality of the circumstances, the trial court did not abuse its discretion
in sentencing an appellant to three consecutive 30-day jail terms for violating three terms
of a divorce decree. Carter at *14.
{¶ 23} Based on the foregoing, we find that our review of David’s sentence for his
contempt of the Agreed Order is confined to a determination of whether the trial court
abused its discretion. “ ‘Abuse of discretion’ has been defined as an attitude that is
unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “[M]ost
instances of abuse of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary.” Id. “A decision is
unreasonable if there is no sound reasoning process that would support that decision.”
Id.
{¶ 24} Under the totality of the circumstances, we do not find that it was
unreasonable for the trial court to sentence David to 30 days in jail for each of the four
violations of the Agreed Order. The record indicates that David had ample time and
resources to comply with the Agreed Order yet failed to do so in multiple respects and
showed indifference to his failure. David also had a history of violating court orders.
On April 14, 2017, the trial court previously found David in contempt of an order for him
to make lease payments on a vehicle and sentenced him to 30 days in jail. See Decision
and Order of Contempt (Apr. 14, 2017). Therefore, under the circumstances of this
case, we do not find that it was an abuse of discretion for the trial court to impose an
aggregate sentence of 120 days in jail for David’s violation of four provisions of the Agreed -13-
{¶ 25} David’s second assignment of error is overruled.
Third Assignment of Error
{¶ 26} Under his third assignment of error, David challenges the trial court’s
decision finding him in direct contempt of court six times during the July 2, 2019 contempt
hearing. David contends that the trial court should have suspended the hearing after it
first found him in contempt and sentenced him to 10 days in jail. According to David, the
trial court abused its discretion when it continued with the hearing and proceeded to find
him in contempt five more times, increasing his sentence to 60 days in jail.
{¶ 27} It is well settled that “ ‘[w]here a defendant, convicted of a criminal offense,
has * * * completed the sentence for that offense, an appeal is moot when no evidence is
offered from which an inference can be drawn that the defendant will suffer some
collateral disability or loss of civil rights from such judgment or conviction.’ ” Harris v.
Omosule, 2d Dist. Greene No. 2009-CA-78, 2010-Ohio-1124, ¶ 6, quoting Springfield v.
Myers, 43 Ohio App.3d 21, 25, 538 N.E.2d 1091 (1988), citing State v. Wilson, 41 Ohio
St.2d 236, 325 N.E.2d 236 (1975), syllabus. “The burden of proof is on the defendant
to establish at least an inference that he will suffer some collateral disability or loss of civil
rights.” Harris at ¶ 6, citing State v. Berndt, 29 Ohio St.3d 3, 504 N.E.2d 712 (1987).
{¶ 28} As a preliminary matter, we note that the nature of David’s direct contempt
sanction is criminal because David’s 60-day jail sentence is unconditional, punitive, and
not for the benefit of the complainant. See Preston v. Shutway, 2013-Ohio-185, 986
N.E.2d 584, ¶ 30-31 (2d Dist.). The record indicates that David began serving his 60- -14-
day jail sentence immediately following the July 2, 2019 hearing, and David does not deny
the fact that he has since completed that sentence. Therefore, insofar as David has
served the 60-day jail sentence, his appeal of the trial court’s direct contempt judgment
is moot, as there is nothing in the record indicating that David will suffer any collateral
disability or loss of civil rights from such judgment. See Springfield at 25 (appeal of
contempt finding moot where appellant had completed his sentence for contempt and
appellant failed to establish that he would suffer some collateral disability from such
judgment).
{¶ 29} David’s third assignment of error is overruled.
First and Fourth Assignments of Error
{¶ 30} Under his first and fourth assignments of error, David claims that Jennifer
committed perjury during the July 2, 2019 hearing. David asserts that Jennifer perjured
herself because she averred in a sworn affidavit attached to her motion to show cause
that David had not returned her wedding ring as required by the Agreed Order, but later
testified at the hearing that he had provided her with the wedding ring. Given that
discrepancy, David claims the trial court should have permitted him to impeach Jennifer’s
testimony regarding the wedding ring and abused its discretion in prohibiting him from
doing so. David also claims that the trial court abused its discretion in finding Jennifer’s
testimony credible given her perjury. Both of these arguments lack merit.
{¶ 31} Contrary to David’s claim otherwise, the record of the July 2, 2019 hearing
does not indicate that David ever attempted to impeach Jennifer using the inconsistent
statement in her motion/affidavit. Rather, during Jennifer’s direct examination, David -15-
objected to Jennifer’s testimony about receiving the wedding ring, which led to the
following discussion:
David: I want to object for one second because in her sworn testimony [in
her motion] she actually lied and said---
Court: What’s the objection?
David: ---she hadn’t had the ring back—
Court: Wait a minute.
David: ---the wedding ring back. The $2,600 wedding ring back.
Court: That’s not an objection.
David: Well, I’m just saying, like—
Court: You’re—
David: ---she already lied.
David: Sorry.
Court: You made an objection I’m overruling it because you’re not making
an objection.
David: All right.
Court: You’re testifying.
Court: And you’ll get a chance to do that—
David: All right. I’m sorry.
Court: ---later.
David: I apologize, your Honor. -16-
Contempt Hearing Trans. p. 9-11.
{¶ 32} When it came time to cross-examine Jennifer, David did not bring up the
contradictory statement in her motion/affidavit and thus never attempted to impeach her
testimony regarding the wedding ring. Accordingly, David’s claim that the trial court did
not allow him to impeach Jennifer is not supported by the record.
{¶ 33} With regard to Jennifer’s credibility, the inconsistency between the
statement in her motion/affidavit and her hearing testimony was certainly something the
trial court could have considered when making a credibility determination. As a general
rule, an appellate court affords a trial court great discretion with regard to issues of witness
credibility and will not substitute its own judgment for that of the trial court.
Weatherspoon v. Weatherspoon, 2d Dist. Montgomery No. 23393, 2010-Ohio-3248, ¶ 74;
Seitz v. Seitz, 2d Dist. Montgomery Nos. 22426, 23698, 2010-Ohio-3655, ¶ 19. Upon
reviewing the record, we find that it was not unreasonable for the trial court to find Jennifer
more credible than David. The record indicates that David lied to his father and Jennifer
about taking Jennifer’s engagement stone to a jeweler. David’s father also confirmed
that David had previously made a false claim to the authorities that his daughter had been
abducted. In addition, David exhibited poor character during the show cause hearing by
making several inappropriate comments and by disrespecting the court’s authority.
Therefore, based on the record, we cannot say that he trial court abused its discretion in
finding Jennifer to be a more credible witness.
{¶ 34} David’s first and fourth assignments of error are overruled.
Fifth Assignment of Error -17-
{¶ 35} Under his fifth assignment of error, David contends that the trial court
abused its discretion when it determined that the inventory of the safes prepared by his
father was irrelevant and inadmissible at the July 2, 2019 hearing. We disagree.
{¶ 36} “The trial court enjoys broad discretion in the admission or exclusion of
evidence and an appellate court will not disturb the exercise of that discretion without a
showing of material prejudice.” (Citation omitted.) Phillabaum v. Monsanto Research
Corp., 2d Dist. Montgomery No. 10290, 1987 WL 29457, *2 (Dec. 14, 1987).
{¶ 37} In this case, we find neither an abuse of discretion nor material prejudice
with regard to the trial court’s decision not to admit the inventory at issue. During the
hearing, the trial court explained that the only issue before the court was whether David
abided by the terms of the parties’ Agreed Order, and that the inventory was irrelevant to
that issue because it was made before the Agreed Order existed. Therefore, the trial
court reasonably prohibited the admission of the inventory on grounds that it had no
bearing on whether David complied with the parties’ Agreed Order.
{¶ 38} David’s fifth assignment of error is overruled.
Sixth Assignment of Error
{¶ 39} Under his sixth assignment of error, David challenges the trial court’s order
requiring him to pay the cost of redrafting Jennifer’s parents trust documents in order to
purge his contempt of the Agreed Order. David claims that the trial court should have
instead ordered him to pay the cost of providing copies of the trust documents. We,
however, find no abuse of discretion in the trial court’s order. Jennifer testified that if the
original trust documents were ever needed, she and her parents would have to have new -18-
trust documents prepared. Therefore, it was reasonable for the trial court to order David
to either provide the original trust documents or to pay the cost to have the trust
documents redrafted.
{¶ 40} David’s sixth assignment of error is overruled.
Seventh and Eighth Assignments of Error
{¶ 41} Under his seventh and eighth assignments of error, David challenges the
trial court’s order requiring him to pay Jennifer $250 in court costs and $350 in attorney’s
fees to purge his contempt of the Agreed Order. We note that David does not dispute
the fact that his contemptuous conduct was the reason these costs and fees were
incurred. Rather, David claims that the clerk of court, not the trial court, should have
determined the amount of court costs owed. David also claims that awarding court costs
and attorney’s fees was inappropriate because the parties’ Agreed Order did not require
him to pay such costs and fees. We disagree with David’s claims.
{¶ 42} Pursuant to R.C. 3105.73(B):
In any post-decree motion or proceeding that arises out of an action
for divorce, dissolution, legal separation, or annulment of marriage or an
appeal of that motion or proceeding, the 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’ income, the conduct of the parties, and
any other relevant factors the court deems appropriate, but it may not
consider the parties’ assets. -19-
{¶ 43} A trial court’s award of attorney’s fees and litigation expenses under R.C.
3105.73(B) is reviewed under an abuse of discretion standard. Eldridge v. Eldridge, 2d
Dist. Greene No. 2018-CA-17, 2019-Ohio-233, ¶ 32, citing Janis v. Janis, 2d Dist.
Montgomery No. 23898, 2011-Ohio-3731, ¶ 78. Therefore, “ ‘[w]e may not substitute
our judgment for that of the trial court unless, when considering the totality of the
circumstances, we conclude that the trial court abused its discretion.’ ” Id., quoting
Janis, citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131, 541 N.E.2d 597 (1989).
{¶ 44} In this case, Jennifer testified that she had to pay $250 in court costs and
at least $350 in attorney fees as a result of David failing to abide by the Agreed Order.
David, on the other hand, did not provide any evidence or argument at the hearing
challenging the reasonableness of the fees and costs that Jennifer allegedly incurred.
Because the trial court found that David had violated the Agreed Order, and because the
trial court was presented with an uncontested request for costs and attorney’s fees and
undisputed testimony as to the amount of those costs and fees, we find that the trial court
did not abuse its discretion in awarding Jennifer $250 in court costs and $350 in attorney
fees. Under the circumstances of this case, it was reasonable for the trial court to find
that such an award of costs and fees was equitable.
{¶ 45} David’s seventh and eighth assignments of error are overruled.
Conclusion
{¶ 46} Having overruled all assignments of error raised by David, the judgment of
the trial court is affirmed.
............. -20-
TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Jay A. Adams David L. Johnson Hon. Steven L. Hurley