J.S. v. A.S.

2024 Ohio 6015

• Court: Ohio Court of Appeals
• Decided: December 26, 2024
• Docket: 112963, 112997, 113007
• Status: Published

Opinion

[Cite as J.S. v A.S., 2024-Ohio-6015.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

J.S., :

Plaintiff-Appellee/ Cross-Appellant, : Nos. 112963, 112997, and v. : 113007

A.S., :

Defendant-Appellant/ Cross-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: December 26, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Case No. DR-19-375930

Appearances:

Rosenthal│Lane, LLC, Scott S. Rosenthal, and James L. Lane, for appellee/cross-appellant.

Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole A. Cruz, and Kelley R. Tauring, for appellant/cross-appellee.

EMANUELLA D. GROVES, J.:

Defendant-appellant/cross-appellee, A.S., (“Husband”), appeals the

judgment entry of divorce. Plaintiff-appellee/cross-appellant, cross appeals the same judgment. For the reasons that follow, we reverse in part and affirm in part

the decision of the trial court and remand for further proceedings.

Facts and Procedural History

Wife and Husband were married on August 31, 2003, and they had

three children born as issue of the marriage. Wife filed a complaint for divorce on

March 18, 2019. The trial court placed a mutual restraining order that, in part,

prohibited the parties from withdrawing funds from various joint or individual

accounts, including trusts. Husband filed a complaint for divorce on March 21,

2019. The trial court ultimately consolidated the two cases under Wife’s case

number and designated Husband’s complaint as a counterclaim for divorce.

Husband filed a motion to dismiss Wife’s complaint for divorce alleging lack of

personal jurisdiction on March 27, 2019. The trial court denied the motion on May

6, 2019. Husband appealed that decision which we dismissed for lack of a final

appealable order.

Each party filed a motion requesting temporary support. On

December 9, 2019, the court issued a magistrate’s order on the parties’ dual motions

for temporary support which required Husband to pay the mortgage on the marital

property, with no additional exchange of cash support. In September 2020, the

parties agreed to a 2-2-5-5 child custody agreement and to split equally medical

expenses uncovered by insurance and the employee portion of medical insurance.

Additionally, Wife agreed to pay the mortgage, taxes, and insurance on the marital

residence. On April 9, 2020, Husband filed a motion to show cause alleging Wife

had withdrawn money from her individual trust accounts to pay attorney fees. The

court elected to address the motion at trial. In preparation for trial, Wife

participated in a psychological examination by Husband’s expert, Dr. Steven

Neuhaus (“Dr. Neuhaus”). Wife cooperated with the examination, participated in

interviews, and signed releases of information of her medical records. Husband did

not produce an expert report prior to the trial court’s deadline; nevertheless,

Husband included Dr. Neuhaus on his witness lists including the one filed the

month of trial. Although Husband initially identified Dr. Neuhaus as a testifying

expert, Husband did not present Dr. Neuhaus as a witness. Wife issued a subpoena

for Dr. Neuhaus’s records and expert reports on April 19, 2021.

The bench trial in the matter commenced on April 19, 2021, and was

scheduled for three days. The parties were unable to complete their cases within

that time. On April 29, 2021, Wife filed a motion to compel Dr. Neuhaus to respond

to the subpoena. Dr. Neuhaus and Husband each filed motions to quash the

subpoena. Dr. Neuhaus averred in an affidavit that he was informed by Husband’s

counsel after trial started that he would not be testifying. Husband never formally

withdrew Dr. Neuhaus as a testifying expert. The trial court granted the motions to

quash, and Wife appealed. This court dismissed the appeal for lack of a final

appealable order on July 26, 2021. Wife appealed that decision to the Ohio Supreme

Court, which declined to accept jurisdiction on December 7, 2021. Due to the appeals and the trial court’s schedule, the trial did not resume until March 2023 and

concluded in June 2023. The trial court issued its decision on June 30, 2023.

The primary marital property was owned by Husband’s mother and

uncle prior to his marriage. Husband initially purchased his uncle’s share in the

property, for approximately $150,000. The deed transferred the uncle’s share in the

property to Husband and to Husband’s mother. Husband believed the house was

worth $300,000. During the marriage, the parties purchased Husband’s mother’s

interest in the property. Both parties had the property appraised and presented

separate witnesses regarding its fair market value. The court ultimately found that

Husband had a separate one-half interest in the marital property and that the

remaining equity should be divided equally between the parties. At the conclusion

of the marriage, the court found the value of the home to be $350,000 with a

mortgage of $204,000. The court found Wife was entitled to $36,500 of the

$146,000 equity in the home. A separate property that Wife leased was to remain

in her name, and she was solely responsible for all costs associated with the lease

agreement.

The trial court awarded each spouse their separate vehicles. Husband

owned a 2014 Subaru Impreza, and Wife drove a leased 2022 Lexus SUV. The court

found that Wife’s jewelry which consisted of gifts from her father, B.T., and a tennis

bracelet from Husband were her separate property. The court found that Wife

liquidated several trusts in her name to pay attorney’s fees. The court found that those funds were Wife’s separate property. The court’s order addressed additional

accounts, but they are not relevant to this appeal.

The court found that the parties had the following retirement

accounts during the marriage: Wife had a 401k account with Nordstrom, a previous

employer, and Husband held a 401K through his employer, an IRA and a TDA

account. The court ordered each retirement asset earned during the marriage to be

divided equally between the parties.

During the trial, Wife testified that she stopped working after the

birth of their first child in 2005. Husband worked several jobs during the marriage

and had a period of unemployment after being laid off. Towards the end of the

marriage after the divorce began, Husband obtained a position with a salary of

$94,500 per year. During the marriage, B.T., Wife’s father, supplemented the

couples’ income. The trial court ultimately found:

The evidence clearly shows that [Wife] has made substantial financial contributions to the family for the entirety of the marriage despite not being employed or earning an income. There have also been many issues related to the discovery process on these issues that extended well into trial.

[Wife] has maintained throughout the trial that she has no income and, at best, should be imputed at the minimum wage. The Court does not find this testimony to be credible. This approach would yield an outcome that is inconsistent with R.C. 3119.01 and is fundamentally inequitable. This argument is also concerning considering [Wife’s] testimony as to her self-reported household expenses which did not include the entirety of her household or personal expenses. [Wife’s] own testimony showed that she had approximately $359,000.00 available to her through her father, [B.T.]. Furthermore, [Wife’s] own testimony showed that she is enjoying a lifestyle that is well out of reach for someone making the minimum wage, which [Wife] argues that she should be imputed to for support purposes. Accordingly, the Court finds that [Wife’s] income for the support purposes is approximately $359,000.00 and could possibly be more than that amount.

June 30, 2023 Divorce Decree

Included in that amount were monthly expenses of $14,736.08

reported by Wife in her final financial disclosure statement and monthly expenses

for the marital home of $3,167.88 (total: $214,847.52/year); the yearly value of two

prepaid three-year vehicle leases that B.T. paid for Wife and the parties’ oldest

daughter (total $18,000), and approximately $125,000 in attorney fees over a one-

year period. The court ordered Wife to pay Husband spousal support in the amount

of $4,600 per month for a term of 72 months.

With respect to the custody of the children, Wife requested shared

parenting and filed a plan on March 9, 2023. Husband filed a brief in opposition on

March 16, 2023, and requested to be named the sole residential parent and legal

custodian of the parties’ minor children. After a thorough review of the evidence at

trial, the relevant statutory factors, and the recommendation of the appointed

guardian ad litem (“GAL”), the court found shared parenting to be in the best

interests of the children. The court also issued a separate order appointing a

parenting coordinator for a period of 36 months.

The court ordered that Husband would be entitled to claim the

children as dependents for federal income tax purposes. The court ordered Wife to

pay child support to Husband in the amount of $3,334.11 per month ($1,316.61 per

month per child) plus cash medical support of $74.36 per month ($25.72 per month per child) (total: $3476.64 per month). The court also ordered the parties to split

the GAL’s fees, with Wife paying 75 percent and Husband paying 25 percent.

The trial court then found that Wife did not have any attachable

income and had the ability to post a cash bond in the amount of $10,000. Finally,

the trial court found that it was appropriate to order Wife to pay some of Husband’s

attorney fees in the amount of $100,000 due to her “ability to pay, the extended

litigation, and failure to turn over financial documents related to her income and

assets.” June 30, 2023 Divorce Decree.

Law and Analysis

For ease of analysis, we will address the assignments of error out of

order and in combination where necessary.

Personal Jurisdiction

Standard of Review

In his first assignment of error, Husband argues that Wife did not

properly serve him with the complaint and that the trial court accordingly did not

have personal jurisdiction. Where a court lacks personal jurisdiction over a party,

the resulting judgment is void ab initio. Tomcho v. ALTL, Inc., 2018-Ohio-4613,

¶ 18 (8th Dist.). We review a trial court’s decision regarding personal jurisdiction

under a de novo standard of review. Natl. City Bank v. Yevu, 2008-Ohio-4715, ¶ 6

(8th Dist.) citing Lewis v. Horace Mann Ins. Co., 2003 Ohio 5248, ¶ 18 (8th Dist.).

De novo review allows this court to review the assigned error without deference to the trial court’s decision. Thomas v. PSC Metals, Inc., 2018-Ohio-1630, ¶ 12 (8th

Dist.).

Analysis

In his motion to dismiss, Husband alleged that Wife’s process server

served him in New York but only gave him a single piece of paper titled “Summons

of Civil Action.” Per Husband, he did not receive the complaint or any other

documentation from the process server. In her brief in opposition, Wife agreed that

initially the process server only gave Husband the summons. However, a half hour

later, after receiving the full packet, the process server went back and served

Husband with the complete packet.

The trial court scheduled an evidentiary hearing for April 29, 2019.

Neither party provided a transcript for this hearing to this court. “Absent a

transcript of the proceedings or its alternatives, a court will presume regularity and

the validity of judgment of the trial court.” Ali v. Vargo, 2005-Ohio-3156, ¶ 21 (8th

Dist.), citing Ostrander v. Parker-Fallis Insulation, 29 Ohio St.2d 72, 74 (1972).

However, in the instant case, although the transcript was not provided, the trial

court determined that Husband waived his right to an evidentiary hearing.

Per the court’s journal entry, at the outset, the court called on

Husband’s counsel to present his evidence demonstrating improper or incomplete

service. Counsel objected arguing that the burden of proof rested with Wife and that

she must demonstrate proper service first. The trial court attempted to explain the

distinction between the burden of proof and the burden of going forward; however, Husband’s counsel continued to argue with the court and refused to present

Husband’s case. The trial court terminated the hearing and elected to rule on the

motions. As we do not have a transcript, to the extent that the trial court found that

Husband waived his right to a hearing, we must presume regularity in the

proceedings and will presume that the trial court acted appropriately in finding a

waiver.

Out-of-State Service

Husband challenged service, in part, on the grounds that he was

improperly served while out of the State of Ohio. At the time of service, Husband

was on vacation in Niagara Falls, New York with his three children.

When the civil rules governing service are followed, there is a

presumption of proper service. King v. Water’s Edge Condominium Unit Owners’

Assoc., 2021-Ohio-1717, ¶ 25 (8th Dist.). However, this presumption can be rebutted

where the complaining party “presents sufficient evidentiary-quality information

demonstrating that service was not accomplished.” Id. Generally, when a complaint

is filed, the clerk “shall forthwith issue a summons for service upon each defendant

listed in the caption.” Civ.R. 4(A). Service may be made either by certified or express

mail, personal service, or residential service. Civ.R. 4.1(A). Civ.R. 4.3 allows service

of process out of State in the manner prescribed in Civ.R. 4.1(A) to a “resident of this

State who is absent from this State.” Civ.R. 4.3(A) and (B). Civ.R. 4.3 also defines

who may personally serve someone who is outside of the State, i.e., “any person not less than eighteen years of age who is not a party and who has been designated by

order of the court to make personal service of process.” Civ.R. 4.3(B)(2).

A review of the docket reveals that, on Wife’s motion, the court

appointed SACS Consulting & Investigating Services, Inc. and its agent, Roger

McCoy (“McCoy”), as process servers on March 21, 2019, to serve copies of the

complaint for divorce, parenting proceeding affidavit, mutual restraining orders,

and any other relevant documents. Wife also filed instructions for personal service

as required under Civ.R. 4.3(B)(1) and (2). Wife attached an affidavit to her filing

averring that McCoy met the requirements for an out-of-State process server.

Finally, McCoy filed a return of service on March 22, 2019, stating that he personally

served Husband on March 21, 2019, with the summons and complaint, the

mandatory disclosure order, mutual restraining order, and other orders relevant to

the case. The filing also included a certified copy of the trial court’s journal entry

appointing the special process server. The certification was dated March 22, 2019.

Based on the foregoing, we find that the record was sufficient to raise

the presumption of proper out-of-State service of process.

Insufficient Service

In addition to challenging out-of-State service, Husband alleged that

the process server did not serve him with the documents required by the civil rules.

Pursuant to Civ.R. 4, “[a] copy of the complaint shall be attached to each summons.”

Civ.R. 4(B). Because Husband effectively waived his right to a hearing, the only

evidence to challenge the presumption of service is the affidavit attached to his motion to dismiss. In it, Husband alleged that McCoy served him with the summons

only and did not attach the complaint or any of the other court orders listed in the

return of service.

Once the record established proper service, Husband had the burden

of going forward to rebut that presumption. A self-serving affidavit is insufficient

evidence of nonservice. Graham Dealerships, CI v. Chavero, 2008-Ohio-2966, ¶ 12

(5th Dist.). Husband argues that where a defendant submits a sworn statement that

he never received the complaint that is uncontested by the plaintiff, it is a reversible

error for the trial court to ignore it citing Kassouf v. Barylak, 2023-Ohio-314 (8th

Dist.). Preliminary, Wife admitted that her process server initially served Husband

with only the summons, but that within 30 minutes, McCoy received the full set of

documents and properly served Husband. Furthermore, in Kassouf, while the

defendant’s averment of failed service was uncontested, the trial court summarily

denied the motion to dismiss as untimely. In that context, this court found that,

while a hearing is not always required, it was reversible error for the trial court to

deny the motion without a hearing to determine the validity of the defendant’s

statement. Id. at ¶ 24. In contrast, the trial court in this case attempted to conduct

a hearing to address both parties’ claims; however, due to what the trial court called

counsel’s “contumacious” conduct, counsel effectively waived his client’s right to a

hearing.

In the instant case, had the hearing gone forward, the trial court

would have had the opportunity to hear the testimony of both witnesses, weigh their credibility, and determine whether Husband was properly served. See Bank of New

York Mellon v. Maxfield, 2016-Ohio-2990, ¶ 16 (12th Dist.). For instance, Husband

could have further explored the attachments to Wife’s filings, which showed one

document was certified the same day the return of service was filed. As it stands,

the evidence before the trial court amounted to two parties disagreeing about

whether service was accomplished without any additional evidentiary support.

Based on the foregoing, Husband’s first assignment of error is

overruled.

Motion to Disqualify Counsel

In Husband’s second assignment of error, he alleges the trial court

erred when it failed to grant his motion to disqualify Wife’s attorneys.

A trial court has broad discretion when considering a motion to

disqualify counsel. Barnett Mgt. v. Columbia Res. Homeowners’ Assn., 2023-Ohio-

4220, ¶ 11 (8th Dist.). The court similarly has broad discretion to exercise its

“inherent authority to supervise members of the bar appearing before it.” Id., citing

Wynveen v. Corsaro, 2017-Ohio-9170, ¶ 14 (8th Dist.). Accordingly, we review the

trial court’s decision for an abuse of discretion and will only reverse it if the decision

was unreasonable, unconscionable, or arbitrary. Id. at ¶ 12. Further, we are mindful

that disqualification is a drastic measure that should not be used unless absolutely

necessary. Legal Aid Soc. v. W&D Ptnrs. I, LLC, 2005-Ohio-4130, ¶ 17 (8th Dist.)

citing Spivey v. Bender, 77 Ohio App.3d 17, 22 (6th Dist. 1991). Analysis

On January 21, 2020, Wife filed a motion for an independent

psychological evaluation. In the motion, Wife’s counsel asked that both parties

submit to an independent psychologic and custody evaluation to be conducted by

Dr. Farshid Afsarifard (“Dr. Afsarifard”). The firm representing Wife included in

the motion notification that a partner in the firm was representing Dr. Afsarifard in

his role as an expert in an unrelated divorce case. Per the motion, the partner’s

representation was limited to appearing with Dr. Afsarifard at a deposition.

Accordingly, the firm argued there was no conflict of interest. Husband did not file

a response to this motion.

On July 24, 2020, Wife filed a motion to compel Husband’s

compliance with the evaluation. In response, on August 5, 2020, Husband notified

Wife’s counsel via email that he would not waive any conflict posed by the firm

representing both Wife and Dr. Afsarifard. On August 6, 2020, Husband filed a brief

in response to the motion to compel and formerly raised his objection to the dual

representation. The trial court addressed the alleged conflict in its entry granting

Wife’s motion to compel, finding that Husband had

failed to raise an issue of conflict; therefore, to the extent [Husband] has not submitted to date to the evaluation by Dr. Afsarifard based on an alleged conflict, that conflict is waived and [Husband] is again ordered to participate in the evaluation.

Trial Court’s Aug. 7, 2020 Journal Entry. On March 10, 2023, Husband filed a motion to disqualify Dr.

Afsarifard as a custody evaluator in this matter, citing the ongoing litigation in the

other divorce case. Husband also subpoenaed Wife’s father B.T. and his financial

records. On March 13, 2023, the Wife’s firm filed a notice of appearance on behalf

of B.T. On March 14, 2023, Husband filed a motion to disqualify the firm, alleging

there was a conflict of interest posed by the firm representing Wife, B.T., and Dr.

Afsarifard. The parties argued the issues at trial. Husband alleged that Wife’s

counsel representation of Dr. Afsarifard was barred based on this court’s holding in

Smith v. Smith, 2019-Ohio-990 (8th Dist.). The court ultimately found that the

holding in Smith was distinguishable from the facts of this case and that

disqualification of the firm was unwarranted. With respect to any conflict posed by

the firm representing both Wife and her father, the court found that any violation of

due process belonged to Wife noting:

The potential conflict, the potential conflict relates to [Wife’s] attorney representing both a witness and her. So it’s up to – it would be up to her to raise it.

So if there is a potential conflict, I mean, that’s an issue. But apparently they, they’re saying which I would like to see that there’s a waiver on that because it’s his client’s interest, it’s his client’s potential conflict because it’s [Wife’s] attorney that represents both [Wife] and a potential fact witness.

Now [B.T.] is coming in. He will testify, and you will be able to cross- examine him. But at some point he could have an adverse position to your client and at that point it’s my understanding you’re going to then not be [B.T.’s] attorney.

Counsel: Absolutely.

Court: Okay. So I’m going to deny your motion to disqualify . . . . Mar. 14, 2023, tr. 70-71.

The firm subsequently presented the court with the signed consent

forms.

In his brief before this court, Husband argues that Wife’s firm

continued representation of Wife, B.T., and Dr. Afsarifard violated Ohio

Prof.Cond.R. 1.7, which provides:

(a) A lawyer’s acceptance or continuation of representation of a client creates a conflict of interest if either of the following applies:

(1) the representation of that client will be directly adverse to another current client;

(2) there is a substantial risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by the lawyer’s own personal interests.

Ohio Prof.Cond.R. 1.7(a).

Husband, as the party moving for disqualification, bears the burden

of demonstrating that disqualification is necessary. Barnett Mgt. at ¶ 13 citing WFG

Natl. Title Ins. Co. v. Meehan, 2018-Ohio-491, ¶ 24 (8th Dist.). Generally, “a

stranger to an attorney-client relationship lacks standing to complain of a conflict of

interest in that relationship.” Morgan v. N. Coast Cable Co., 63 Ohio St.3d 156

(1992), syllabus. Courts typically do not disqualify an attorney based on conflict of

interest “unless there is (or was) an attorney client relationship between the party

seeking disqualification and the attorney the party seeks to disqualify.” Id. at 159.

The court also recognized, however, that “an attorney’s obligations and responsibilities to a party, including the attorney’s financial, business or personal

interests can, in appropriate circumstances, be a basis for disqualification.” Id. at

160.

Husband argues that the dual representation prevented him from

obtaining necessary information regarding Wife’s income, assets and mental-health

issues. Specifically, the firm’s representation allegedly prevented Husband from

obtaining financial records from B.T. that would establish Wife’s concealment

and/or liquidation of assets during the proceedings. Furthermore, the dual

representation allowed Wife to conceal her mental-health issues that might impact

her ability to properly care for the minor children.

Preliminarily, Wife’s counsel informed the court that it had notified

all clients of the representation and complied with Prof.Cond.R. 1.7(b), which

requires written informed consent and assurance that the lawyer can continue to

provide competent and diligent representation to each client. Prof.Cond.R. 1.7(B)(1)

and (2).1 Secondly, Husband has failed to meet his burden of establishing the need

for disqualification. Husband has not shown that the firm’s clients were directly

adverse to one another, nor has Husband shown that there was a substantial risk

that the firm’s ability to represent each client would be “materially limited” by the

representation. Husband’s concerns about the effect on his ability to gather

evidence does not establish a conflict between the firm’s clients. Additionally, the

1 Prof.Cond.R. 1.7(B)(3) provides additional requirements that did not arise in this

case. record reflects that B.T. complied with subpoenas for his financial records and

Husband had the opportunity to cross-examine him on them. Further, Husband

alleges that Wife’s counsel had a “pecuniary interest” in representing Wife and

therefore had an interest in controlling the testimony B.T. presented at trial. This

claim is not substantiated by the record, and Husband does not cite to the record in

support of this claim. Additionally, Wife fully complied with Dr. Neuhaus’

evaluation. Husband has not indicated what additional mental-health information

he lacked.

Husband again relies on the holding in Smith, 2019-Ohio-990, to

support his argument. Smith is loosely comparable to this case because it involved

an attorney representing a party and a potential fact witness. In Smith, the court

appointed a GAL. The GAL was litigating her own divorce in the same court and was

represented by counsel. Subsequently, the husband in the Smith case obtained a

new lawyer, the same lawyer representing the GAL in her divorce case. The court

immediately noted the conflict and notified the parties that either they could resolve

the custody issues such that the GAL would no longer be needed, the wife could

waive the conflict, or the attorney would have to leave the case. Ultimately, the

custody issues were unresolved, the wife refused to waive the conflict, and the

attorney did not leave the case. The trial court disqualified the attorney.

This court found that disqualification was appropriate because it was

a violation of Prof.Cond.R. 1.7(a)(1) and (2) for counsel to “simultaneously

represent: (1) a client in a domestic-relations proceeding; and (2) the GAL in that domestic relations proceeding in the GAL’s personal matter.” Smith at ¶ 29. The

court recognized that because of the dual representation the GAL’s recommendation

would be tainted. The court noted:

It is conceivable in the case at hand that the GAL’s recommendation regarding Raymond and Karyn’s minor child is adverse to Raymond. It is also conceivable that, should this scenario come to fruition, [the law firm’s] representation of the GAL would be compromised or “weakened.” Additionally, if the GAL’s recommendation regarding the minor child is favorable to Raymond, it creates the appearance that she may be acting favorably toward Raymond’s counsel, who is, of course, her personal counsel in another matter.

Smith at ¶ 20.

Smith is clearly distinguishable from the facts of this case when

comparing the representation of Wife and B.T. Unlike a GAL, B.T. is not a neutral

party. He is Wife’s father and there is an expectation that, whether consciously or

unconsciously, he will be biased in favor of his daughter. Both sides questioned B.T.

and had the opportunity to develop their case through his testimony. Again, B.T.’s

representation was not adverse to his daughter’s. Husband’s argument is that the

dual representation was adverse to him, which again does not merit disqualification

of Wife’s counsel.

Dr. Afsarifard, as an expert witness, was closer to the GAL’s role in

Smith than B.T.; however, his role in this case is still distinguishable. Wife’s counsel

never represented Dr. Afsarifard in a personal capacity, they only represented him

in his role as an expert. Although the representation apparently extended beyond

one deposition, the attorney representing Dr. Afsarifard did not participate in this case. Additionally, there was no evidence that the two divorce cases were connected

such that the representation of Dr. Afsarifard would be compromised by his

testimony in this case nor was there evidence that Wife’s and Dr. Afsarifard’s

interests were directly adverse. Finally, while Dr. Afsarifard was appointed by the

court, he was appointed at Wife’s request. Additionally, Husband had requested the

appointment of his own expert, Dr. Neuhaus, who had extensive access to Wife and

her medical records. Based on the foregoing, Husband lacked standing to challenge

the representation and failed to establish that a conflict existed that necessitated

disqualification of the firm.

Accordingly, Husband’s second assignment of error is overruled.

Distributive Award for Financial Misconduct

In his third assignment of error, Husband argues the trial court

abused its discretion by failing to issue a distributive award to him based on Wife’s

financial misconduct. Husband alleged that Wife committed financial misconduct

when she liquidated funds from her trust accounts, failed to disclose certain

accounts, and failed to completely disclose her monthly expenses and her source of

income.

Pursuant to R.C. 3105.171(E)(4) and (5), a domestic relations court

“may” issue a distributive award, accordingly, the decision whether to compensate

a party for a violation of R.C. 3105.171(E) is reviewed for an abuse of discretion.

Lunger v. Lunger, 2017-Ohio-9008, ¶ 11 (7th Dist.). A distributive award is “any payment or payments, in real or personal

property, that are payable in a lump sum or over time, in fixed amounts, that are

made from separate property or income, and that are not made from marital

property and do not constitute payments of spousal support . . . .” R.C.

3105.171(A)(1). A court may issue a distributive award to compensate a spouse for

the financial misconduct of the other spouse if they, including but not limited to,

dissipate, destroy, conceal, or fraudulently dispose of assets. A.E. v. J.E., 2024-

Ohio-1785, ¶ 28 (8th Dist.), citing R.C. 3105.171(E)(4). Additionally, the court may

issue a distributive award if “a spouse has substantially and willfully failed to

disclose marital property, separate property, or other assets, debts, income, or

expenses.” R.C. 3105.171(E)(3) and (5). The spouse claiming financial misconduct

bears the burden of proof. A.E. v. J.E. at ¶ 28, citing Victor v. Kaplan, 2020-Ohio-

3116, ¶ 138 (8th Dist.). In determining whether to issue a distributive award, “[t]he

trial court must look to the reasons behind the alleged conduct and determine

whether the alleged wrongdoer profited from the activity or intentionally dissipated,

destroyed, concealed, or fraudulently disposed of the other spouse’s assets.” Lunger

v. Lunger, 2017-Ohio-9008, ¶ 12 (7th Dist.).

“A spouse commits ‘financial misconduct’ where he or she ‘engages in

intentional conduct by which he or she either profits from the misconduct or

intentionally defeats the other spouse's interest in marital assets.’” Kaplan, 2020-

Ohio-3116, ¶ 138 (8th Dist.), quoting Rodgers v. Rodgers, 2017-Ohio-7886, ¶ 30

(8th Dist.). In the instant case, the trial court found that the accounts Wife

dissipated were her separate property. Husband did not present any evidence that

he had an interest in those accounts nor that Wife’s conduct disposed of his assets

or affected the value of any marital property. Thus, he has failed to establish that

Wife acted in a way that profits her or intentionally interfered with Husband’s

property rights. Husband also argues that Wife failed to disclose her income and

accounts in order to defeat his claims for spousal and child support. While it was

suggested that Wife had undisclosed accounts, their existence was merely

speculative. The testimony at trial was that Wife’s expenses were paid solely by her

father. The evidence merely established that Wife received money from her father

to support her lifestyle and that she used her trust funds to pay her attorney’s fees.

Accordingly, we cannot say the trial court abused its discretion when it elected not

to issue a distributive award. Husband’s third assignment of error is overruled

Negative Inferences for Withholding Evidence

In his fourth assignment of error, Husband argues that the trial court

abused its discretion when it failed to make negative inferences concerning Wife’s

true income for the purposes of calculating support. A court may make a negative

inference when a party who has control over certain evidence fails, without a

satisfactory explanation, to produce that evidence. Roetenberger v. Christ Hosp. &

Anesthesia Assocs. of Cincinnati, 2005-Ohio-5205, ¶ 21 (1st Dist.). Normally, there

would need to be a strong showing of malfeasance, or at minimum gross neglect,

before approving a negative inference charge in a jury trial. Id. Husband argues that the evidence he gathered shows that B.T. was receiving money from a number

of accounts from which he funneled money to Wife. Accordingly, he alleges, without

proof, that some of those accounts must belong to Wife. Husband’s belief that Wife

held accounts and withheld that information is insufficient to establish Wife had

that evidence and withheld it with purpose to deceive. The trial court did not abuse

its discretion when it failed to make a negative inference with respect to Wife’s

Accordingly, Husband’s fourth assignment of error is overruled.

Shared Parenting and the Parenting Coordinator

In his sixth and seventh assignments of error, Husband challenges

the trial court’s award of shared parenting and the appointment of a parenting

coordinator.

A trial court’s decision granting a shared parenting plan enjoys a

presumption of correctness and is within the sound discretion of the trial court.

Haas v. Bauer, 2004-Ohio-437, ¶ 20 (9th Dist.). Accordingly, we review that

decision for an abuse of discretion. Id. When either parent presents a shared

parenting plan, it is within the discretion of the court to accept it as long as the court

determines the plan is in the best interest of the children. Id. at ¶ 21.

The trial court engaged in a detailed review of the best-interest factors

enumerated in R.C. 3109.04(F). Husband expresses concern about Wife’s mental

health and her various sexual encounters that he uncovered just prior to the divorce

filing. The court addressed those concerns in its decision and found that Wife’s conduct was “fundamentally tied to her mental health.” The court found that with

continued treatment, Wife would be able to communicate better with Husband and

parent the children. Furthermore, the court noted that the parties had participated

in two agreed shared parenting plans, culminating in the shared parenting

agreement in place since 2021. The trial court thoroughly reviewed Wife’s mental-

health history, her behavior just prior to the divorce filing, and other factors. Wife

submitted to psychological and custody evaluations by two experts, but only Wife’s

expert testified at trial. The trial court noted that it had not received all of the records

concerning Wife’s mental health and evaluations. Ultimately, both Wife’s expert

and the court-appointed GAL recommended the shared parenting plan submitted

by Wife. The GAL noted that the couple have a contentious relationship, but

“despite the daggers that they throw at each other, they both have put their children

first throughout this process to make sure that they continue to thrive.” June 21,

2023 tr. 12. Accordingly, the trial court did not abuse its discretion when it ordered

a shared parenting plan.

In addition to ordering a shared parenting plan, the trial court

ordered the appointment of a parenting coordinator for a period of 36 months.

Husband challenges the order, arguing that Wife will not act in good faith and will

use her greater resources to engage in “frivolous fights” against Husband. Further,

Husband argues that the court’s order does not allow for meaningful review because

the trial court has discretion on whether it will hear either party’s objections to the

parenting coordinator’s decisions. Neither of these issues are ripe for judicial review. The record reflects that both parties testified about their difficulties

communicating with one another, Husband claiming that Wife harbored animosity

and hostility towards him, and Wife claiming Husband failed to respond to her

questions through the trial court’s family communication app. The trial court’s

decision to appoint a parenting coordinator was supported by the evidence in the

record. How the parties may conduct themselves with the parenting coordinator is

not something this court can anticipate.

Distribution of Property and Spousal and Child Support

Several assignments of error from both parties challenge the trial

court’s division of property and support orders. For ease of analysis, we will discuss

these issues together.

A trial court is required to create an equal division of property,

however, “‘if an equal division of property is inequitable, the court must divide the

marital property equitably.’” Herrera v. Phil Wha Chung, 2021-Ohio-1728, ¶ 36

(8th Dist.), quoting Neville v. Neville, 2003-Ohio-3624, ¶ 5, citing R.C.

3105.171(C)(1). We review the trial court’s division of marital property for an abuse

of discretion. Id., citing Booth v. Booth, 44 Ohio St.3d 142, 144 (1989).

Preliminarily, the trial court must determine what constitutes marital

property and what constitutes separate property before distributing property in a

divorce proceeding. Id. ¶ 37, citing Comella v. Comella, 2008-Ohio-6673, ¶ 38,

citing R.C. 3105.171(B). “The determination of whether property is marital or

separate is a mixed question of law and fact that will not be reversed unless it is against the manifest weight of the evidence.” Id., citing Kobal v. Kobal, 2018-Ohio-

1755, ¶ 27 (8th Dist.). A court examining the manifest weight of the evidence “weighs

the evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the [finder of fact] clearly

lost its way and created such a manifest miscarriage of justice that the [judgment]

must be reversed and a new trial order.” State v. Thompkins, 78 Ohio St.3d 380,

387 (1997). Once the trial court has characterized the property as marital or

separate, assuming that determination is supported by the manifest weight of the

evidence, “the reviewing court will not disturb the trial court’s distribution of the

property absent an abuse of discretion.” Herrera at ¶ 37, citing Kobal at ¶ 27.

We start with Wife’s seventh assignment of error that challenged the

trial court’s allocation of interests in the marital home. Wife argues that evidence of

Husband’s separate interest in the marital home was insufficiently proven. Further,

Wife alleges that the trial court did not recognize her separate interest in the marital

property acquired by making payments to the mortgage.

A party that claims an asset is separate property has the burden of

proving that claim by a preponderance of the evidence. Rossi v. Rossi, 2014-Ohio-

1832, ¶ 43 (8th Dist.). “Preponderance of the evidence means the greater weight of

the evidence.” Halter v. Dagostino, 2022-Ohio-1069, ¶ 11 (8th Dist.). Separate

property does not lose its identity as separate if it is commingled with marital

property as long as its separate identity can be traced. Rossi at ¶ 43. Therefore, when separate property is commingled with marital property, its traceability

becomes relevant. Lichtenstein v. Lichtenstein, 2020-Ohio-5080, ¶ 21 (8th Dist.).

Prior to the marriage, Husband’s mother and uncle owned the marital

home. In 2002, uncle sold his interest in the property to Husband’s mother and

Husband. Husband introduced the deed of this transfer as proof and testified that

he paid $150,000 for the property. Wife argues that Husband did not prove that he

paid any money for the house and therefore his separate interest was not traceable.

Whether or not Husband actually paid his uncle for the property, the deed

established the transfer occurred prior to the marriage and was sufficient proof. R.C.

3105.171(A)(6)(a)(ii) (“Separate property means all real and personal property and

any interest in real or personal property that is found by the court to be . . . acquired

by one spouse prior to the date of the marriage.”). R.C. 3105.171(H) provides an

exception, noting that “except as otherwise provided in this section, the holding of

title to property by one spouse individually or by both spouses in a form of co-

ownership does not determine whether the property is marital property or separate

property.” (Emphasis added.) R.C. 3105.171(H) Husband therefore established that

he acquired an interest in what became the marital home prior to the marriage.

However, the trial court’s finding that Husband acquired a 50 percent

share of the residence was not supported by the manifest weight of the evidence.

The deed transferred the uncle’s 50 percent share of the property to Husband as an

unmarried man and to Husband’s mother. Since mother already held a 50 percent

interest in the property, the transfer gave Husband a 25 percent interest in the home. The couple acquired a 75 percent interest in the home when they purchased the

remainder of the property after the marriage. Accordingly, the trial court erred

when it found that Husband had acquired a separate 50 percent interest in the

property.

In addition, Wife argues that her father gave her money both during

the marriage and after she filed for divorce that was used to pay the down payment

on the house and the mortgage, giving her a separate interest in the marital property.

However, other than alleging payments, Wife did not provide any evidence that

would allow the trial court to trace her separate interest in the property. Wife failed

to establish that she had obtained a separate interest in the property by a

preponderance of the evidence. Husband, however, only established a separate 25

percent interest in the marital property. Accordingly, Wife’s seventh assignment of

error is sustained as to the trial court’s division of the marital residence.

Wife, in her ninth assignment of error, also challenges the trial court’s

order finding that she had a Nordstrom 401K account that should be split evenly

between the parties. We agree. Wife testified that she did not have a Nordstrom

401K and there was no evidence presented that established the existence of such an

account. Even if, as Husband argues, the trial court rejected Wife’s generalized

denial of the account, the existence of the account still needed to be proven by a

preponderance of the evidence. Furthermore, Wife testified that she worked at

Nordstrom’s from 1999 until 2005. If a Nordstrom 401K existed, the trial court still

needed to determine if any portion of that account was Wife’s separate property. Accordingly, the trial court abused its discretion when it ordered that the Nordstrom

401K be divided equally between the parties. Wife’s ninth assignment of error is

sustained.

In her first assignment of error, Wife challenged the trial court’s

finding that her income was $359,000. In her second and third assignments of

error, Wife argued that the trial court’s income calculation improperly imposed a

duty on Wife to pay spousal and child support and additionally imposed a duty on

B.T. to pay that child and spousal support since Wife had no income other than the

money she received from B.T.

A trial court, at either parties’ request and after the disbursement of

property as marital or separate, “may award reasonable spousal support to either

party.” R.C. 3105.18(B). A trial court has broad discretion to determine whether

spousal support is reasonable, and this court will not reverse that decision absent an

abuse of discretion. Kerkay v. Kerkay, 2024-Ohio-3185, ¶ 61 (8th Dist.). While

there is no formula to determine the amount of spousal support, the trial court is

required “to consider all 14 factors of R.C. 3105.18(C) and ‘not base its determination

upon any one of those factors taken in isolation.’” Id. at ¶ 60.

The record does not reflect that the trial court considered all of the

factors in R.C. 3105.18(C). R.C. 3105.18(C) requires the court to consider

(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code;

(b) The relative earning abilities of the parties; (c) The ages and the physical, mental, and emotional conditions of the parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;

(g) The standard of living of the parties established during the marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;

(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party’s contribution to the acquisition of a professional degree of the other party;

(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;

(l) The tax consequences, for each party, of an award of spousal support;

(m) The lost income production capacity of either party that resulted from that party’s marital responsibilities;

(n) Any other factor that the court expressly finds to be relevant and equitable.

The trial court’s income determination was based on one year of

Wife’s expenses that her father paid. More than a third of that amount, $125,000,

was attorney fees B.T. paid on Wife’s behalf. Wife argued that since she was unemployed the trial court should have imputed her income as full-time minimum

wage. The trial court disagreed, not based on any factor in R.C. 3105.18(C), but on

the fact that Wife had $359,000 “available” to her. The court made this finding

while also acknowledging that Wife was unemployed and that B.T. supplied all of

the money that paid Wife’s expenses. Furthermore, while the trial court

acknowledged that Wife was unemployed since 2005, the record does not reflect

that the court tied its income calculation to Wife’s education, salary, or any other

factor that would determine her income potential. Certainly, there was no evidence

in the record that Wife could earn $359,000 per year.

Finally, the trial court contrasted the fact that Wife lived well beyond

her means, and yet Wife suggested the court impute her income to a full-time

minimum wage job. The trial court did not find Wife’s testimony credible when she

suggested the court should impute a minimum wage income to her. We defer to the

trial court’s finding on Wife’s credibility; nevertheless, there was no evidence that

Wife had any source of income in her own name. Accordingly, in order for the trial

court to order spousal support on this record, the only possible conclusion is that

B.T. would be responsible for paying spousal support to Husband. Therefore, the

award of spousal support was unreasonable and an abuse of discretion.

Wife also does not have $359,000 in income for the purpose of child

support. The child support statute defines income as

(a) For a parent who is employed to full capacity, the gross income of the parent; (b) For a parent who is unemployed or underemployed, the sum of the gross income of the parent and any potential income of the parent.

R.C. 3119.01(C)(10).

“Gross income” however does not include nonrecurring or

unsustainable income or cash flow items, which is defined as “an income or cash

flow item the parent receives in any year or for any number of years not to exceed

three years that the parent does not expect to continue to receive on a regular basis.”

R.C. 3119.01(C)(13)(e) and (14). The trial court abused its discretion when it

considered only one year of expenses, paid by a spouse’s father, that included a

nonrecurring fee, i.e., $125,000 for attorney’s fees, and where there was no evidence

the income would or could continue for any length of time.

B.T. supplemented the couple’s income during the marriage, but

there was no evidence submitted as to how much money he supplied. B.T. testified

that he provided support the entire time, but that it increased over the years as the

family grew. Even so, there was no evidence that B.T. provided yearly support in the

amount of $359,000 for the entirety of the marriage. Nor was there evidence that

B.T. could maintain that level of support for a sustained period of time. Accordingly,

the trial court abused its discretion when it found Wife had an income of $359,000

for child support.

The trial court’s decision is concerning because by classifying B.T.’s

gifts as income, the trial court improperly shifted the responsibility of support to a nonparty who had no legal obligation to support either party. We could not find any

case that applied parental gifts to spouses in this way.

A review of cases where one of the factors was a parent or parents

providing financial assistance to an adult child establishes that the court’s review

these situations on a case-by-case basis. For example, in Buck v. Buck, 2018-Ohio-

3704 (6th Dist.), the wife’s mother gave the couple over $400,000 during the

marriage, the majority of which Wife deposited into the couple’s joint bank account.

Id. at ¶ 27. Because there were marital funds in that account and the couple paid for

a variety of bills from it, the court found that the gifts were not traceable to their

separate origin and were therefore marital property. Id. at ¶ 30.

In Taub v. Taub, 2009-Ohio-2762 (10th Dist.), husband received

money from a trust fund as well as payments from his parents’ personal accounts

during the marriage. The trial court included the money from trust funds when it

calculated husband’s income but did not include gifts from husband’s parents. Id.

at ¶ 52. In that case, the husband was the beneficiary of the trust and received money

directly from his trust funds. The husband in that case did not challenge the trial

court’s findings with respect to the payments from his parents, either their amount

or their sources. The court of appeals did not discuss this calculation but affirmed

the trial court’s income calculation that excluded the parents’ gifts to husband

during the marriage.

Finally, in Zhuravlyov v. Bun, 2020-Ohio-4108 (11th Dist.), the

evidence established that the wife received significant financial assistance from her parents both during the marriage and after the divorce filing. Despite that, when

determining spousal support, the trial court looked at the wife’s education, a

bachelor’s degree in business administration, and current employment, working for

her family’s restaurant for $700 a month, and found that she was voluntarily

underemployed. Based on these and other factors, the trial court imputed the wife’s

income at the level of a full-time minimum wage job. Id. at ¶ 32. The court of

appeals affirmed this finding. Id. Additionally, the court based its spousal support2

order on the couples’ respective incomes and potential employment, ultimately

affirming the trial court’s order that required the husband to pay spousal support.

Nevertheless, the trial court overruled the wife’s argument that the spousal support

should have been increased and ordered for a longer duration. The court found that

it was appropriate to consider the significant financial assistance the wife received

from her parents in determining the appropriate level of spousal support. Id. at ¶ 42.

On the record before us, it was error for the trial court to find that

Wife had an income of $359,000. Accordingly, Wife’s first assignment of error is

sustained. Additionally, her second and third assignments of error that challenge

the effect of the award on B.T. and the child support and spousal support awards are

also sustained. Further, Husband’s fifth assignment of error challenging the trial

court’s child and spousal support calculation is overruled.

2 The wife also challenged an order requiring her to pay child support; however,

the court of appeals did not consider it because the wife did not brief the issue as required by App.R. 16(A)(7). Attorney’s Fees, Bond, and GAL Fees

In his eighth assignment of error, Husband argues that the trial court

abused its discretion when it failed to award him attorney fees and litigation

expenses. The trial court awarded Husband $100,000 in attorney fees. Husband

argues the court should have awarded him his full expenses totaling $388,245.34.

In her sixth assignment of error, Wife argues that the trial court erred in ordering

her to pay attorney’s fees at all.

R.C. 3105.73 governs attorney’s fees in divorce cases, stating

In an action for divorce, dissolution, legal separation, or annulment of marriage or an appeal of that action, 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).

The trial court based its award of attorney’s fees on Wife’s “ability to

pay, the extended litigation, and failure to turn over financial documents related to

her income and assets.” As a result of our decision reversing the trial court’s

determination of Wife’s income and also the division of marital assets, we must

reverse the trial court’s order of attorney’s fees. On remand, the trial court must

reconsider whether attorney’s fees are appropriate and equitable given our findings

here. See Ott v. Ott, 2022-Ohio-2087, ¶ 28 (9th Dist.) (finding that after reversing

the trial court’s rulings with respect to aspects of its marital property distribution, it

was premature to address the appropriate level of other orders out of context with property distribution). Wife’s sixth assignment of error is sustained, and Husband’s

eighth assignment of error is overruled.

For the same reason we must sustain Wife’s fourth and fifth

assignments of error. In the fourth assignment of error, the trial court ordered Wife

to post a $10,000 bond with respect to child support because Wife “has no

attachable income source and has the ability to post a cash bond.” The trial court’s

ability to pay finding was based solely on its calculation of income that we have

reversed. The court also found that the GAL’s fees should be divided with Wife

paying 75 percent and Husband paying 25 percent. The trial court failed to state the

basis for this division and given our findings with respect to Wife’s income, we

sustain Wife’s fourth and fifth assignments of error to allow the court to fashion an

equitable remedy.

Personal Property in the Marital Home

In her eighth assignment of error, Wife argues that the trial court

should have allowed her to obtain her personal property from the marital home.

Wife has not cited to any case law in this section of her brief, nor has she listed the

property in question. An appellate court may disregard an assignment of error if the

party raising it fails to argue the assignment of error separately in the brief as

required by App.R. 12(A) and 16(A)(7). Accordingly, Wife’s eighth assignment of

error is overruled. Right to Claim Children on Federal Income Tax

In her tenth assignment of error, Wife challenges the trial court’s

decision granting Husband the right to claim the children as dependents for federal

tax purposes. The trial court has discretion in determining the allocation of tax

exemptions and will not be overruled absent an abuse of discretion. Baker v.

Deatrick, 2024-Ohio-3058, ¶ 8 (3d Dist.). The court’s discretion is “guided and

limited by R.C. 3119.82.” Id.

When the parties do not agree which parent should claim the children

as dependents, “the court shall consider, in making its determination, any net tax

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

the amount of time the children spend with 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.

Wife testified that she has no income and does not need to pay income

taxes. Wife argues that the trial court’s finding establishes that it recognized that

she did not have any earned income that could be taxed. However, other than a

statement that Wife could have benefited from claiming the children on her tax

return, Wife has not explained how by citation to the record, case law, or other

authority. Accordingly, we disregard this assignment of error as insufficiently

briefed. App.R. 12(A); 16(A)(7). Consequently, it is overruled. Motion to Quash Subpoena for Expert’s Records

In her eleventh assignment of error, Wife argues that the trial court

abused its discretion when it denied her motion to compel Dr. Neuhaus to comply

with a subpoena and in granting Dr. Neuhaus’s motion to quash.

Typically, a dispute over discovery is reviewed under an abuse-of-

discretion standard. However, if the issue involves an alleged privilege, which is a

question of law, our standard of review is de novo. Haile v. Detmer Sons Inc., 2022-

Ohio-2891, ¶ 11 (2d Dist.).

Wife challenged the ability of Husband to redesignate Dr. Neuhaus as

a consulting expert after she participated fully in the doctor’s evaluation for over a

year. When a party hires an expert solely to assist them for the purposes of trial

preparation, the opposing party may not typically discover facts known or opinions

held by that expert, by interrogatories or deposition, when the expert is not expected

to testify at trial. Civ.R. 26(B)(7)(h).

In the instant case, Dr. Neuhaus was identified as Husband’s expert

on January 6, 2020. At that time, he was a testifying expert and was included on

Husband’s subsequent witness lists. Husband also did not provide Dr. Neuhaus’s

expert report by the trial court’s deadline. In April 2021, after the start of the trial,

Husband redesignated Dr. Neuhaus as nontestifying.

There is an exception to the rule that prevents discovery of a non-

testifying expert’s information. A party may access the information “as provided in

Civ.R. 35(B)” or “by showing exceptional circumstances under which, it is impracticable for the party to obtain facts or opinions on the same subject by other

means.” Civ.R. 26(B)(7)(h)(ii). Civ.R. 35(B) applies to a court-ordered examination

under Civ.R. 35(A), which did not occur in this case.

Wife argues that the trial court should not have allowed Husband to

redesignate Dr. Neuhaus as consulting after she fully participated in the evaluation.

Wife, per her brief, participated in several in-depth interviews with Dr. Neuhaus and

submitted to psychological testing over the course of a year, where Dr. Neuhaus

questioned her familial mental health history, her history of past abuse, her medical

history, her sexual history, and other highly sensitive and protected matters. Wife

argues that Husband would not have been entitled to this depth of information.

The trial court found that, “[w]here, as here, the allocation of parental

rights and responsibilities is in dispute, both parents’ physical and mental health are

‘mandatory considerations for the trial court”’ and discoverable. Friedenberg v.

Friedenberg, 161 Ohio St.3d 98, 2020-Ohio-3345, 161 N.E.3d 546, ¶ 35, 39.

We agree with the trial court as to this issue. In Friedenberg, the

majority opinion found that the General Assembly requires “trial courts to consider

the mental and physical health of the parties when determining claims for child

custody and spousal support.” Id. at ¶ 35. The court did recognize that it is still the

best practice that when parties dispute the relationship of specific doctor-patient

communications or other records to the issue of custody or spousal support, courts

should conduct an in camera inspection to resolve those disputes. Id. Preliminarily, we note that the trial court’s order did exhort both

parties to participate fully in the experts’ evaluations. However, the court’s order

did not prevent Wife from requesting a protective order or asking the court to review

requested evidence in camera prior to turning it over to the defense. While the facts

of this case are concerning, because certainly it is problematic that the defense

expert conducted an in-depth examination of Wife, including interviews with service

providers, at any point, Wife could have sought an in camera review or sought to

limit the information Husband received.

Wife also challenged the decision to change Dr. Neuhaus to a non-

testifying expert at the last minute. Generally, it is accepted that the opposing party

is not entitled to the work product of a nontestifying expert. In situations like this,

where a party has participated in an examination for the opposing side’s expert, the

federal courts have engaged in a case-by-case analysis. A common theme suggests

that where the expert’s opinion has become part of the case via deposition,

dissemination of the report directly or through motion, such as a summary

judgment motion, the expert’s work has gone beyond the rules of discovery and is

no longer protected.

See Jordan v. Blount Cty., E.D.Tenn. No. 3:16-cv-122, 2021 U.S. Dist.

LEXIS 271764 (July 27, 2021) (allowing testimony by defense expert by plaintiff

where defense expert had been deposed, expert report disseminated, and defense

relied on report to obtain judgment on certain claims); citing Zvolensky v. Ametek,

Inc., 142 F.3d 438 (6th Cir. 1998) (plaintiff not allowed to present defense expert’s testimony although they participated in the psychological examination, where

expert did not create a report and plaintiff did not depose expert despite a court

order allowing deposition.); Durflinger v. Artiles, 727 F.2d 888 (10th Cir. 1984)

(Plaintiff hired expert, designated him as testifying, then withdrew the designation.

During litigation plaintiff did not disclose any information regarding expert’s

evaluation. The court refused to allow defendants to use expert as a witness finding

defense had circumvented the discovery process by approaching the witness

obtaining the report and then attempting to call him to testify.); R.C. Olmstead, Inc.

v. CU Interface, LLC, 657 F. Supp. 2d 899 (N.D. Ohio 2009) (finding that party

could not depose the opposition’s expert where the expert had been designated as a

trial witness then redesignated as a nontestifying witness after disseminating his

report); Niles v. Owensboro Med. Health System, Inc., Civ. Act. No. 4:09-cv-61,

2011 U.S. Dist. LEXIS 86932, 2011 WL 3439278 (W.D. Ky. Aug. 5, 2011) (testifying

expert who was deposed without objection took the issue out of discovery, thus

opposing party was allowed to present testimony of expert but could not mention

that expert initially worked for the other side as that information would prejudice

the jury).

It appears from these cases, that generally, where an expert was

designated as testifying and then is redesignated as consulting, the opposing party

may only access the expert’s work, where it had entered the record in some manner.

If it has not entered the record, the requesting party needed to meet the

requirements of Civ.R. 26(B)(7)(h)(ii). Here, Dr. Neuhaus was not deposed, did not disseminate a report, and his work was not used to support any dispositive motion.

Accordingly, Wife needed to show there were exceptional circumstances and that “it

[was] impracticable for the party to obtain facts or opinions on the same subject by

other means.” Civ.R. 26(B)(7)(h)(ii). Wife failed to meet this burden. Dr. Afsarifard

conducted similar evaluations on Wife’s behalf and testified at trial. Accordingly,

Wife’s eleventh assignment of error is overruled.

In summary, the trial court’s judgment is reversed in part and the case

is remanded to (1) adjust the award of equity of the marital home to reflect

Husband’s 25 percent separate interest, and equitably divide the 75 percent marital

interest in the home (2) recalculate spousal and child support to make the awards

equitable and just; (3) vacate the award of attorney fees to Husband; (4) vacate the

order splitting an unproven Nordstrom 401K between the parties; (5) adjust the

order splitting the GAL’s fees to make the awards equitable and just; and (6) vacate

the order for Wife to pay a $10,000 bond for support. The trial court’s judgment is

affirmed in part with respect to the decisions to (a) deny Husband’s motion to

dismiss for lack of personal jurisdiction; (b) deny Husband’s motion to disqualify

Wife’s counsel; (c) grant Dr. Neuhaus’s motion to quash the subpoena and deny

Wife’s motion to compel; (d) not issue a distributive award or make negative

inferences for alleged financial misconduct; (e) adopt Wife’s shared parenting plan;

and (f) assign Husband the right to claim the children on his federal income tax

return. We also decline to consider (i) Husband’s challenge to the appointment of

the parenting coordinator because it is not ripe for review and (ii) Wife’s challenge to her ability to obtain personal possessions from the marital home because the

challenge was not supported by adequate case law or citations to the record.

It is ordered that the parties split 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.

___________________________ EMANUELLA D. GROVES, JUDGE

EILEEN A. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR