[Cite as Hill v. French, 2021-Ohio-24.]

COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

COUNTY OF LUCAS 

JASON HILL, : 

 Plaintiff-Appellee/ : 

 Cross-Appellant, No. L-20-1077 

 : 

 v. 

 : 

JANICE FRENCH, 

 : 

 Defendant-Appellant/ 

 Cross-Appellee. : 

 

JOURNAL ENTRY AND OPINION 

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART 

 AND REMANDED 

RELEASED AND JOURNALIZED: January 8, 2021

 

Civil Appeal from the Lucas County Court of Common Pleas 

Domestic Relations Division 

Case No. DR-12-0193 

 

Appearances: 

Jason Hill, pro se, appellee/cross-appellant. 

John V. Heutsche Co., and John V. Heutsche, for 

appellant/ cross-appellee. 

PATRICIA ANN BLACKMON, J.: 

 Defendant-appellant/cross-appellee Janice French (“French”) 

appeals from the judgment of the trial court that granted plaintiff-appellee/cross-
appellant Jason Hill’s (“Hill”) motion to terminate the parties’ shared parenting 

plan, designated him the residential parent of two of the parties’ three children, and 

awarded him attorney fees. Hill submits a cross-assignment of error, to be 

considered in the event that the trial court’s judgment is reversed, in which he 

challenges the trial court’s denial of his motion for recovery of guardian ad litem 

(“GAL”) and expert fees.1 

Having reviewed the record and the controlling law, we affirm the 

order designating Hill the residential parent of the two children. We also affirm the 

awarding of attorney fees to Hill, but we remand for further proceedings as to the 

amount. Additionally, we find the issue raised in Hill’s cross-assignment of error to 

be moot. 

The parties were married and had three children: K.H. (d.o.b. 

February 20, 2008), R.H. (d.o.b. November 23, 2009), and F.H. (d.o.b. May 20, 

2011). Their 2014 divorce decree incorporated a shared parenting plan under which 

Hill had companionship with the children on alternating weekends and 

Wednesdays. The agreement also required the parties to “make certain” that 

parenting time took place and to refrain from disparaging the other parent. 

Following the divorce, French and the children moved into the home 

of the maternal grandparents. However, the parties remained at odds. By late 2017, 

K.H. and F.H. were refusing to visit with Hill. French moved to be designated the 

 1 See R.C. 2505.22. 
residential parent and legal custodian of the children. Hill also moved to be 

designated the residential parent and legal custodian and for an order for French to 

show cause why she should not be held in contempt for interfering with his 

parenting time. 

The court appointed Margaret Beck to serve as guardian ad litem 

(“GAL Beck”) and also appointed psychologist Mark Babula (“Dr. Babula”) to 

evaluate the parties. In July 2018, French filed a motion for an in camera interview 

of the children. The court granted the motion, and a magistrate held the in camera 

interview in August 2018. Several months later, the Lucas County Department of 

Children and Family Services (“LCDCFS”) received a complaint that Hill abused the 

children. By December 2018, the LCDCFS’s investigation was completed, and the 

abuse claim was not substantiated. Also, in late 2018, French filed a petition for a 

civil protection order against Hill on behalf of the children. She withdrew this 

petition, but then filed a motion seeking to require Hill to have supervised visitation. 

This motion was denied. 

In July 2019, following the recusal of the trial judge and magistrate, 

the matter was assigned to a visiting judge. In October 2019, French filed a motion 

for a second in camera interview. The court determined that it would review the 

prior interview in order to determine whether a second in camera interview was 

necessary and held the motion in abeyance. The matter proceeded to trial in 

December 2019. 
Testifying as an independent expert, Dr. Babula stated that he 

interviewed the parents and the children and performed psychological assessments. 

He stated that the children have a positive relationship with French and her parents, 

but the relationship tends to support alignment with French and against Hill, and it 

is inflexible regarding what is right in a given circumstance. French does not enforce 

Hill’s right to parenting time and does not seek solutions to visitation issues. Dr. 

Babula stated that K.H. pressures the other children not to go to visitation with Hill, 

and R.H. receives negative treatment from the family after attending visitation. Dr. 

Babula also stated that Hill is defensive and reacts in ways that aggravate the 

situation. 

Dr. Babula recommended that Hill complete counselling to address 

anger and irritability and to improve his communication skills to better address the 

children’s emotional concerns. He recommended that and that French participate 

in therapy with parenting education. Dr. Babula stated that both parties have 

responsibilities regarding visitation and that French needs to ensure that the 

children understand the need to follow the court’s established rules of visitation. He 

also recommended that Hill have increased weekday visitation with the children and 

alternating weekends. The goal is to build Hill’s interactions with his children for 

more successful parenting time. Then, given Hill’s increasing visitation, “the family 

[would] have an approximately three-month adjustment period to adopt * * * [the] 

recommendations.” After that, if these issues persist and if Hill is still not having at 

least 80 per cent of his parenting time, then Dr. Babula recommended that the court 
designate Hill’s home as the children’s primary residence. This would break the 

rigidity and imbalance that has occurred. Dr. Babula acknowledged that this would 

be stressful, but he stated that generally children adapt to the new living 

arrangement. He had “no specific concerns for [the girls’ to] self-harm” if a change 

of custody occurred. 

GAL Beck testified that French and the children are well-adjusted in 

French’s home, but the maternal parents are negative toward Hill. She testified that 

Hill is appropriate with the children, but he has difficulty engaging with K.H. GAL 

Beck noted that R.H. and F.H. appeared to be integrated into Hill’s home, but K.H. 

does not want them to go to visitation. R.H. receives negative treatment after 

visiting him. 

GAL Beck further testified that French and the maternal 

grandparents essentially exclude Hill from the children’s lives while maintaining 

that they cannot force the children to visit Hill. French does not facilitate or honor 

Hill’s parenting time and also schedules the children in activities that interfere with 

Hill’s visitation. GAL Beck noted that French contacted one of the children’s 

teachers seeking to prevent Hill from volunteering at the children’s school. She 

opined that the behavior of French and the maternal grandparents toward Hill is 

concerning and promotes alienating the children from him. 

GAL Beck initially recommended that the shared parenting plan 

continue but be modified to provide Hill with significantly more time with the 

children, including a continuous four-week period (excluding weekends). In a 
supplemental report, GAL Beck recommended that the shared parenting plan be 

terminated, and French be the residential parent of the children. She recommended 

that Hill and French share equal parenting time over R.H. and F.H., whereas K.H. 

would visit Hill twice a week and alternating weekends with no overnight visitation. 

However, GAL Beck advised the court to permit Hill to petition the court for an 

immediate change of custody if French disrupted Hill’s parenting time in the future. 

Counsellor Jean Cook (“Cook”) testified that she counselled the 

children every other week for eighteen months but was no longer seeing K.H. K.H. 

has adjustment disorder with anger issues. She is currently on a “break” from 

counselling. F.H. has anxiety issues and is treated for dealing with fear of 

abandonment while visiting Hill. R.H. has anger, depression, and anxiety. Cook 

testified that the children have communicated their concerns about being with Hill. 

They are working on feeling safe with Hill, and voicing their concerns while with 

him. Cook stated that she once saw bruising on R.H.’s neck and had a possible risk 

of self-harm, and she also stated that increasing Hill’s parenting time would affect 

the children’s emotional and mental health. 

Britney Cannon (“Cannon”), a social worker with LCDCFS testified 

that in November 2018, LCDCFS received a report that Hill abused R.H. and F.H. 

The abuse claim was not substantiated, however. Cannon testified that she spoke to 

the children who denied Hill had harmed them and “did laugh when the referral was 

reported to them.” K.H. told Cannon that she wished Hill had social skills, but to 

Cannon, K.H. “almost appeared coached.” Cannon also stated that insofar as 
anyone claimed in March 2019 that there were pending abuse allegations against 

Hill, this claim is not true. 

Sylvania Township Police Detective Randall Mull (“Det. Mull”) 

testified that following a request from French, he performed a safety check on Hill’s 

home regarding allegations that Hill hit R.H. in the face with a shoe. Det. Mull saw 

no visible injury or evidence of intentional violence. 

Hill’s aunts and uncle testified to the children’s prior positive 

interactions with Hill’s extended family. They stated that Hill is loving and 

appropriate toward the children. Hill’s aunts testified that K.H. is initially 

standoffish with Hill’s family but eventually enjoys herself, but overall, her joy is 

gone. One aunt stated that as a result of false accusations leveled against him, Hill 

has had to install cameras at his home. She opined that French has used the children 

“as pawns” to hurt Hill and has influenced K.H. and F.H. against him. 

Hill testified he visits with R.H. regularly but has not visited with F.H. 

since early June 2019 and has not visited with K.H. since June or July 2017. He 

stated that the basis of his motion to terminate is French’s ongoing failure to follow 

the shared parenting order and stated that the children are living in a negative and 

anti-father environment. He stated that he had been denied visitation well over one 

hundred times. He stated that French videotapes him when he arrives to pick up 

the children, and K.H. and F.H. refuse to go to visitation, stating that “the law says 

we do not have to go.” He further testified that French does not promote visitation 
or implement any consequences. He stated that French and maternal grandmother 

penalize R.H. for attending visitation with him. 

Addressing the claims that he left the children unattended, he stated 

that he once ran to get the car for them while it was raining. On another occasion, 

he left two of the children at the bottom of an escalator in order to get the third child 

who did not get on the escalator with him and the other two children. He also went 

into a fast food restaurant to get the group’s food while the children were within his 

sight in the nearby car. 

Hill testified that he participated in reunification counselling with the 

children. He also participated in counselling to deal with anger management, 

communication skills, and improvement of his relationship with his daughters and 

to improve his parenting. He stated that if he were designated residential parent, he 

would abide by all orders for French’s visitation, and he would abide by GAL Beck’s 

recommendation that the children have one activity in order to avoid 

overscheduling. He would also alleviate any additional stress through 

videoconferencing with French. 

French testified that she has safety concerns for the children after 

they reported fears of abandonment. She stated that Hill has become aggressive in 

attempting to enforce visitation, and he yells at the children. She maintained that 

the children are afraid and had scratches and marks after returning from visitation. 

On the times she went to visitation, K.H. was very angry when she returned, and 

R.H. “act[s] out” after visitation. French admitted that she records Hill during the 
times that he picks up the children. French also indicated in an emergency motion 

filed April 2019 that there was a pending LCDCFS investigation pending against 

Hill, but no investigation was pending at this time. She acknowledged that the 

children attended visitation during the pendency of the interim order and that she 

transported them, but currently, only R.H. is currently visiting with Hill. French 

maintained that Hill does not understand the children’s fears of abandonment while 

in his care, and she stated that he had left the unattended. 

Maternal grandmother testified that she and French get the children 

ready to visit with Hill but K.H. and F.H. refuse to go. R.H. goes on the visitation 

but, she claimed, has ensuing behavior issues for two days afterward. Maternal 

grandmother admitted that she once had R.H. take a cold shower for this behavior. 

Maternal grandmother also testified that that she and French requested a police 

“safety check” of Hill’s home for reportedly hitting R.H. with a shoe. She also 

claimed that “fleas have come into the house” after visitation. Maternal 

grandmother maintained that Hill seems to be on the “periphery” when he is with 

the children, and that he has become aggressive in attempting to enforce visitation. 

She admitted that children should have a relationship with their father, and she 

claimed that she encouraged the children to do so. She acknowledged sending 

correspondence to the Chief Legal Counsel of the Ohio Supreme Court seeking an 

“intervention” against GAL Beck. 

The trial court determined that French has engaged in a pattern of 

behavior that further alienates the children from Hill and failed to honor the court- 
ordered visitation schedule. It found her in contempt of court for denial of parenting 

time, imposed a 30-day jail sentence with purge conditions, and ordered her to pay 

Hill’s attorney fees. 

The court also concluded that it is in the best interest of the children 

to terminate the 2014 shared parenting order, and it granted both parties’ motions 

to terminate. The court next determined that it is in the best interest of the children 

to designate Hill the residential parent and legal custodian of R.H. and F.H., and 

designed French the residential parent and legal custodian of K.H. The court stated 

that it reviewed the 2018 in camera interview of the children, but found, as a special 

circumstance, that the “minor children have been negatively influenced by [French] 

and [maternal grandmother] and * * * [French] engaged in ongoing behavior to 

influence the children negatively affecting the children’s relationship with [Hill].” 

The court also found that French “has exerted such an influence over the children 

that [they] appear coached in their responses.” The court found that French and 

maternal grandmother’s “behavior alienate[s] the children from [Hill] and has 

influenced their wishes * * *.” The court concluded that a second in camera 

interview would not be helpful or in the children’s best interests. The court observed 

that K.H. has refused to visit with Hill, F.H. is now also refusing to visit Hill, and 

R.H. is “experiencing difficulties at [French’s] home for visiting with [Hill].” The 

court expressed concern that if these “circumstances and the children’s environment 

do not change, * * * the children will continue to be alienated from [Hill].” 

Specifically, the court was concerned that F.H. would also engage in behavior 
exhibited by K.H. resulting in the loss of a relationship with Hill, and that R.H. will 

“experience pressure to discontinue what is now a positive relationship with her 

father.” 

 Additionally, the court also ordered the parties to participate in 

counselling to address their ongoing issues and ordered that any extracurricular 

activities be agreed upon by both parents. Finally, the court ordered the parties not 

to disparage one another and to ensure that the children maintain a relationship 

with both parents and participate in court-ordered visitation. 

FRENCH’S APPEAL 

French assigns the following errors for our review: 

I. The trial court erred as a matter of law and to [French’s] prejudice 

by modifying the prior shared parenting plan and allocating the 

children to different parents against the recommendation of the 

[GAL] and the court appointed psychologist. 

 

II. The trial court erred as a matter of law and to [French’s] prejudice 

by failing to conduct the requested in camera interview. 

 

III. The trial court erred as a matter of law and to [French’s] prejudice 

by an excessive award of attorney fees and expenses. 

Residential Parent / Legal Custodian Determination 

In her first assigned error, French argues that the trial court erred in 

terminating the prior shared parenting plan and determining that Hill should be 

residential parent and legal guardian of R.H. and F.H. She argues that the court did 

not determine that there had been a change in circumstances, the award is against 
the recommendation of the GAL and the court-appointed psychologist, and it is 

erroneous to order a split award. 

 Custody determinations “are some of the most difficult and 

agonizing decisions a trial judge must make.” Davis v. Flickinger, 77 Ohio St.3d 415, 

418, 674 N.E.2d 1159 (1997). Therefore, “trial courts must have wide latitude” in 

their consideration of the evidence. Id. Decisions concerning child custody matters 

rest within the sound discretion of the trial court. Miller v. Miller, 37 Ohio St.3d 71, 

74 (1988). A trial court’s allocation of parental rights and responsibilities rests 

within the sound discretion of the trial court. In re A.P.D., 8th Dist. Cuyahoga No. 

100504, 2014-Ohio-1632, ¶ 10. Specifically, the trial court’s determination of what 

is in the best interest of the child will not be disturbed absent an abuse of discretion. 

Id., citing Drees v. Drees, 3d Dist. Mercer No. 10-13-04, 2013-Ohio-5197, ¶ 20. A 

reviewing court will not reverse a trial court’s decision regarding child custody 

absent an abuse of discretion. Masters v. Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d 

665 (1994). An “abuse of discretion” connotes more than an error of law or 

judgment; it implies that the court’s attitude is unreasonable, arbitrary or 

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983). 

In applying abuse of discretion review here, we are mindful that 

“[w]hile a trial court’s discretion in a custody modification proceeding is broad, it is 

not absolute, and must be guided by the language set forth in R.C. 3109.04.” Miller 

at 74. Where an award of custody is supported by a substantial amount of credible 
and competent evidence, such an award will not be reversed as being against the 

weight of the evidence by a reviewing court. Bechtol v. Bechtol, 49 Ohio St.3d 21, 

550 N.E.2d 178 (1990), syllabus. 

Turning to French’s argument that the trial court erred in failing to 

determine that there had been a change in circumstances before it terminated the 

shared parenting order, we note that the trial court did specifically find that French 

and maternal grandparents manifested negative attitudes about Hill and did not 

facilitate a positive relationship with him. The court also found that French engaged 

in behavior that rewarded the children for not visiting with Hill. In essence, the trial 

court concluded that the children had been alienated from Hill, and that a change of 

circumstances had occurred. 

In any event, the Ohio Supreme Court recently held in Bruns v. 

Green, Slip Opinion Nos. 2019-1028 and 2019-1178, 2020-Ohio-4787, that the 

procedures for terminating a shared parenting plan are distinct from the procedures 

for modifying a shared parenting plan, and do not require the trial court to also find 

a change in circumstances before changing the designation of residential parent and 

legal custodian. Id. at ¶ 21. The Bruns Court held that in order to terminate a shared 

parenting plan, the court must follow the framework of R.C. 3109.04(E)(2)(c). This 

statute provides the procedures for terminating a shared-parenting decree that 

includes a shared-parenting plan and states: 

The court may terminate a prior final shared parenting decree that 

includes a shared parenting plan * * * upon the request of one or both 
of the parents or whenever it determines that shared parenting is not 

in the best interest of the children. 

 Then, if the court terminates a shared-parenting decree, R.C. 

3109.04(E)(2)(d) provides: 

Upon the termination of a prior final shared parenting decree under 

division (E)(2)(c) of this section, the court shall proceed and issue a 

modified decree for the allocation of parental rights and 

responsibilities for the care of the children under the standards 

applicable under divisions (A), (B), and (C) of this section as if no 

decree for shared parenting had been granted and as if no request for 

shared parenting ever had been made. 

R.C. 3109.04(F) sets forth the relevant factors that are to be 

considered in determining the best interests of a child in relation to the modification 

of shared parenting plans and provides: 

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

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

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

to the allocation of parental rights and responsibilities concerning the 

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

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

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

child’s best interest; 

(d) The child’s adjustment to the child’s home, school, and community; 

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

situation; 

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

parenting time rights or visitation and companionship rights; 

(g) Whether either parent has failed to make all child support 

payments, including all arrearages, that are required of that parent 

pursuant to a child support order under which that parent is an obligor; 
(h) * * *; 

(i) Whether the residential parent or one of the parents subject to a 

shared parenting decree has continuously and willfully denied the 

other parent’s right to parenting time in accordance with an order of 

the court; 

(j) Whether either parent has established a residence, or is planning to 

establish a residence, outside this state. 

The record demonstrates that the trial court expressly considered the 

factors listed in R.C. 3109.04(F)(2). In addition, the trial court concluded that: 

26. [Hill] has missed court ordered visitation with [K.H. and F.H.] and 

this Court finds that [French] and maternal grandparents influence the 

children’s refusal to visit with [Hill] and positively reinforce this 

behavior with their actions. [French] has not assisted for required 

[K.H. and F.H.] to visit with [Hill] and they have missed regularly 

scheduled weekday and weekend visitation with [Hill] as well as 

Holiday visitation. * * * 

 

28. [GAL Beck] provided credible testimony that she has observed the 

children with [Hill in his home and he] was appropriate. * * * [He] 

bought a Nintendo Switch to get [K.H.] out of her bedroom and 

engaged with [him] and her sisters. * * * [t]his did work and led to 

[K.H.] playing with her sisters and then with neighbors and sisters in 

outside activities. 

 

29. [GAL Beck] provided credible testimony that [K.H.] would not eat 

or drink at [Hill’s] house and brought her own food[.] [GAL Beck] 

testified that she has concerns should [K.H.] be forced to spend 

overnights at [Hill’s] at continue to engage in behavior that would harm 

her health. 

 

30. [GAL Beck] provided credible testimony that she observed [R.H. 

and F.H.] to be integrated into [Hill’s] home and there are no issues 

concerning [them]. 

 

31. [GAL Beck] provided credible testimony and stated in her report 

that [French’s] and grandparents’ behavior toward [Hill] is concerning 

and that it promotes alienating the children from [him]. 

 
32. [French] testified that [R.H.] currently goes for visitation with 

[Hill], but [K.H. and F.H.] do not. [French] further testified that the 

children did go to visits when she transported them * * * under an 

interim order, but that she did not continue to transport after the 

interim order was discontinued. * * * The Court finds that [French] 

did have the means and opportunity to facilitate visits between [Hill] 

and the children by dropping them off* * *, and that [French] has not 

done all she can to facilitate visits. 

* * * 

44. The Court is concerned that if circumstances and the children’s 

environment do not change that the children will continue to be 

alienated from [Hill]. Specifically, that [FH,] will engage in behavior 

now being exhibited by [K.H.] an, resulting in [F.H.] having no 

relationship with [Hill] and that [R.H.] will experience pressure to 

discontinue what is now a positive relationship with [Hill]. 

45. * * * [French] has engaged in a pattern of behavior that further 

alienates the children from [Hill]. [French] has failed to honor the 

current court ordered visitation schedule and based upon her behavior, 

the Court finds that she is less likely to honor court ordered visitation 

in the minor in the future. * * * 

Ohio Revised Code Section 3109.04 states that in determining the 

allocation of parental rights and responsibilities or in modifying a prior 

court order allocating parental rights and responsibilities that the court 

shall not modify a prior court order unless it finds that a change of 

circumstances has occurred and that the modification is in the best 

interests of the minor children. In determining “best interests” the 

court shall consider [the factors set forth in R.C. 3109.04(F)]. 

After review of the aforementioned findings and Ohio law, a change of 

circumstances has occurred in this case which warrants modification of 

the shared parenting plan and it is in the best interests of the minor 

children that the current shared parenting plan of the parties be 

terminated. Further, any potential harm to the minor children as a 

result of the termination is outweighed by the benefit of the 

termination and modification of the visitation schedule. 

The trial court also observed that once the interim visitation order 

ended, French stopped bringing the children to visitation, and she maintained that 
she had no power to enforce it. On this record, the trial court properly considered 

and applied the correct legal standard. Having reviewed the record, we find 

competent and credible evidence to support the court’s order. Green v. Richards, 

6th Dist. Lucas No. L-11-1099, 2012-Ohio-614. Moreover, being mindful of our 

standard of review, we cannot say that the trial court’s decision to terminate the 

revised shared-parenting plan was unreasonable, arbitrary, or unconscionable or 

that the court abused its discretion. 

French next complains that the trial court’s order does not comport 

with the recommendations made by Dr. Babula and GAL Beck. The record indicates 

that Dr. Babula recommended that the children remain with French during a threemonth “adjustment period” during which Hill would have increased visitation. 

However, Dr. Babula advised that “if [French] is unable to make them follow the 

rules, they need to be with [Hill]. Similarly, GAL Beck opined that the children 

should remain with French but if French continued to thwart visitation, then Hill 

should be permitted to immediately petition the court for a change of custody. Both 

of these witnesses expressed concern that French would continue to fail to promote 

or encourage visitation and/or alienate the children and from Hill and both 

witnesses asked the court to revisit the issue of residential parent/ legal custodian 

in that event. Here, the court found that French engaged in “a pattern of behavior 

that alienates the children from [Hill].” The court also concluded that French has 

failed to honor the visitation schedule and is unlikely to honor it in the future, and 

that she and the maternal grandmother alienated the children from Hill through 
negativity towards him. The court also expressed concern that if the “circumstances 

of the children’s environment do not change [they] will continue to be alienated 

from [Hill]. Specifically, [F.H.] will engage in behavior now being exhibited by 

[K.H.] * * * and [R.H.] will experience pressure to discontinue what is now a positive 

relationship” with Hill. The court determined that in light of the increasing 

antagonism and parental alienation, the best interest required that Hill to be 

deemed residential parent and legal custodian of F.H. and R.H. On this record, and 

given the court’s findings, its decision is compatible with the views manifested by 

Dr. Babula and GAL Beck. 

Finally, French asserts that the trial court erred in ordering a split 

parenting decision that renders her the residential parent and legal custodian of 

K.H., and renders Hill the residential parent and legal custodian of F.H. and R.H. 

However, we note that such “split parental rights” orders are not impermissible 

under Ohio law. See Pauly v. Pauly, 80 Ohio St.3d 386, 388, 686 N.E.2d 1108 

(1997); Beckley v. Beckley, 90 Ohio App.3d 202, 628 N.E.2d 135 (2d Dist.1993); 

Vanest v. Vanest, 9th Dist. Summit No. 28498, 2017-Ohio-9302, ¶ 5. 

Here, the trial court determined that GAL Beck “provided credible 

testimony that she observed [R.H. and F.H.] to be integrated into [Hill’s] home and 

there are no issues concerning [them].” The court also determined that K.H. “now 

pressures the other two younger children not to go with [Hill] for parenting time and 

further testimony indicates that [R.H. has received negative treatment upon 

returning from visits with [Hill].” The court found that Hill has missed court 
ordered visitation after French and the maternal grandparents “influence[d] the 

children’s refusal to visit with [Hill] and positively reinforce this behavior with their 

actions.” We find no abuse of discretion as to this issue. 

The first assigned error is without merit. 

 No Second In Camera Interview 

French next argues that the trial court erred in refusing to conduct a 

second in camera interview of the children. 

The denial of a successive request for an in camera interview will be 

reviewed for an abuse of discretion. Caldwell v. Caldwell, 12th Dist. Clermont Nos. 

CA2008-03-021 and CA2008-02-019, 2009-Ohio-2201, ¶ 17. 

An in camera interview is governed by R.C. 3109.04(B), which 

provides in relevant part as follows: 

In determining the child’s best interest for purposes of making its 

allocation of the parental rights and responsibilities for the care of the 

child and for purposes of resolving any issues related to the making of 

that allocation, the court, in its discretion, may and, upon the request 

of either party, shall interview in chambers any or all of the involved 

children regarding their wishes and concerns with respect to the 

allocation. * * * 

(b) The court shall first determine the reasoning ability of the child. If 

the court determines that the child has sufficient reasoning ability to 

express the child’s wishes or concerns with respect to the allocation, it 

then shall determine whether, because of special circumstances, it 

would not be in the best interest of the child to determine the child’s 

wishes and concerns with respect to the allocation. If the court 

determines that, because of special circumstances, it would not be in 

the best interest of the child to determine the child’s wishes and 

concerns with respect to the allocation, it shall not determine the child’s 

wishes and concerns with respect to the allocation and shall enter its 

written findings of fact and opinion in the journal. If the court 
determines that it would be in the best interests of the child to 

determine the child’s wishes and concerns with respect to the 

allocation, it shall proceed to make that determination. 

 

(c) The interview shall be conducted in chambers, and no person other 

than the child, the child’s attorney, the judge, any necessary court 

personnel, and, in the judge’s discretion, the attorney of each parent 

shall be permitted to be present in the chambers during the interview. 

In Saleh v. Yassen, 8th Dist. Cuyahoga No. 108689 2020-Ohio-2719, 

this court noted that a trial court is statutorily mandated to conduct an in camera 

interview when requested to do so by a party. Multiple interviews of a child are not 

prohibited. Thompson v. Cannon, 12th Dist. Butler No. CA2015-02-003, 2015-

Ohio-2893, ¶ 24; Caldwell v. Caldwell, 12th Dist. Clermont Nos. CA2008-03-021 

and CA2008-02-019, 2009-Ohio-2201. 

However, a second in camera interview is not mandated when 

requested by a party. See Hammond v. Hammond, 1st Dist. Hamilton No. 180292, 

2019-Ohio-1219, ¶ 22. Rather, the statute does not impose an unlimited duty on the 

trial court to perform successive interviews of the same child in a single proceeding 

for modification of a custody degree, even if requested by a party. Id. 

In Pettry v. Pettry, 20 Ohio App.3d 350, 486 N.E.2d 213 (8th 

Dist.1984), this court concluded that “if the child’s unwillingness to visit the 

noncustodial parent is the result of influence by the custodial parent, a mere 

parroting of the custodial parent’s wishes, or a result of lack of knowledge or 

understanding due to the child’s age or not having known the noncustodial parent, 

the child’s wishes and fears will be strongly discounted.” Id. at 352-353. 
In this matter, the trial court advised the parties that it would review 

the August 2018 in camera interview that was recorded. The court also advised the 

parties that “normally, the court would not require children to come back and talk 

to the court again,” and that the in camera interview does not generally allow the 

“asking children specific factual situations because that is not what happens in an 

in-camera.” GAL Beck noted that the court could review the earlier in camera 

interview and stated that she would “hate to put the children through anymore.” (Tr. 

12.) After that, the court informed the parties that if the evidentiary hearing 

produced additional information that caused the court to believe that a second in 

camera interview would be helpful, then it would address the issue again at that 

time. 

Later, following the hearing, the court found as follows: 

43. The Court has reviewed the in camera [interview] conducted with 

the children [in August 2018] and the wishes of the children as required 

by [R.C. 3109.04(B)(1) and (2)]. However, based upon the testimony 

presented to the Court, the Court finds that special circumstances exist 

and that should be considered in determining the best interests of the 

minor children as the minor children have been negatively influenced 

by [French] and grandmother regarding [Hill] and their relationship 

with [him. French] has engaged in ongoing behavior to influence the 

children negatively affecting the children’s relationship with [Hill. 

French’s] and grandmother’s behavior alienate the children from [Hill] 

and has influenced the children’s wishes regarding their relationship 

with [Hill. K.H.] is currently alienated from [Hill] and [F.H.] is 

engaging in behavior that will lead to alienation from [him]. The Court 

finds that [French] has exerted such an influence over the children that 

the children appear coached in their responses. The Court does not 

find that a second [in camera interview] of the children would be 

helpful to the Court in the best interests of the children. 
In accordance with the foregoing, the trial court determined that a 

second in camera interview was not warranted because the court and GAL Beck and 

the court determined that coaching had occurred. We find no abuse of discretion. 

Within the sound exercise of its discretion, the court did not err in finding that an 

additional in camera interview would not be helpful. The court reviewed the 

children’s statements from the first interview but after its hearing, it determined that 

the children’s statements were the result of the parental alienation and the negativity 

toward Hill coming from French’s home. Moreover, the abuse claims raised after 

the first in camera were not substantiated and social worker Cannon stated that the 

children “laughed” when the referral was reported to them. Applying our standard 

of review, we find no abuse of discretion. 

 French insists that an abuse of discretion occurred herein, and she 

cites to Schottenstein v. Schottenstein, 10th Dist. Franklin No. 00AP-1088, 2001-

Ohio-3987. In that case, the reviewing court noted that two interviews had already 

occurred, but it determined that the magistrate’s interview was not sufficient and 

that the court should have spoken with the children regarding their wishes in 

relation to a contempt finding against the mother. We find Schottenstein

inapplicable here. Insofar as there were intervening events between the August 

2018 in camera interview and the 2019 request for a second interview, we note that 

the abuse claim lodged with LCDCFS was unsubstantiated, French’s request that the 

police conduct a wellness check for a claim of injury to one of the children did not 

yield evidence of abuse, and French ultimately dismissed her petition for a civil 
protection order. Further, the trial court here conducted a full trial and heard 

testimony regarding negativity toward and exclusion of Hill. The court also learned 

that K.H. was influencing the younger children not to visit, and that R.H. was 

experiencing negative consequences after visiting with Hill. The court also found 

that the children appeared “coached in their responses,” so a second in camera 

interview “would not be helpful to the Court or in the best interests of the children.” 

The record presented in this particular matter fully supports the trial court’s 

decision to forgo an additional in camera interview. Bearing in mind our standard 

of review, we find no abuse of discretion in this matter. 

Finally, French maintains the trial court abused its discretion in 

delaying its ruling on this issue because that impacted her trial strategy. However, 

the court informed the parties at the start of trial that it was taking the matter under 

advisement, presumably so they could plan for either outcome. At this time, the 

parties also heard from GAL Beck who did not endorse a second in camera interview. 

Moreover, by presenting testimony from Cook, French, and the maternal 

grandmother, French’s trial counsel elicited testimony regarding the wishes and 

concerns of the children, perhaps in anticipation of an adverse ruling. In any event, 

R.C. 3105.04 plainly requires the court’s analysis to focus upon the best interests of 

the children. The trial court took a measured approach and properly analyzed the 

issue with regard to whether it is in the best interest of the child to determine the 

child’s wishes and concerns as set forth in R.C. 3109.04. 

This assigned error is without merit. 
Attorney Fees 

French next argues that the trial court erred in awarding Hill $18,145 

for attorney fees in this matter. She maintains that the court failed to consider her 

ability to pay and failed to consider that Hill caused the majority of the debt to be 

incurred. She also argues that the court erred insofar as it awarded attorney fees for 

the contempt motion yet granted him his entire fee bill. She also disputes individual 

items on the bill. 

We note that the trial court ruled that Hill “has incurred attorney fees 

in the amount of $18,145 to pursue his motions in contempt.” 

In Sagan v. Tobin, 8th Dist. Cuyahoga No. 86792, 2006-Ohio-2602, 

this court noted: 

It is well-settled under Ohio law that a minor’s custodial parent must 

affirmatively compel, not merely encourage, visitation with a parent. 

Newhouse [v. Toler (Nov. 20, 1997), Cuyahoga App. No. 71834, 1997 

Ohio App. LEXIS 5192]; Montgomery v. Montgomery, Scioto App. No. 

03CA2925, 2004-Ohio-6926; Caldwell v. Caldwell, Galia App. No. 

02CA17, 2003 Ohio 1752; Ware v. Ware, Warren App. No. CA 2001-

10-089, 2002-Ohio-871. 

Id. at ¶ 37. 

 The Sagan Court also observed that the award of attorney fees is 

within the discretion of the court. Id. at ¶ 45. The court retains discretion “to include 

reasonable attorney fees as part of the costs taxable to a party, whom the court has 

found guilty of civil contempt.” Badertscher v. Badertscher, 9th Dist. Wayne No. 

14AP0019, 2015-Ohio-2189, ¶ 20, quoting Willett v. Willett, 9th Dist. Summit No. 
22167, 2005-Ohio-342, ¶ 12, citing White v. White, 9th Dist. Wayne No. 2525, 1990 

Ohio App. LEXIS 899, 1990 WL 27172, ¶ 3 (Mar. 7, 1990). 

In Villa v. Villa, 8th Dist. Cuyahoga No. 72709, 1998 Ohio App. 

LEXIS 2171 (May 14, 1998), this court also observed: 

Neither the common law nor R.C. 3105.18(G) require that the Wife’s 

ability to pay be considered. * * * The attorney fees are not additional 

support, but a cost incurred in the contempt action. It would be unfair 

to require appellee to expend her own funds to enforce [a court order] 

when appellant willfully failed to comply. 

 Similarly, in Bakhtiar v. Saghafi (In re Saghafi), 8th Dist. Cuyahoga 

No. 107173, 2019-Ohio-1363 this court also observed that: 

“Evidence of the parties’ ability to pay, however, is not required when 

awarding attorney’s fees incurred for bringing a contempt motion.” 

Sagan v. Tobin, 8th Dist. Cuyahoga No. 86792, 2006-Ohio-2602, ¶ 52, 

citing Villa v. Villa, 8th Dist. Cuyahoga No. 72709, 1998 Ohio App. 

LEXIS 2171 (May 14, 1998). 

Id. at ¶ 13. Accord Sagan v. Tobin, 8th Dist. Cuyahoga No. 86792, 

2006-Ohio-2602, ¶ 52. 

In this matter, we find no abuse of discretion in awarding attorney 

fees to Hill. The record demonstrates that, apart from the time of the interim order, 

Hill was unable to visit with K.H., and his visitation with F.H. was also diminishing. 

Both girls told him that according to the law, they did not have to visit. French did 

not facilitate visitation after the termination of the interim order. Additionally, R.H. 

experienced negative reactions after from complying with visitation. The court 

found considerable evidence of parental alienation and negativity directed at Hill by 

French and her family. The record also indicates that Hill’s attorney charged $200 

per hour which the court found to be reasonable. On this record, we cannot say that 
the hourly rate is unreasonable or that an award of attorney fees to Hill was an abuse 

of discretion. 

As to French’s claim that the court did not consider her ability to pay, 

we find no error under Sagan. With regard to her claim that the majority of the fees 

were the result of Hill’s conduct, the trial court determined that his claims were 

meritorious. 

This portion of French’s assigned error is without merit. 

Turning to the issue of the total amount of the fee award, the court 

determined that Hill “incurred attorney fees in the amount of $18,145.00 to pursue 

his motions in contempt.” French complains that this amount is erroneous because 

it encompasses Hill’s total attorney fee expenditure, and not simply matters related 

to contempt. French also complains that the award amount reflects duplicative 

billing items and includes items referencing matters before April 2019. Hill 

maintains that recovery of the entire fee award is appropriate because the contempt 

motion and the motion to terminate the shared parenting plan share common core 

facts. Hill also argues that French waived the issue of the reasonableness of the fees 

because her trial counsel did not cross-examine attorney Hutchinson. However, Hill 

acknowledges that a remand may be necessary with regard to a potentially 

duplicative bill or further clarification of the court’s order. 

“[I]n appeals of civil cases, the plain error doctrine is not favored and 

may be applied only in the extremely rare case involving exceptional circumstances 

where error, to which no objection was made at the trial court, seriously affects the 
basic fairness, integrity, or public reputation of the judicial process, thereby 

challenging the legitimacy of the judicial process itself.” Goldfuss v. Davidson, 79 

Ohio St.3d 116, 122-123, 679 N.E.2d 1099 (1997). See also Bawab v. Bawab, 8th 

Dist. Cuyahoga No. 96217, 2011-Ohio-5256, ¶ 29. 

Applying this doctrine, we recognize that the court awarded Hill 

attorney fees for his contempt motion, yet it granted him recovery of his entire fee 

bill. Hill defends the award on the basis that the contempt motion and motion to 

terminate the shared parenting plan share common core facts and that the award is 

proper under R.C. 3105.73(B). Nonetheless, Hill concedes that a remand may be 

necessary in order for the trial court to clarify its ruling. Having reviewed the journal 

entry, we note that the court referenced French’s contempt in awarding attorney fees 

and did not reference R.C. 3105.73(B). Additionally, it lacks sufficient detail to 

support Hill’s interpretation. Accordingly, the provision regarding the attorney fee 

total is reversed and remanded for further proceedings. French’s specific objections 

to the award are therefore moot. 

This portion of the assigned error is well-taken. 

HILL’S CROSS-ASSIGNMENT OF ERROR 

For his conditional assignment of error, Hill asserts the following 

cross-assignment of error: 

The trial court abused its discretion in not awarding [him] the GAL fees 

and court appointed psychologist fees which he incurred. 

R.C. 3105.73(B) states: 
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. 

In O’Malley v. O’Malley, 8th Dist. Cuyahoga No. 98708, 2013-Ohio5238, this court recognized that “[g]uardian ad litem fees, expert fees, and attorney 

fees are ‘litigation expenses’ under R.C. 3105.73.” Id. at ¶ 87. 

Inasmuch as this court is remanding on the issue of Hill’s attorney fee 

total, we likewise find this issue to be moot, as the trial court will revisit the issue of 

attorney fees and litigation expenses. 

Judgment is affirmed in part, reversed in part, and remanded for 

further proceedings consistent with this opinion. 

For the forgoing reasons, we find that substantial justice has not been 

done the complaining party as to the amount of the attorney fees awarded, but the 

matter is otherwise affirmed and remanded. 

It is ordered that appellee and appellant share the costs herein taxed. 
A certified copy of this entry shall constitute the mandate pursuant to App.R. 

27. See also 6th Dist.Loc.App.R. 4. 

MARY J. BOYLE, A.J. ______________________ 

 Administrative Judge 

PATRICIA ANN BLACKMON, J., ______________________ 

 Judge 

 

EILEEN A. GALLAGHER, J., ______________________ 

CONCUR Judge 

(Sitting By Assignment: Mary J. Boyle, A.J., Patricia Ann Blackmon, J., Eileen A. 

Gallagher, J., of the 8th District Court of Appeals) 

 
KEYWORDS 

R.C. 3109.04; termination of shared parenting plan; in camera interview; 

contempt; attorney fees. 

Trial court did not abuse its discretion in terminating shared parenting plan and 

designating father residential parent and custodial guardian of two of parties’ three 

children; trial court did not abuse its discretion in declining to conduct a second in 

camera interview before terminating shared parenting plan; trial court did not err 

in awarding father attorney fees for mother’s contempt, but matter was remanded 

where contempt attorney fee award reflected total fee bill.