[Cite as Haun v. Haun, 2024-Ohio-1526.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY

SHARLA R. HAUN,

Plaintiff-Appellant,

- vs -

GREG R. HAUN,

Defendant-Appellee.

CASE NO. 2023-P-0049

Civil Appeal from the

Court of Common Pleas, 

Domestic Relations Division

Trial Court No. 2013 DR 00448

O P I N I O N

Decided: April 22, 2024

Judgment: Affirmed in part, reversed in part, and remanded

Sharla R. Haun, pro se, 439 Glacierview Drive, Youngstown, OH 44509 (PlaintiffAppellant).

Joseph G. Stafford and Nicole A. Cruz, Stafford Law Co., L.P.A., North Point Tower, 

1001 Lakeside Avenue, Suite 1300, Cleveland, OH 44114 (For Defendant-Appellee).

MATT LYNCH, J.

{¶1} Plaintiff-appellant, Sharla R. Haun, appeals from the Portage County Court 

of Common Pleas, Domestic Relations Division’s, denial of her motions to modify spousal 

support, child support, and the denial of her request for attorney fees in relation to 

contempt. For the following reasons, we affirm in part, reverse in part, and remand for 

further proceedings consistent with this opinion.

{¶2} The parties were married in 1999 and had two children together, born in 

2001 and 2003. Sharla filed a complaint for divorce in 2013. The final divorce decree, 
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which included the parties’ separation and settlement agreement, and shared parenting 

plan, was issued on November 3, 2014.

{¶3} On February 12, 2016, Sharla filed a Post Decree Motion to Modify Child 

Support and Spousal Support, due to “a substantial change in circumstances.” This was 

opposed by Greg.

{¶4} Sharla filed a Motion for Contempt on August 23, 2017, in part alleging that 

Greg failed to comply with the divorce decree/settlement agreement in relation to the 

children’s 529 college savings accounts.

{¶5} Hearings were held on the motions in April and October of 2017 and 

October 2018. Therein, the parties provided testimony and evidence on their living 

arrangements and expenses relating to the children, as well as their incomes.

{¶6} On November 28, 2018, the trial court issued a Judgment Entry in which it 

denied Sharla’s motions. Sharla appealed on December 21, 2018. While that appeal 

was pending, the trial court issued May 2, 2019 Findings of Fact and Conclusions of Law.

{¶7} On appeal, this court reversed the lower court on several grounds. First, as 

to the award of child support, we held that the lower court failed to follow the requirements 

of R.C. 3119.79 and ordered that, on remand, it must modify the support to comply with 

the child support worksheet unless it determines that the amount would be unjust or not 

in the best interest of the children. Haun v. Haun, 11th Dist. Portage No. 2018-P-0108, 

2019-Ohio-5408, ¶ 14. It also found that the court erred in basing its child support award 

on a finding relating to Sharla’s need for support rather than the children’s needs and 

standard of living. Id. at ¶ 22-24. As to the award of spousal support, this court held that 

“the trial court here erred by relying solely on [Sharla’s] need for spousal support,” did not 
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reference other necessary factors, and this court could not “ascertain whether it 

considered them.” We remanded for the court to “consider the requisite statutory factors.” 

Id. at ¶ 51-52. Finally, as to the issue of contempt, we held that the trial court erred in 

considering whether the alleged contempt was “willful” and that the undisputed evidence 

showed the children’s college savings accounts were underfunded. Id. at ¶ 60 and 64. 

We held that the trial court “shall hold Greg in contempt” for failing to adequately fund the 

accounts. Id. at ¶ 66. In response to a motion for reconsideration, this court recognized 

its opinion did not address the May 2, 2019 findings of fact and conclusions of law, but 

observed that they were not included on the certified copy of the docket before this court.

{¶8} The lower court held a hearing on remand on December 16, 2020. 

Following that hearing, a new judge took over the case and the continuation of the hearing 

was held on June 12, 2023. 

{¶9} At the commencement of the December 16 hearing, the court inquired 

whether the parties objected to its consideration of the prior hearing transcripts. Sharla’s 

counsel indicated that he believed the court was required to consider this testimony and 

had no objection to consideration of previous exhibits. Greg’s counsel also indicated in 

his opening statement that he had moved for the court to “adopt the prior testimony” to 

avoid a “rehash” of testimony.

{¶10} Greg testified that he is a physician for Cleveland Clinic who works in both

the United States and Saudi Arabia. Before COVID, he would alternate his schedule, 

with one month spent in the Middle East and two months in the U.S. During COVID, he

spent four consecutive months in the U.S. and two months in the Middle East. During 

both time periods, he spent four months overseas and eight months at home each year. 
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During February 2020, at the time COVID began, he was unable to come home from the 

Middle East for a period until June of 2020. Greg indicated that at the time the separation 

agreement was signed, he did not have the position involving international travel, which 

began in November 2015. His W-2 and tax information demonstrated that his 2014 wages 

were $343,000, with a significant increase beginning in 2016. His 2019 wages were 

$790,000. 

{¶11} Greg testified that since his international schedule began in 2016, his 

children lived with him when he is in the U.S., approximately eight months out of the year. 

His son began college in 2019 and lives in his own apartment during the school year. 

According to Greg, his daughter is with him “99 percent” of the time when he is home. At 

the time of the divorce, the Hauns lived in a 2,500 square foot condo with three bedrooms 

and Greg now lives in a 4,000 square foot house with four bedrooms. 

{¶12} Greg testified that he pays car payments and insurance for his son’s and 

daughter’s vehicles. He also pays for their cell phones and provides them an allowance 

of approximately $400 per month. He paid $3,000 annually for the daughter’s soccer 

lessons. He has gone on several vacations with his children since the divorce but has 

not travelled with them in the past few years. As to the children’s 529 college accounts, 

Greg testified “I contribute significantly more money than what the Divorce Decree said I

should contribute.” 

{¶13} Aria Haun, who was 17 years old at the time of her testimony, testified that 

she generally lives with her father eight months out of the year, when he is in the United 

States. She testified that he pays for her car, gas, college applications, soccer, senior 

pictures, medical and dental bills, and haircuts. He puts money in her debit account if 
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she needs something. She testified that her mother’s apartment is smaller than their 

house and she did not have her own room there until her brother moved out.

{¶14} Sorenson, the Hauns’ son, was in college at the time of his testimony. Prior 

to his graduation in May 2019, he lived with his father when he was home. He did not 

recall the exact schedule but believed he would go for a month at a time. He indicated 

that his father paid “mostly” for his expenses when he was living with his parents and 

provides gas money and pays his current rent. He indicated that he had gone on a few 

trips with his father prior to 2019. 

{¶15} On the second day of testimony, June 12, 2023, the parties agreed that the 

new judge should consider the testimony from the 2020 hearing.

{¶16} On cross-examination, Greg testified that while he was in medical school, 

Sharla worked as a lawyer and he did not have an income. After he became a doctor, 

they became members of a country club and went on trips to various locations together. 

In April 2013, they purchased a new house.

{¶17} Sharla testified that she made various payments for the children’s 

expenses, including for their orthodontist, orchestra, and school fees. She also gave the 

children money when they requested it. She testified that her “apartment was quite 

comfortable” with a pool and workout facility. 

{¶18} On June 14, 2023, the court issued a Judgment Entry, dismissing Sharla’s

motion for spousal support and child support, denying her motion for attorney fees, and 

finding that Greg had demonstrated that he purged the contempt by overfunding the 

children’s 529 accounts in the amount of $84,107. In its findings of fact and conclusions 

of law, it noted that the May 2, 2019 findings of fact and conclusions of law “remain before 
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this Court and constitute the law of the case.” It noted, in pertinent part, that those findings 

indicate Sharla’s monthly expenses had not increased after the divorce decree, she failed 

to demonstrate how the current support order did not address the needs of the children 

and their standard of living and that the award sought exceeded their needs, that Greg 

had the children in his possession 225 days in 2017 and 230 days in 2016, that Sharla 

has an earning ability beyond that imputed to her in the divorce decree, and she failed to 

submit evidence to support an increase in spousal support. In relation to the testimony 

and evidence presented on remand, the court found Sharla’s testimony was

“disorganized, irrelevant, and lacked credibility” and that Greg was “cooperative and 

testified openly and honestly” and that his testimony was “credible and reliable.” Other 

findings will be addressed in the relevant assignments of error.

{¶19} Sharla timely appeals and raises the following assignments of error.

{¶20} “[1.] The Post-Remand Trial Court failed to follow the directives outlined by 

the 11th District Court of Appeals and relied on erroneous findings of fact in denying 

Sharla’s Motion to Modify Child Support.

{¶21} “[2.] The Trial Court abused its discretion in denying the Motion to Modify 

the Spousal Support Award based upon findings of fact from a 5/2/2019 Judgment Entry 

which was written outside the Trial Court’s jurisdiction while the case was under appeal 

to the Eleventh District Court of Appeals. The Post-Remand Trial Court also misapplied 

Ohio’s governing spousal support statute and case law.

{¶22} “[3.] The Trial Court abused its discretio[n] purging Greg’s Contempt based 

on evidence not submitted at a hearing. The Trial Court determined Sharla provided no 

evidence of Attorney Fees.”
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{¶23} In her first assignment of error, Sharla raises various arguments asserting 

that the trial court’s consideration of her motion to modify child support was flawed and 

constituted an abuse of discretion.

{¶24} “Absent an abuse of discretion, a trial court’s determination regarding child 

support obligations will not be disturbed on appeal.” Haun, 2019-Ohio-5408, at ¶ 7, citing 

Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1108 (1997). “[T]he term ‘abuse of 

discretion’ is one of art, essentially connoting judgment exercised by a court which neither 

comports with reason, nor the record.” (Citation omitted.) Shorts v. Shorts, 11th Dist. 

Portage No. 2007-P-0067, 2008-Ohio-2317, ¶ 13. An abuse of discretion is the court’s 

“‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 

2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary (8 

Ed.2004) 11. 

{¶25} This court reversed and remanded the trial court’s denial of Sharla’s motion 

to modify child support on the grounds that the court failed to make a proper finding that 

the amounts calculated under the child support schedule were unjust and not in the best 

interest of the children and because it fashioned the award based on Sharla’s needs 

rather than the children’s. On remand, the lower court found it was incapable of 

calculating child support under the worksheet because Sharla failed to present evidence 

verifying her income. Nonetheless, it proceeded to conduct an analysis of the justification 

for a support award and made a finding that the minimum support amount cited by this 

court in the prior appeal, $1,830.92 per month, “would be unjust or inappropriate and 

would not be in the best interest of the children.” It based this conclusion on the “extensive 

time the children are in Greg’s possession,” his obligation to fund their 529 accounts, and 
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his additional financial contributions to their expenses. It addressed the impact of child 

support on Sharla as well as the children. Thus, the court addressed the concerns upon

which this matter was remanded.

{¶26} Sharla raises several arguments that she asserts justify reversal of the 

lower court’s order. First, she contends that the court erred in finding she failed to provide 

records relating to her income or to submit a properly authenticated financial affidavit. 

She did provide paystubs and tax return documents from 2016 and 2017 in the initial 

hearings on this matter. Similarly, she testified regarding her affidavit of income and 

expenses at the prior proceedings and it was introduced as an exhibit. 

{¶27} The trial court declined to consider past evidence from the initial hearings, 

stating that Sharla did not provide evidence of her income at the “new trial.” However, at 

the commencement of the 2020 hearing on remand, Greg’s counsel moved to adopt the 

prior testimony from the 2017 hearings. The court inquired “do you have any problem 

using these transcripts if I need to?” to which Sharla’s counsel responded he had no 

objection, stating: “I think my understanding of the law is that you’re required to – take 

into consideration what was previously offered into evidence.” Sharla’s counsel further 

indicated he had no objection to the previously admitted exhibits, and the court indicated 

“I’m sure they’re in the files.” Greg’s counsel indicated no objection to consideration of 

the prior exhibits. The proceedings continued at a 2023 hearing, where Greg’s counsel 

further indicated that the court should consider the testimony presented at the 2020 

hearing, to which Sharla did not object. To later decide not to consider transcripts or 

evidence from any of the prior proceedings given these statements made on the record 

is unfair to Sharla, since it was reasonable to depend upon the agreement that it was 
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unnecessary to duplicate evidence already presented. This court did not specifically 

require that those issues warranting remand necessitated a new trial or order that the 

court could not consider the evidence already before it. Rather, we remanded for the 

court to “undertake the required [child support] calculation and find a substantial change 

in circumstances” and “modify the amount of child support” unless such amount would be 

unjust; “consider the requisite statutory factors when addressing whether the existing 

spousal support order should be modified”; and to “hold Greg in contempt.” Haun at ¶ 

14, 52, and 66. Our orders related to making appropriate findings rather than to the need 

for new evidence to be presented.

{¶28} Nonetheless, even presuming the lower court erred in finding Sharla had 

not properly demonstrated her income, it proceeded to an analysis of the merits of 

whether child support in the amount of “at least $1,830.93” was appropriate, the amount 

this court stated was the minimum that could be awarded unless a finding to the contrary 

was made. Thus, the finding regarding the admission of Sharla’s financial records did not 

preclude the court from considering whether a modification of child support was 

appropriate under the facts and circumstances of this case. 

{¶29} R.C. 3119.04(B), effective until March 27, 2019, and in effect at the time the 

motion to modify child support was filed, states that “[i]f the combined gross income of 

both parents is greater than one hundred fifty thousand dollars per year, the court, with 

respect to a court child support order, * * * shall determine the amount of the obligor’s 

child support obligation on a case-by-case basis and shall consider the needs and the 

standard of living of the children who are the subject of the child support order and of the 

parents. The court * * * shall compute a basic combined child support obligation that is 
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no less than the obligation that would have been computed under the basic child support 

schedule * * *, unless the court * * * determines that it would be unjust or inappropriate 

and would not be in the best interest of the child, obligor, or obligee to order that amount.” 

This court observed in Haun that “[t]he appropriate standard for the amount of child 

support is ‘that amount necessary to maintain for the children the standard of living they 

would have enjoyed had the marriage continued.’” Id. at ¶ 18, citing Berthelot v. Berthelot, 

154 Ohio App.3d 101, 2003-Ohio-4519, 796 N.E.2d 541, ¶ 24 (9th Dist.).

{¶30} R.C. 3119.04(B) “‘neither contains nor references any factors to guide the 

court’s determination in setting the amount of child support,’” so the determination of how 

much child support an obligor must pay is left to the discretion of the trial court. (Citations 

omitted.) J.R. v K.R., 8th Dist. Cuyahoga No. 106978, 2019-Ohio-1765, ¶ 14. As this 

court has held, a “domestic court possesses considerable discretion in setting a child 

support order when the parents’ combined income is above $150,000.” (Citation omitted.) 

Janecek v. Marshall, 11th Dist. Lake No. 2010-L-059, 2011-Ohio-2994, ¶ 41.

{¶31} The lower court’s finding that an increase in child support was unwarranted 

was based upon several findings, including the time the children are in Greg’s possession 

and his additional financial contributions to their expenses. The court recognized that the 

children had their needs met by the significant expenditures made by Greg, including his 

payment of their car expenses, school expenses, and allowances and debit accounts 

toward their personal needs. This offset the need to increase support, particularly where 

there was evidence that the children resided with him for the majority of the year.

{¶32} Sharla argues that the court erred in its findings relating to Greg’s custody 

of the children. She contends it misstated the children’s testimony, incorrectly finding that 
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Sorenson testified they stayed with their father eight months a year. Aria testified that 

she lived with Greg “usually eight months out of the year.” Sorenson indicated that when 

his dad was home, he stayed with him, and when his mother was home, he stayed with 

her. He believed, but was uncertain, that his father was out of the country for one month 

at a time, for a total of five months a year. The trial court did incorrectly conclude “each 

of the children” testified they stayed with Greg for eight months out of the year, when 

Sorenson did not provide this exact testimony. Nonetheless, this error in characterizing 

his testimony does not invalidate the lower court’s conclusion that the children lived with 

Greg eight months out of the year, as both Greg and Aria provided such testimony and 

Sorenson was uncertain but gave testimony that placed the time period close to that 

provided by his father and sister. Sharla argues that her personal calendars indicated the

children were not always in Greg’s care during the months he was in the United States. 

However, Greg testified to the contrary. The court ultimately found that Greg was a 

credible witness while Sharla was not. “[T]he choice between credible witnesses and 

their conflicting testimony rests solely with the finder of fact[,] and an appellate court may 

not substitute its own judgment for that of the finder of fact.” Allen v. Allen, 2022-Ohio3198, 196 N.E.3d 368, ¶ 86 (11th Dist.), citing State v. Awan, 22 Ohio St.3d 120, 123, 

489 N.E.2d 277 (1986). 

{¶33} Sharla also argues that calling the children to testify demonstrates “Greg 

does not know what is in the best interests of the children.” She does not cite any legal 

authority for the proposition that it was improper for the children, one of which was an 

adult, to testify. Whether or not this is demonstrative of Greg’s knowledge regarding their 

best interests is not relevant as to whether an increased child support order is in their 
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interests. 

{¶34} Finally, Sharla argues that the court erred in finding that she failed to

demonstrate the needs of the children were not met by the support order, emphasizing 

that the existing order of approximately $1,000 a month only meets two-thirds of her rent 

expense. Apart from the fact that Sharla would have some rent expense even if the 

children did not live with her, it also must be recognized that the children live with her only 

four months of the year. Further, there was significant testimony from both Greg and the 

children that he paid many of their expenses, including car payments, gas, insurance, 

extracurricular activities, and provided money when they requested it. There was a lack 

of testimony at any of the hearings to show that their needs were not being met, except 

that Sharla had difficulty affording to take them on vacations. She did testify she took 

them on a trip to visit family and there was testimony that they were able to travel with 

Greg. Sharla also testified to a significant amount of money she had been able to save 

since the divorce, between the sale of the house and from the spousal support award. 

While this money is not for the support of the children, the court was within its discretion 

to question Sharla’s assertions regarding whether additional child support was needed to 

meet the children’s needs. 

{¶35} Further, as to Sharla’s assertions regarding the change in the children’s

lifestyle, for the majority of the year, they live in a home larger than the one they did at 

the time of the divorce and they both have relatively new vehicles. They are provided 

money for personal expenses such as haircuts and eating out. According to Sharla, her 

apartment was “quite comfortable” and afforded the children a pool and workout facility. 

It has been held that “a trial court should tread carefully when determining to award a 
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child support amount that is greater than that necessary to cover the current needs of the 

children; awarding a higher amount in this situation could encroach on [the other parent’s] 

own common law duty to support the children.” (Citation omitted.) Pearlstein v. 

Pearlstein, 11th Dist. Geauga No. 2008-G-2837, 2009-Ohio-2191, ¶ 67. Given the 

support cited for the trial court’s ruling, and that it made the necessary statutory findings

to support its decision not to modify support, we find no abuse of discretion. See Crandall 

v. Crandall, 11th Dist. Geauga No. 2019-G-0202, 2020-Ohio-625, ¶ 80-82 (where the 

father pays for significant expenses of the children, including extracurricular activities, and 

the mother did not demonstrate an increase was required to meet the children’s needs or 

standard of living, the court did not err in denying increased support). 

{¶36} The first assignment of error is without merit.

{¶37} In her second assignment of error, Sharla argues that the trial court erred 

in denying her motion for spousal support because it failed to consider factors under R.C. 

3105.18(C)(1) which had substantially changed or which were material to modification of 

spousal support and failed to consider testimony from the 2017 and 2018 hearings to 

conduct a spousal support analysis.

{¶38} “We review a trial court’s decision regarding spousal support under an 

abuse of discretion standard of review.” Marchand v. Marchand, 11th Dist. Geauga No. 

2005-G-2610, 2006-Ohio-3080, ¶ 15.

{¶39} As this court stated in Haun, “R.C. 3105.18(C)(1) lists factors a court is 

required to consider upon assessing whether the spousal support award remains 

appropriate and reasonable.” Haun, 2019-Ohio-5408, at ¶ 32. These factors include, 

inter alia: the income of the parties; the earning abilities of the parties; the ages and 
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physical, mental, and emotional conditions of the parties; the retirement benefits of the 

parties; the duration of the marriage; the standard of living established during the 

marriage; the education of the parties; the parties’ assets and liabilities; the contribution 

of the parties to each other’s education; the tax consequences of an award of support; 

lost income capacity resulting from marital responsibilities; and any other factor the court 

finds relevant. R.C. 3105.18(C)(1)(a)-(n). “[A]lthough a court must consider all the 

applicable factors and set forth the basis of its decision to allow appellate review, a court 

is not required to restate the applicable factors under R.C. 3105.18(C)(1) that are 

unchanged since the original spousal support order was issued.” Haun at ¶ 48, citing 

Kucmanic v. Kucmanic, 119 Ohio App.3d 609, 613, 695 N.E.2d 1205 (8th Dist.1997).

{¶40} In Haun, this court reversed the denial of the motion to modify spousal 

support because the trial court relied on Sharla’s need for support and this court could 

not ascertain whether the court considered the mandatory factors in R.C. 3105.18(C). 

2019-Ohio-5408, at ¶ 51-52. On remand, the trial court found that Sharla failed to comply 

with the requirements of Loc.R. 27.1 as grounds for dismissing her support motion. It 

further found that she failed to present evidence as to her age and health, education and 

training, employment history and earning potential, and her income and expenses, 

thereby preventing the court from being able to properly weigh the factors under R.C. 

3105.18(C).

{¶41} Portage County Common Pleas Court, Domestic Relations Division, Local 

Rule 27.1, cited by the trial court, requires that a party filing to modify a spousal support 

order must provide required affidavits in Loc.R. 9, i.e., financial disclosure affidavits. As 

indicated above, at the initial hearing, Sharla presented as an exhibit her affidavit of 
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income and expenses. She also presented tax return information and a current pay stub. 

She testified about her affidavit and the expenses listed therein. Her failure to resubmit 

this information for a second time should not preclude further consideration of her motion 

to modify. This is particularly true where this court did not require further evidence to be 

gathered on remand and did not indicate that additional facts were necessary to 

determine the matter of spousal support. 

{¶42} Further, the trial court held that Sharla failed to present testimony or 

evidence regarding her age and health, education and training, employment history and 

earning potential, and her income and expenses. However, in the 2017 hearings, she 

provided testimony regarding her age and health; her income since the divorce; her past 

education in completing law school; her present attendance of a master’s degree 

program; her expenses for tuition, rent, and her vehicle; her most recent employment as 

an attorney; and the amount of money in her savings account. The trial court’s decision 

not to consider these factors did not comply with this court’s instructions on remand. As 

noted above, in the Haun decision, we did not require that new evidence be presented 

upon remand. Rather, we remanded “for the court to consider the requisite statutory 

factors when addressing whether the existing spousal support order should be modified.” 

Haun at ¶ 52. This could have been accomplished by the court considering the evidence

already presented, as the issue was not a lack of evidence but the trial court’s failure to 

consider the statutory factors. Furthermore, at the commencement of the new trial held 

after remand, the parties agreed that the trial court could consider past testimony and the 

court had initially indicated its intent to consider past testimony and evidence. Requiring 

Sharla to present additional evidence when the parties had already agreed that prior 
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evidence could be utilized results in an unfair outcome.

{¶43} For these reasons, we reverse the court’s judgment as to spousal support 

and remand with instructions to consider the requisite statutory factors when addressing 

whether the existing spousal support order should be modified, taking into account all 

evidence and testimony presented by Sharla and Greg in the past hearings on the motion 

to modify spousal support.

{¶44} The second assignment of error is with merit.

{¶45} In her third assignment of error, Sharla argues that the trial court erred in 

finding that Greg purged the contempt since the only evidence of this was presented 

through a document filed with a motion rather than produced at the hearing. Further, she 

argues that she should have been awarded attorney fees related to the contempt. 

{¶46} “We review contempt orders for an abuse of discretion.” Haun, 2019-Ohio5408, at ¶ 56.

{¶47} In the prior appeal, this court held that there was undisputed evidence 

presented by Sharla which demonstrated Greg failed to fully fund the children’s 529 

college savings account. Id. at ¶ 64. We ordered that, on remand, “the trial court shall 

hold Greg in contempt of court” and that it “has discretion in awarding attorney fees, if 

any, in connection with this contempt finding.” Id. at ¶ 66. We did not address the issue 

of purging the contempt. 

{¶48} “One charged and found guilty of civil contempt must be allowed to purge

him/herself of the contempt by showing compliance with the court’s order he/she is 

charged with violating.” In re Guardianship of Hards, 11th Dist. Lake No. 2007-L-150, 

2009-Ohio-1002, ¶ 23. While this court held that Greg must be found to have committed 
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contempt, this did not preclude the court from allowing Greg to purge such contempt. The 

lower court made such a finding, based upon statements from the accounts which showed 

their yearly balances. 

{¶49} On June 8, 2022, Greg filed an Updated Notice of Overpayment of 529 

Account Contributions. In this notice, he argued that he had complied with all of the terms 

of the divorce decree concerning the funding of the children’s 529 accounts and that his 

contributions exceeded the court ordered payments. Attached were 529 statements for 

both children from 2014 through 2020. 

{¶50} Sharla does not refute that the foregoing shows Greg made the required 

payments but argues that these were not properly admitted as evidence at the remand 

hearings or authenticated. In support of her contention, Sharla observes that the trial 

court applied the logic that “pleadings and motions filed with the court are not evidence,”

see Felton v. Felton, 79 Ohio St.3d 34, 43, 679 N.E.2d 672 (1997), in relation to her 

affidavit of income and the same should be applied here. It has been held that “[i]n making 

its decision following trial, the trial court may only consider the evidence * * * admitted at 

trial. Other evidence in the record but not admitted at trial may not be considered.”

(Citation omitted.) Paldino v. Johnson, 11th Dist. Trumbull No. 2022-T-0116, 2023-Ohio1947, ¶ 12, fn. 2. 

{¶51} In various circumstances, courts have held that evidence not admitted as 

exhibits, but included as attachments in motions or otherwise not authenticated, is 

admissible where the opposing party fails to object to its admission. See State ex rel. 

Chuvalas v. Tompkins, 83 Ohio St.3d 171, 173-174, 699 N.E.2d 58 (1998) (objection to 

affidavits attached to a brief were waived when a party did not move to strike them or 
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otherwise raise grounds challenging their impropriety); Abbott v. Sears, Roebuck & Co., 

11th Dist. Trumbull No. 2003-T-0085, 2004-Ohio-5106, ¶ 15 (“[g]enerally, a party’s failure 

to object to the propriety of evidence submitted in support of a motion for summary 

judgment constitutes a waiver of any alleged error in the consideration of such evidence”); 

State ex rel. Noble v. Vettel, 11th Dist. Ashtabula No. 2004-A-0079, 2005-Ohio-692, ¶ 4

(where relator had “ample opportunity to challenge” assertions made in a motion which 

had attached a judgment entry but failed to do so, the authenticity of the document was 

not contested). Here, a hearing was held on the issues before the court on remand, which 

included the matter of contempt and attorney fees relating to that contempt. Sharla had 

the opportunity to raise this issue, either through a motion seeking to strike the filings, or

through questioning of Greg, but did not do so. Thus, we do not find error in the court’s 

consideration of these materials in determining whether contempt had been purged.

{¶52} Sharla also argues that the lower court erred in failing to award attorney’s 

fees. When remanding this matter, this court recognized the trial court has the discretion 

to award attorney’s fees against a party found guilty of civil contempt. Haun at ¶ 66. 

{¶53} The lower court determined that attorney fees were not appropriate here, 

finding that there was a lack of evidence presented by Sharla to justify such an award. 

“Awards of attorney fees or sanctions as costs are permitted if those fees have a clear 

nexus with the contemnors’ behavior.” Hards, 2009-Ohio-1002, at ¶ 56, citing State ex 

rel. Fraternal Order of Police, Captain John C. Post Lodge No. 44 v. Dayton, 49 Ohio 

St.2d 219, 229-230, 361 N.E.2d 428 (1977). In awarding attorney fees, a court considers

various factors in determining their reasonableness, including inter alia, time and labor

expended, the fee customarily charged in the locality, the results obtained, the nature of 
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the relationship, and the experience of the lawyers. Id. at ¶ 56-64, citing Sup.R. 71(A). 

{¶54} While the court emphasized the lack of evidence presented at the hearing 

on remand relating to attorney fees, as noted above, the parties agreed that the court 

could consider evidence from the prior hearing. At the initial hearing on this matter, 

itemized billing records from Sharla’s counsel were presented, which included tasks 

relating to the contempt motions. 

{¶55} Even presuming these should have been considered, however, we do not 

find reversal is warranted. As recognized by the trial court, there was a lack of testimony 

to establish the reasonableness of the fees and the specific tasks performed by counsel 

in relation to the contempt finding at issue. There were multiple issues relating to 

contempt raised through those motions and litigation, including claims for contempt for 

Greg’s failure to provide Sharla with online access to the children’s 529 accounts and to 

designate the children as beneficiaries of life insurance policies, both of which were 

unsuccessful. There was a lack of testimony to establish what portion of fees would be 

reasonable for the contempt violation on which Sharla prevailed. Of note, this court 

recognized that although Sharla “argued that Greg failed to provide her with online access 

to their children’s 529 college savings accounts” Sharla’s motion did “not allege, as a 

basis for contempt, that Greg was in violation of the decree based on his failure to fund

the 529 accounts.” Haun at ¶ 64. The trial court similarly noted on remand, in ruling on 

the issue of attorney fees, that Sharla did not specifically address the fact that accounts 

were underfunded in her motion. Since she did not raise this issue in her motion for 

contempt, it is difficult to determine the extent to which she expended attorney’s fees on 

the matter on which she prevailed. For these reasons, we do not find the court abused 
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its discretion by denying an award of attorney fees.

{¶56} The third assignment of error is without merit. 

{¶57} For the foregoing reasons, the judgment of the Portage County Court of 

Common Pleas, Domestic Relations Division, is affirmed in part, reversed in part, and this 

matter is remanded for further proceedings consistent with this opinion. Costs to be taxed 

against the parties equally.

MARY JANE TRAPP, J.,

JOHN J. EKLUND, J.,

concur.