[Cite as Walton v. Walton, 2011-Ohio-2847.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

MEGAN WALTON, 

 PLAINTIFF-APPELLEE, CASE NO. 14-10-21 

 v. 

JEREMIAH J. WALTON, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Union County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 05-DR-0092 

Judgment Affirmed 

Date of Decision: June 13, 2011 

 

APPEARANCES: 

Andrea R. Yagoda for Appellant 

Anthony W. Greco and Bryan D. Thomas for Appellee 
Case No. 14-10-21 

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PRESTON, J. 

{¶1} Defendant-appellant, Jeremiah Walton (hereinafter “Jeremiah”), 

appeals the Union County Court of Common Pleas’ judgment denying his motion 

for a change in parenting time and granting plaintiff-appellee’s, Megan Walton 

(k.n.a. Rausch) (hereinafter “Megan”), motion for attorney fees. For the reasons 

that follow, we affirm. 

{¶2} The facts relevant to this appeal are stated as follows. The parties 

were divorced by an Agreed Judgment Entry Decree on September 14, 2005. 

Megan was designated the residential parent and legal custodian of the parties’ 

minor child, Zander, born in 2004. Jeremiah was allocated parenting time on a 

specific schedule, which according to the Divorce Decree was supposed to change 

at the time the child began school. Additionally, a child support order was issued. 

Zander started attending school in August/September of 2009. 

{¶3} On March 14, 2009, Jeremiah filed a Motion for Reallocation of 

Parental Rights and Responsibilities and requested that he be designated the 

school placement parent or, in the alternative, that his parenting times be 

expanded. 

{¶4} On May 8, 2009, Clarence Mingo was appointed guardian ad litem 

(“GAL”) in the case. Mingo later withdrew from the case prior to final 
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disposition, at which point in time, Clifton Valentine was appointed GAL for the 

remainder of the case. 

{¶5} On June 8, 2009, Megan filed a motion seeking an increase in child 

support and filed a motion for attorney fees. 

{¶6} On June 23, 2009, the trial court ordered, upon motion by the parties, 

psychological evaluations of the parties and an independent evaluation of the 

minor child. 

{¶7} Jeremiah filed three motions for contempt on September 22 and 30, 

2009, and October 29, 2009, respectively. Additionally, Jeremiah and his bank, 

Richwood Bank, filed motions for protective orders on September 3, 2009, and 

October 23, 2009, respectively. 

{¶8} On October 22, 2009, Megan filed a motion for order to compel 

discovery and/or motion for sanctions and reasonable attorney fees. On January 6, 

2010, Megan filed a supplemental motion for an order to compel discovery and/or 

motion for sanctions and reasonable attorney fees. 

{¶9} The matter came for a final hearing on January 28-29, 2010 on the 

following matters: Jeremiah’s motion for reallocation of parental rights; Megan’s 

motion to compel; and Jeremiah’s motions for contempt. 
Case No. 14-10-21 

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{¶10} On February 1, 2010, the magistrate issued an order compelling 

Jeremiah to provide Megan with all financial records for 2007-2009 used in the 

preparation of tax returns. 

{¶11} On February 24, 2010, the magistrate’s order and decision was filed 

denying Jeremiah’s motion for reallocation of parental rights, denying Jeremiah’s 

motion to modify parenting time, and denying Jeremiah’s motions for contempt. 

{¶12} On March 8, 2010, Jeremiah filed objections to the magistrate’s 

decision. 

{¶13} On March 15, 2010, Megan filed a motion for order to compel 

against Richwood Bank. On March 18, 2010, Megan filed a supplemental motion 

for order to compel Richwood Bank. On March 17, 2010, Jeremiah filed a child 

support guideline worksheet and request for deviation. On March 23, 2010, 

Megan filed a memorandum in opposition to Jeremiah’s request for deviation. On 

April 7, 2010, the trial court ordered Richwood Bank to provide records. On April 

13, 2010, Jeremiah filed a motion asking the trial court to set aside the order 

compelling Richwood Bank to provide records, but this motion was denied. 

{¶14} On May 27, 2010, the matter proceeded to hearing on the motion to 

modify child support and the motion for attorney fees. On June 11, 2010, the 

magistrate issued its decision ordering an increase in Jeremiah’s child support 

payments and awarding Megan attorney fees in the amount of $40,000.00. 
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{¶15} On June 23, 2010, Jeremiah filed objections to the magistrate’s 

decision concerning the child support and attorney fees. 

{¶16} On June 30, 2010, Jeremiah’s objections to both decisions were 

overruled. On July 22, 2010 a final, appealable order was entered. 

{¶17} Jeremiah now appeals and raises the following two assignments of 

error. 

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT’S REFUSAL TO AWARD APPELLANT 

GREATER PARENTING TIMES WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE AND 

CONSTITUTED AN ABUSE OF DISCRETION. 

{¶18} In his first assignment of error, Jeremiah argues that the trial court 

abused its discretion in not granting him greater parenting time when the evidence 

was uncontroverted that more parenting time was in Zander’s best interest.1

{¶19} A trial court’s establishment of a non-residential parent’s visitation 

rights is within its sound discretion and will not be disturbed on appeal absent a 

showing of an abuse of discretion. Fordham v. Fordman, 3d Dist. No. 8-08-17, 

 

1

 Megan argues that Jeremiah failed to raise the issue of the expansion of parenting time in his original 

motion and thus claims that the issue is not properly before this Court. However, at the modification 

hearing, the trial court found that Jeremiah’s motion did contain a request for a change in parenting time, 

despite the fact that the caption did not explicitly indicate such request. (Jan. 29, 2010 Tr. at 77). 

Nevertheless, the trial court found that in light of the prayer for relief language in the motion, as well as the 

evidence that had been presented at the hearing, the change in parenting time had been litigated by implied 

consent and it granted Jeremiah’s oral request to litigate the issue regarding additional parenting time. 

(Id.). We find no error with the trial court’s decision and find that the issue is properly before this Court to 

consider. 
Case No. 14-10-21 

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2009-Ohio-1915, ¶18, citing Elson v. Elson, 3d Dist. No. 17-04-16, 2005-Ohio3228, ¶11, citing Appleby v. Appleby (1986), 24 Ohio St.3d 39, 41, 492 N.E.2d 

831; Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. An abuse 

of discretion suggests the trial court’s decision is unreasonable or unconscionable. 

Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. The 

trial court’s discretion over visitation in this situation is broader than the court’s 

discretion regarding child custody matters. Elson, 2005-Ohio-3228, at ¶11, citing 

State ex rel. Scordato v. George (1981), 65 Ohio St.2d 128, 419 N.E.2d 4. 

Furthermore, the trial court must exercise its discretion in the best interest of the 

child. Bodine v. Bodine (1988), 38 Ohio App.3d 173, 175, 528 N.E.2d 973. 

{¶20} Additionally, we note that the trier of fact is in the best position to 

observe the witnesses, weigh evidence, and evaluate testimony. Clark v. Clark, 3d 

Dist. No. 14-06-56, 2007-Ohio-5771, ¶23, citing In re Brown (1994), 98 Ohio 

App.3d 337, 648 N.E.2d 576. Therefore, “‘[a] reviewing court should not reverse 

a decision simply because it holds a different opinion concerning the credibility of 

the witnesses and evidence submitted before the trial court. A finding of an error 

in law is a legitimate ground for reversal, but a difference of opinion on credibility 

of witnesses and evidence is not.’” Id., quoting Seasons Coal Co., Inc. v. 

Cleveland (1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 1273. 
Case No. 14-10-21 

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{¶21} R.C. 3109.051 governs visitation rights of non-residential parents 

and provides, in pertinent part: 

If a divorce * * * proceeding involves a child and if the court has 

not issued a shared parenting decree, the court * * *, in 

accordance with division (C) of this section, shall make a just 

and reasonable order or decree permitting each parent who is 

not the residential parent to have parenting time with the child 

at the time and under the conditions that the court directs, 

unless the court determines that it would not be in the best 

interest of the child to permit that parent to have parenting time 

with the child and includes in the journal its findings of fact and 

conclusions of law. Whenever possible, the order or decree 

permitting the parenting time shall ensure the opportunity for 

both parents to have frequent and continuing contact with the 

child, unless frequent and continuing contact by either parent 

with the child would not be in the best interest of the child. 

R.C. 3109.051(A). To determine whether a parenting schedule is in the child’s 

best interest, R.C. 3109.051(D) directs the trial court to consider the following 

factors, in part: 

(1) The prior interaction and interrelationships of the child 

with the child’s parents, siblings, and other persons related by 

consanguinity or affinity, and with the person who requested 

companionship or visitation if that person is not a parent, 

sibling, or relative of the child; 

(2) The geographical location of the residence of each parent 

and the distance between those residences, and if the person is 

not a parent, the geographical location of that person’s residence 

and the distance between that person’s residence and the child’s 

residence; 

(3) The child’s and parents’ available time, including, but not 

limited to, each parent’s employment schedule, the child’s school 

schedule, and the child’s and the parents’ holiday and vacation 

schedule; 
Case No. 14-10-21 

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(4) The age of the child; 

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

*** 

(7) The health and safety of the child; 

(8) The amount of time that will be available for the child to 

spend with siblings; 

(9) The mental and physical health of all parties; 

(10) Each parent’s willingness to reschedule missed parenting 

time and to facilitate the other parent’s parenting time rights, 

and with respect to a person who requested companionship or 

visitation, the willingness of that person to reschedule missed 

visitation; 

*** 

(13) 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; 

*** 

(16) Any other factor in the best interest of the child. 

R.C. 3109.051(D). 

{¶22} Jeremiah claims that the trial court erred in denying him greater 

parenting time when the magistrate failed to consider all of the relevant mandatory 

best interest factors. In particular, Jeremiah claims that the magistrate failed to 

consider evidence that there were concerns regarding the health and safety of the 

parties’ minor child, and evidence regarding Megan’s mental health issues 

testified to by David Lowenstein, Ph.D. However, we find Jeremiah’s arguments 

unpersuasive. 

{¶23} It is clear from the record that the magistrate did consider all of the 

applicable best interest factors in rendering its decision. In particular, with respect 
Case No. 14-10-21 

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to R.C. 3109.051(D)(1), the magistrate found that furthering Zander’s 

relationships with his sister, Jeremiah’s parents, and Zander’s step-mother were 

beneficial and should be encouraged and nurtured. (Feb. 24, 2010 Mag. Dec. at 

9). In addition, the magistrate acknowledged, pursuant to R.C. 3109.051(D)(2), 

that the geographical location of the residences of the parties would facilitate 

frequent companionship with both parents. (Id.). Furthermore, under R.C. 

3109.051(D)(3), the magistrate found that both parties would have to make 

compromises in terms of their schedules when it came to visitation with the minor 

child. (Id.). 

{¶24} Nevertheless, the magistrate also noted, pursuant to R.C. 

3109.051(D)(9) & (10), that Jeremiah’s frustration and suspicion of Megan created 

an “air of hostility and undermine[d] communication,” and that any problems that 

had occurred with parenting time and schedules were mostly attributable to 

“frustration, anger and mistrust.” (Id.). Significantly, with respect to R.C. 

3109.051(D)(1), the magistrate noted that “there is considerable acrimony and 

mistrust between the parents that has contributed to Zander’s anxiety to the decree 

[sic] that he is reluctant to express affection toward either parent in the presence of 

the other.” (Id.). Moreover, under R.C. 3109.051(D)(16), the magistrate 

recognized that the first GAL recommended Jeremiah be given greater parenting 

time, although the magistrate believed that his recommendation “appeared 
Case No. 14-10-21 

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qualified and restrained because of the parties’ lack of trust and inability to 

communicate.” (Id. at 9-10). The magistrate also considered the second GAL’s 

recommendation, who although he believed Jeremiah should be given a first right 

of refusal, could not recommend that a change in parenting time was in Zander’s 

best interest. (Id.). 

{¶25} Overall, after considering all of the applicable factors, the magistrate 

concluded, as follows: 

Communication and cooperation of parents in raising their 

children are always in the best interest of a child; however, the 

tone of communications and the attitude in which 

communications are given and received dramatically affect the 

resultant cooperation or non-cooperation. * * * Such 

cooperation is at present no more than an aspiration. Indeed, it 

appears that suspicion and mistrust permeates the parents’ 

interactions to the degree that every contact the child is exposed 

to causes the child to suffer anxiety. Notwithstanding Father’s 

clear and deep love and commitment for his son, the animosity 

between the parents so injures the child that interaction between 

Mother and Father cannot be expanded at this time. 

(Feb. 24, 2010 Mag. Dec. at 10); (See, also, June 30, 2010 JE at 3). 

{¶26} Despite these findings, Jeremiah claims that there were significant 

best interest factors that the magistrate did not consider. First, pursuant to R.C. 

3109.051(D)(7), Jeremiah argues that he testified about concerns he had regarding 

Zander’s health and safety, which were not considered by the trial court. 

However, after review of the record, we find that these concerns that Jeremiah 
Case No. 14-10-21 

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cites to merely center on a difference of opinion he had regarding Megan’s 

decision to enroll Zander in a part-time versus a full-time kindergarten class. We 

fail to see how these concerns amount to ones that involve Zander’s health and 

safety. Thus, we do not find that there was an abuse of discretion in failing to 

consider this factor. 

{¶27} In addition, contrary to Jeremiah’s claims that the trial court failed to 

consider Megan’s mental health issues, relevant to R.C. 3109.051(D)(9) and 

testified to by Dr. Lowenstein, the record clearly indicates that Dr. Lowenstein 

found no mental health issues with either parent. As the magistrate asked during 

the hearing: 

The Court: All right. As a result of all those testing, was there 

any psychopathology diagnosed on the part of any party? 

[Dr. Lowenstein]: No. 

The Court: Was there any personality disorders? 

[Dr. Lowenstein]: Nothing of significance. 

The Court: So basically the treatment you’re talking about is 

essentially behavioral modification? 

[Dr. Lowenstein]: Parenting and with child guidance and 

behavioral modification, yes. 

(Jan. 29, 2010 Tr. at 30). Considering there were no significant mental health 

issues diagnosed for either party, we cannot find that there was an abuse of 

discretion with respect to this factor. 

{¶28} Moreover, we do not find any merit with Jeremiah’s argument that 

the second GAL, Mr. Valentine, mischaracterized Dr. Lowenstein’s conclusions in 
Case No. 14-10-21 

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his GAL report to the trial court. We find that Mr. Valentine appropriately 

summarized Dr. Lowenstein’s conclusions and even acknowledged Dr. 

Lowenstein’s findings that Jeremiah should be more involved in the decisionmaking process regarding the well-being of Zander, and should be allowed to 

spend more time with Zander. (Defendant’s Ex. O). We note that even though 

Mr. Valentine could not find a change in parenting time to be in Zander’s best 

interest, he did recommend that a right of first refusal be given to Jeremiah. (Id.). 

{¶29} Furthermore, we disagree with Jeremiah that the trial court abused its 

discretion in failing to consider the testimony and report from the psychologist, 

Dr. Lowenstein. Jeremiah claims that the trial court only focused on Dr. 

Lowenstein’s recommendation that the parties needed to undergo therapy to 

address issues of behavioral modification. However, Jeremiah claims that Dr. 

Lowenstein also found no reason why Jeremiah should not be able to spend more 

time with Zander during the weekdays, especially considering the fact that both 

parties lived within the same school district. (Defendant’s Ex. K). In addition, 

Jeremiah argues that Dr. Lowenstein noted that in his opinion Megan was 

attempting to alienate the minor child from Jeremiah and was excluding Jeremiah 

from the decision-making process regarding the minor child. (Id.). 

{¶30} Initially, we note that the magistrate’s decision clearly references Dr. 

Lowenstein’s testimony and report. In its decision, the magistrate stated as 
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follows: “Dr. David Lowenstein recommended counseling for both parties in order 

to enhance their ability to communicate and cooperate in Zander’s best interest. * 

* * The recommendation of Dr. Lowenstein was behavioral modification of the 

parties through therapy to enhance communication and effect cooperation.” (Feb. 

24, 2010 Mag. Dec. at 10). 

{¶31} However, with respect to the trial court’s alleged abuse of discretion 

in failing to adopt his recommendation, we note that while psychological experts 

play an important role in custody matters and in evaluating the interest of children, 

their recommendations are not binding upon a trial court. A trial court must be 

free to evaluate all of the evidence and determine, based on the entire record, the 

child’s best interest. Here, the credibility of Dr. Lowenstein and the weight to be 

given to his testimony and report was a matter for the trial court, as the trier of 

fact, to determine, and we will not second guess its determination. State v. 

DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. See, also, In re R.N., 10th 

Dist. No. 04AP-130, 2004-Ohio-4420, ¶55. 

{¶32} Nevertheless, we wish to note that in this particular case, even 

though one of the recommendations Dr. Lowenstein made was that Jeremiah be 

given more parenting time, Dr. Lowenstein also acknowledged the parties 

apparent lack of trust and inability to communicate with one another. 

(Defendant’s Ex. K). As Dr. Lowenstein stated in his report, “[i]t is clear from 
Case No. 14-10-21 

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this evaluation that both parents have a lack of trust for the other parent and this is 

especially evident when it comes to the decisions and responsibilities of raising 

their son. Both Jeremiah and Megan do not trust each other and have continued to 

display behaviors and reactions that continue to reinforce this mistrust.” 

(Defendant’s Ex. K at 15). Consequently, Dr. Lowenstein concluded: 

Megan and Jeremiah seem to have never been able to 

communicate effectively with each other and feel that each 

other’s family has interfered with the raising and caring of their 

son. They need to find ways to be able to deal with their son and 

his needs and find ways to work together to find compromises, 

etc. Zander may need continued services for many years and 

these services will be most effective when both parents are 

supportive and involved. If Megan and Jeremiah cannot resolve 

their differences effectively on their own, then they should seek 

assistance from a professional who can assist them in mediating 

their differences. The present mode of resolving these 

differences is not working for Zander and will only further 

disrupt his well-being in the future. 

(Id. at 16). The parties’ animosity for one another and their inability to 

communicate, which again were found to be having direct consequences to their 

minor child, were the primary reasons why the magistrate and trial court found 

giving Jeremiah more parenting time would not be in Zander’s best interest. (See 

Feb. 24, 2010 Mag. Dec. at 10); (See, also, June 30, 2010 JE at 3). As such, 

despite Dr. Lowenstein’s recommendation that Jeremiah be given more parenting 

time, we cannot find that the trial court abused its discretion with respect to Dr. 

Lowenstein’s testimony and report since Dr. Lowenstein clearly recognized that, 
Case No. 14-10-21 

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at this point in time, the parties’ could not effectively communicate with one 

another. 

{¶33} Finally, after reviewing the record, we do not believe that the trial 

court’s decision in not awarding Jeremiah greater parenting time was against the 

manifest weight of the evidence. It is clear from the record that the parties have 

difficulty communicating and cooperating with one another. For example, verbal 

communications became so problematic for both sides that the parties resorted to 

communicating mostly through email. Not only did Dr. Lowenstein acknowledge 

the apparent animosity and lack of cooperation between Jeremiah and Megan, but 

both GALs, Jeremiah’s mother, and Jeremiah’s current wife recognized the 

difficulties the parties have in communicating and cooperating with one another 

with respect to Zander. This lack of trust and suspicious attitude with one another 

was directly affecting the parties’ interactions with their child. In particular, there 

was evidence that Zander would shut down when he was around both parents at 

the same time and would be less affectionate towards both parents. Moreover, 

there was evidence that Zander would get very upset whenever he would have to 

leave directly from Megan’s house, but that Zander was doing much better now 

that the parenting schedule has changed and he gets picked up by Jeremiah 

directly from school, instead of leaving from Megan’s house. 
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{¶34} Jeremiah claims that his proposed schedule would further eliminate 

the contact he and Megan would have with one another. However, the fact 

remains that, at the time of the original divorce decree, the parties contemplated a 

change in parenting time when Zander began school and both agreed to this 

parenting schedule. Despite this agreement, Jeremiah filed his motion for 

reallocation of parental rights on March 24, 2009, thus, it is clear that Jeremiah did 

not even give the schedule change a chance to work or not to work. Even still, 

there was evidence that Zander was progressing and had transitioned smoothly 

under the new parenting schedule. 

{¶35} Given all of the above, we find that there was competent, credible 

evidence to support the trial court’s decision, and thus, that it was not against the 

manifest weight of the evidence. Furthermore, in light of the apparent animosity 

between the parents and their inability to communicate with one another, we 

cannot find that the trial court abused its discretion in denying Jeremiah’s request 

for greater parenting time. 

{¶36} Jeremiah’s first assignment of error is, therefore, overruled. 

ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ABUSED ITS DISCRETION AND 

ACTED CONTRARY TO LAW IN AWARDING APPELLEE 

FORTY THOUSAND DOLLARS ($40,000.00) IN ATTORNEY 

FEES. 
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{¶37} In his second assignment of error, Jeremiah claims that the trial court 

abused its discretion in awarding Megan $40,000.00 in attorney fees when the 

award was inequitable under the circumstances. 

{¶38} R.C. 3105.73 governs the award of attorney fees and litigation 

expenses in domestic relations cases and provides, in pertinent part: 

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. 

R.C. 3105.73(B). 

{¶39} Awarding attorney fees under R.C. 3105.73 is within the sound 

discretion of the trial court. Hutta v. Hutta, 177 Ohio App.3d 414, 2008-Ohio3756, 894 N.E.2d 1282, ¶46, citing Howell v. Howell, 167 Ohio App.3d 431, 

2006-Ohio-3038, 855 N.E.2d 533. See, also, Kinworthy v. Kinworthy, 3d Dist. 

No. 1-10-23, 2010-Ohio-4547, ¶¶18-19. Therefore, we review the trial court’s 

decision for an abuse of discretion. Hutta, 2008-Ohio-3756, at ¶46. An abuse of 

discretion is more than an error in judgment; it signifies that the trial court’s 

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

at 219. When applying an abuse of discretion standard, an appellate court may not 
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substitute its judgment for that of the trial court. Berk v. Matthew (1990), 53 Ohio 

St.3d 161, 169, 559 N.E.2d 1301. 

{¶40} First, Jeremiah argues that it was improper for the trial court to 

consider fees incurred prior to January 26, 2010, which was the date on which 

Megan filed her motion for attorney fees. However, not only does Jeremiah not 

provide any support for his position, but we find that Jeremiah failed to raise this 

issue below, and thus, has waived it for purposes of this appeal. See App.R. 

12(A)(2); 16(A)(7). 

{¶41} Nevertheless, Jeremiah also claims that the trial court impermissibly 

based its decision on his “strained” motion for reallocation of parental rights and, 

as a result, awarded Megan attorney fees as a way to punish him for filing his 

motions and to prevent him from filing similar motions in the future. 

{¶42} We acknowledge that in concluding that Megan should be awarded 

attorney fees, the magistrate found that Jeremiah’s motion for reallocation was 

“strained” and that there was “a real danger that this matter will return to court in 

the future.” (June 11, 2010 Mag. Dec. at 12-13). However, in adopting the 

magistrate’s decision, after conducting its own independent review of the record, 

the trial court reasoned that “Father elected to chart his own trial strategy 

including the employment of experts.” (June 30, 2010 JE at 4-5). In addition, the 

trial court found that Jeremiah had failed to comply with the requirements of R.C. 
Case No. 14-10-21 

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3119.05 to document income for the purposes of computing child support and the 

prior orders of the court. (Id.). The trial court noted that because of Jeremiah’s 

actions the time and expenses incurred in the case were greatly increased. (Id.). 

Finally, the trial court found that “Father’s aggressive commitment to impose his 

will on Mother and the child is obvious,” and that “Mother lacked the ability to 

defend herself and unless fees are awarded, she will be unable to reimburse her 

parents who funded her defense.” (Id.). Consequently, the trial court found that 

$40,000.00 in attorney fees to Megan were equitable “based on the scope, 

sophistication and duration of the litigation initiated by Father.” (Id.). 

{¶43} After reviewing the record, we do not believe that the trial court 

abused its discretion in awarding Megan attorney fees. First of all, there was 

evidence of Jeremiah’s aggressive trial strategy, and that he chose to utilize 

experts in furtherance of his case. For example, the record reflects that Jeremiah 

identified thirty witnesses in his notice of disclosure of witnesses and ultimately 

conducted seven depositions for purposes of trial, in comparison to the two 

witnesses deposed by Megan. In addition, Jeremiah chose to rely on his personal 

accountant, who resided in Florida, for purposes of establishing his finances in 

terms of the child support motion, and flew his accountant up for the hearing in 

May to discuss Jeremiah’s finances. 
Case No. 14-10-21 

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{¶44} Furthermore, there was evidence that illustrated Jeremiah’s 

uncooperative behavior in terms of providing his financial records to Megan. Not 

only did Jeremiah file a motion for protective order on September 3, 2009 in 

regards to his financial records, but he requested that his bank, Richwood Bank, 

similarly file a motion for protective order, which it did on October 23, 2009. 

Moreover, despite several discovery requests that specifically asked him to 

provide all financial records, Jeremiah chose, on his own accord, to only provide 

his tax returns. At the January 28, 2010 hearing, on cross-examination, Jeremiah 

was asked about the additional financial records he used because he was a selfemployed farmer, and Jeremiah responded: 

Q. Do you use Quicken or Quickbooks or any other computer 

program to assist you in keeping track of your checkbook? 

A. Yes. I use Quickbooks. 

Q. Did you provide a copy of that? 

A. No. 

Q. Why not? 

A. Well, I didn’t think it was relevant. 

Q. You didn’t think it was relevant? 

A. Well, I looked on line. It said you need my taxes. 

Q. I’m sorry? 

A. On line it says that you need my taxes. 

Q. On line? 

A. The Union County guidelines. 

Q. What are you looking at on line that you’re referring to the 

instruction to respond to discovery? 

A. I don’t know. 

Q. Well, you just testified that something you’re looking at, 

you don’t know all of a sudden? 
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A. I looked in Union County guidelines for figuring child 

support and they said you need my taxes. 

Q. Okay. 

A. So that’s what I gave you. 

(Jan. 28, 2010 Tr. at 157-58). Jeremiah was continually uncooperative during the 

proceedings, and at one point, the magistrate had to interject in the proceedings: 

The Court: All right. But let me – the fact of the matter is that 

the witness has testified in a rather incredible manner that he 

has no real insight on what his income and expenses have been in 

the farm over the past couple of years. He has no knowledge, 

none whatsoever of the balances of his accounts. He unilaterally 

decided that the financial records maintained in Quicken were 

not relevant to this case. Quite candidly, the entire financial 

assets of the – of the father are why they otherwise wouldn’t be 

relevant, the lack of candor, I’m going to give Mr. Greco a little 

bit more latitude. Because we’re looking at – we are – we are in 

fact looking at what he is funding. For example, what are his 

crops in the bins now? How often is he selling those crops? 

What’s the income being generated? When are those things 

being paid? 

(Id. at 196). Additionally, despite the trial court’s order mandating Jeremiah to 

provide all financial records to Megan for purposes of calculating child support, 

we note that Megan still had to file an order to compel because Jeremiah had yet to 

provide all of his financial records to her by the date specified in the trial court’s 

order. Even Jeremiah concedes in his appellate brief that the trial court may have 

acted appropriately based on the fact that it granted Megan’s motion to compel. 

Nevertheless, while not all of Jeremiah’s actions were in contravention to court 

orders, his actions certainly delayed and prolonged the duration of the child 
Case No. 14-10-21 

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support proceedings, which finally occurred on May 27, 2010, and increased the 

expenses incurred by Megan. 

{¶45} Finally, we note that it is clear that there was a major disparity in 

income between Jeremiah and Megan. Jeremiah claims that Megan’s lack of 

income was because she chose to be voluntarily unemployed by choosing to 

pursue a college degree, rather than obtaining employment. However, not only is 

the parties’ income explicitly provided for in R.C. 3105.73 as a factor to consider, 

even Jeremiah concedes in his appellate brief that there was an actual disparity in 

the parties’ income in this particular case. Furthermore, the disparity of income 

was only one of several reasons why the trial court found that it was equitable to 

award Megan attorney fees. 

{¶46} According to the statutory language of R.C. 3105.73(B), the trial 

court is allowed to consider the parties’ income, the conduct of the parties, and 

“any other relevant factors.” Here, the trial court consider Jeremiah’s aggressive 

trial strategy and tactics, Jeremiah’s conduct, in particular his refusal to comply 

with the statutory mandates and court orders, and the disparity of the parties’ 

income. Given the above evidence, we cannot say that the trial court abused its 

discretion in finding that an award of $40,000.00 to Megan in attorney fees was 

equitable in this particular case. 
Case No. 14-10-21 

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{¶47} Furthermore, while Jeremiah does not specifically raise an issue 

regarding the reasonableness of the award, we note that the record supports that an 

award of $40,000.00 was reasonable. At the January 29, 2010 hearing on 

Jeremiah’s motions for reallocation of parent rights and change in parenting time, 

Megan testified that she had so far spent $40,000.00 in attorney fees. (Jan. 29, 

2010 Tr. at 107). She stated that she had borrowed this amount from her parents 

to pay her attorney so far and, despite the fact that they were her parents, Megan 

said she intended to pay them back. (Id. at 107-08). In addition, at that same 

hearing, Megan’s father, Jed Rausch, testified that Megan had so far borrowed 

$40,000.00 from him to pay her legal fees. (Id. at 124). Megan’s father also 

stated that, even though Megan was his daughter, he expected her to repay that 

amount in the future. (Id.). Megan additionally presented evidence at the May 27, 

2010 hearing, which concerned Megan’s motions for child support and for 

attorney fees, that she had incurred, in total, $58,634.00 in attorney fees for legal 

representation in opposing Jeremiah’s post-decree motions, seeking orders to 

compel discovery, and seeking a modification of child support. (May 27, 2010 Tr. 

at 12). 

{¶48} It is clear that by awarding Megan $40,000.00 in attorney fees, the 

trial court imposed the amount of money Megan had spent in defending the 

motions filed by Jeremiah in regards to the reallocation of parental rights and 
Case No. 14-10-21 

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change in parenting time. Since the remainder of the proceedings dealt with 

Megan’s motions for child support and attorney fees, the additional $18,000.00 

was spent in litigating her motions as opposed to defending against Jeremiah’s 

motions. As such, we believe that the amount awarded was reasonable under the 

circumstances. 

{¶49} Overall, given the particular circumstances of this case, and the 

applicable statutory language, we cannot say that the trial court abused its 

discretion in awarding Megan $40,000.00 in attorney fees. 

{¶50} Jeremiah’s second assignment of error is, therefore, overruled. 

{¶51} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW and WILLAMOWSKI, J.J., concur. 

/jlr