[Cite as A.H. v. T.H., 2023-Ohio-1969.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

A.H., :

Plaintiff-Appellant, :

No. 111784

v. :

T.H., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 15, 2023 

Civil Appeal from the Cuyahoga County Court of Common Pleas

Domestic Relations Division

Case No. DV-21-385076

Appearances:

A.H., pro se.

T.H., pro se. 

MARY EILEEN KILBANE, P.J.:

Plaintiff-appellant A.H. appeals from the trial court’s judgment entry 

assessing attorney fees against her and finding that she engaged in frivolous 

conduct in her divorce proceedings against defendant-appellee T.H. For the 

reasons that follow, we affirm.
Factual and Procedural History

The following background comes from the lower court’s July 1, 2022 

judgment entry. On January 14, 2021, in Cuyahoga D.R. No. DR-21-383815, T.H.

filed a complaint for divorce against A.H. In his complaint, T.H. requested a 

temporary protection order (“TPO”) enjoining A.H. from removing the parties’ 

minor child, W.H., born April 10, 2019, from the state of Ohio without written 

consent or order from the court; enjoining A.H. from communicating with T.H.’s 

business associates and/or clients; and restraining A.H. from abusing, harassing, 

molesting, threatening, or physically injuring T.H. and the minor child. On March 

1, 2021, the court held a hearing on the request for a TPO and other motions filed 

by the parties. On March 2, 2021, the Court filed a judgment entry issuing T.H. a 

TPO for the pendency of the divorce case.

On April 22, 2021, A.H. filed a motion to reconsider the court’s 

March 2, 2021 judgment entry, requesting changes to the language of the judgment 

entry and that the restraining order be made reciprocal, alleging that the entry 

could reasonably lead to harm to her reputation. 

Shortly thereafter, on April 27, 2021, A.H. filed a petition for an ex 

parte domestic violence civil protection order (“DVCPO”) pursuant to R.C. 3113.31, 

seeking protection for herself and for W.H., initiating the proceedings in the 

underlying case. The magistrate conducted an ex parte hearing and issued an ex 

parte civil protection order for W.H. but declined to issue an ex parte DVCPO for 

A.H.
On May 19, 2021, three weeks after A.H. represented to the 

magistrate that the parties’ minor child needed protection from T.H., the parties 

reached a settlement in their divorce case, including a shared parenting plan that 

provided for parenting time to be shared approximately equally between A.H. and 

T.H. The parties, in court with their respective counsel, affirmed under oath that 

they entered into the agreement knowingly and voluntarily and that the shared 

parenting plan was in the best interests of W.H.

On June 3, 2021, the court was set to hold a hearing on A.H.’s 

petition for a DVCPO in relation to W.H. T.H. was present with his counsel, but 

A.H. failed to appear. Approximately 20 minutes before the scheduled hearing, 

A.H. called the domestic violence department and stated that she did not wish to 

go forward with her petition for DVCPO as it related to W.H. A.H. indicated that 

she was in her car taking W.H. to preschool but would be willing to sign an entry of 

dismissal via email.

Subsequently, the domestic violence department staff emailed A.H. 

a judgment entry of dismissal requesting that the court dismiss the petition without 

prejudice, which A.H. signed and emailed back.

At the June 3, 2021 hearing, the magistrate read the judgment entry 

of dismissal into the record. T.H. objected to the petition being dismissed without 

prejudice and requested the matter be dismissed with prejudice and requested an 

award of reasonable attorney fees. Specifically, in making his objection, T.H. stated 

the following: on May 19, 2021, the parties agreed to a shared parenting plan; they 
agreed that both parties would be named residential and custodial parents of W.H.; 

A.H. stated under oath that shared parenting was in the best interest of W.H.; T.H.’s 

counsel spent significant time and resources preparing for the June 3, 2021 DVCPO 

hearing; the parties had engaged in open discovery for several weeks; A.H. failed to 

appear for the June 3, 2021 hearing and only contacted the court 20 minutes prior 

to the hearing to dismiss the petition; and A.H. used the domestic violence case to 

attempt to manipulate the parties’ divorce case.

On June 8, 2021, the court issued its judgment entry dismissing the 

petition with prejudice and took T.H.’s request for attorney fees under advisement.

On July 7, 2021, T.H. filed a motion for award of court costs, 

reasonable attorney fees, and other reasonable expenses. The court scheduled a 

hearing on the motion for August 17, 2021.

At the August 17, 2021 hearing, A.H. testified that because she 

believed that a separate criminal case initiated against T.H. would result in a 

protection order, she elected not to proceed with the DVCPO. A.H. also testified 

that in the divorce proceedings, she entered into a settlement with T.H. that 

included shared parenting. Specifically, A.H. testified:

Yes, my understanding, well I was like, you know what? I’m just going 

to get this divorce done because with respect to there were two pieces 

in my mind, obviously financial, and then with [W.H.]

With [W.H.] I thought there’s no way that the system is going to allow 

this man to have parenting time. There’s no way, so I could agree to 

this, but there’s the Civil Protection Order, and then there will be the 

criminal protection order. This is like a loser like the gravy train, it’s 
not real, I thought I was agreeing to something not real that was not 

going to happen.

T.H.’s counsel also testified at the hearing as to the attorney fees billed to T.H. in 

preparation to defend against the DVCPO.

Almost a year later, on July 1, 2022, the trial court granted T.H.’s 

motion for award of court costs, reasonable attorney fees, and other reasonable 

expenses. The court found A.H. engaged in frivolous conduct pursuant to R.C. 

2323.51(A)(2)(a)(i) and that T.H. was adversely affected by A.H.’s frivolous 

conduct. The court further found that T.H. was entitled to an award of reasonable 

attorney fees; that T.H.’s counsel’s billed hours of 166.75 were reasonable; and that 

a reasonable attorney fee in the matter was $66,700. Thus, the court ordered A.H. 

to pay T.H. $66,700.

Specifically, the court made the following findings of fact and 

conclusions of law, in relevant part:

On July 7, 2021, [T.H.] filed his motion for award of court costs, 

reasonable attorney fees and other reasonable expenses following 

[A.H.’s] dismissal of her petition for DVCPO. In his brief, [T.H.] alleges 

the following: [A.H.] only filed the DVCPO after failing to extort a 

temporary support agreement; [A.H.] never feared for the safety of the 

minor child, W.H.; and [A.H.] never intended to go forward with the 

DVCPO full hearing. [T.H.] further states that he incurred significant 

legal expenses preparing for the full hearing on the DVCPO. [T.H.] 

requested an oral hearing on his motion which was subsequently set for 

August 17, 2021 before [the] magistrate.

Present at the August 17, 2021 hearing on [T.H.’s] motion for attorney 

fees were A.H., pro se, and T.H., with counsel. [T.H.] called [A.H.] as a 

witness and his attorney to testify on attorney fees. [A.H.] also testified 

on her own behalf. The court admitted into evidence [T.H.’s] exhibits 

A pages 20, 21, 45, 46, and 51; X; AA; FF page 114; and YY. [A.H.] did 

not enter any exhibits into evidence.
At the August 17, 2021 hearing [A.H.] was questioned as to why she 

filed the petition for ex parte DVCPO on April 26, 2021. [A.H.] testified 

that she filed the DVCPO because she believed that on four separate 

occasions [T.H.] injured their minor son and she feared for his safety. 

[A.H.] testified that on four separate occasions she observed marks on 

the minor child after picking him up from daycare. [A.H.] concluded 

that the marks must have been caused by [T.H.] despite W.H. having 

not been in his care the prior twelve hours. [A.H.] also testified that 

she never asked the daycare whether they had seen the marks or if the 

injuries had occurred at the daycare when she initially observed them. 

[A.H.’s] reasoning was that it was a good school and they would have 

let her know if W.H. was injured in their care. In support of her 

allegations, [A.H.] testified that a neutral third party reported W.H.’s 

injuries to Children’s Services. Upon further examination, [A.H.] 

admitted that she knew the neutral third party was W.H.’s daycare

because [A.H.] told W.H.’s daycare that [T.H.] had caused injuries to 

W.H. [A.H.] also testified that she was aware that the school was a 

mandated reporter.

[T.H.] questioned [A.H.’s] motive for filing the DVCPO and about 

several text messages she sent to [T.H.] In messages sent February 

2021 [A.H.] asks [T.H.] to “pay for everything up to $9,000.00 per 

month” and requested a settlement that was the same as his prior 

marriage, despite his prior marriage being significantly longer than his 

marriage to [A.H.] Another message allegedly sent by A.H. questioned 

why [T.H.] was obligated to pay his not yet ex-wife support of upwards 

of $9,000.00 a month during the pendency of that divorce, even 

though [T.H.] was living with and engaged to [A.H.] [A.H.’s] message 

stated her low opinion of [T.H.] and alleged that [A.H.] and their minor 

son are not important to [T.H.] [A.H.] also sent a text message to [T.H.] 

in February 2021 again requesting [T.H.] pay her expenses because he 

was able to pay support in his previous marriage. The following week 

[A.H.] sent [T.H.] text messages that included disparaging language in 

reference to [T.H.] In that same message [A.H.] sent a draft brief she 

planned to file in relation to her request for temporary spousal support. 

She testified that the brief contained several allegations of domestic 

violence and that she planned to file it the following Monday. When 

questioned at the August 17, 2021 hearing as to whether the text 

message was an attempt to coerce [T.H.] to agree to her support 

demands, [A.H.] replied, “I’m trying to think. I mean, I wasn’t going to 

protect him from the truth anymore. Like the truth needs to be told. 

And I, you know what? I’m glad he didn’t pay me because now he’s 

going to jail.”
At the August 17, 2021 hearing, [A.H.] testified that on May 19, 2021, 

less than four weeks after she had filed for the DVCPO, she entered into 

a shared parenting agreement, in-court and on the record, with [T.H.] 

that named each party residential parent and shared parenting time 

[divided] almost equally between the parties. [A.H.] also testified 

under oath at the May 19, 2021 hearing in the divorce case that she 

believed the shared parenting agreement was fair, just, and equitable

and that it was in the best interests of their minor son. In addition, 

[A.H.] admitted that in her testimony on May 19, 2021 she was not 

coerced or forced to sign the shared parenting agreement. When 

questioned by counsel for [T.H.] as to why she would agree to shared 

parenting when she also claimed that she feared for W.H.’s safety, she 

stated that she did not ever believe the shared parenting agreement 

would “come into fruition” because [T.H.] had been indicted criminally 

and it was just “common frickin sense” that the Court wouldn’t allow 

[T.H.] to have parenting time. [A.H.] admitted that although she 

agreed to the parenting plan on the record, she did not inform the court 

that she would not abide by the parenting plan.

[A.H.] also testified to why she dismissed the DVCPO just minutes prior 

to the start of the full hearing on June 3, 2021. She stated that she 

believed she would be issued a restraining order in the criminal case, 

so she did not need a second one. She claimed to have been informed 

that the court was working on a protection order that she would receive 

by June 1, 2021. When she did not receive anything on June 1, 2021 

she believed she would receive it before [T.H.’s] next parenting time 

scheduled for June 8, 2021. However, [A.H.] did not have any 

witnesses or exhibits to back up her assertions. [A.H.] admitted that 

pursuant to the trial order for the June 3, 2021 hearing, she was to have 

her witness list filed at least two weeks prior, on or before May 20, 2021. 

She also admitted that she was aware that [T.H.] was preparing for 

trial. She received exhibits and a witness list and all kinds of 

“intimidating stuff.” She stated that she could not proceed with the 

hearing because she did not have a lawyer and [T.H.] had sent her “all 

that stuff.”

The other witness to testify at the August 17, 2021 hearing was [T.H.’s] 

counsel. His testimony was limited only to attorney fees. Counsel 

testified that he and his partner were retained to defend against 

criminal charges and the DVCPO. The total hours billed in preparation 

for the full hearing on the DVCPO equaled 160.45 billable hours. The 

total amount billed in preparation for the DVCPO hearing is 

$78,104.50. Counsel also testified that his firm spent 6.3 hours 
preparing for the hearing on attorney fees for a billable amount of 

$3,748.50. The total amount of [T.H.’s] attorney fees is $81,853.00.

The court must look to [A.H.’s] own behaviors in determining whether 

the filing of the DVCPO was frivolous. The parties were married only 

six months when [T.H.] filed for divorce. [A.H.] wrongly believed she 

was entitled to support equal to that of [T.H.’s] former wife, despite that 

marriage having lasted approximately two decades. [A.H.] was 

incredulous that [T.H.] was required to pay support even during the 

pendency of [T.H.] and his ex-wife’s divorce. When faced with the 

reality that she would not be compensated to her satisfaction she 

threatened to use the court’s divorce process as leverage by filing an 

affidavit detailing alleged incidents of domestic violence. In a text she 

informed [T.H.] that she drafted the brief herself and intended to file it 

herself so that her counsel could not modify the brief. She 

subsequently, by and through counsel, filed the affidavit in support of 

her motion for temporary support, though it should be noted that her 

counsel did not sign the document, only executed the service. The 

affidavit did not contain any financial information or legal basis for an 

award of temporary support despite [A.H.] being a licensed attorney in 

good standing.

On March 2, 2021, [T.H.] was granted a temporary restraining order 

enjoining [A.H.] from abusing, harassing, threatening or physically 

injuring [T.H.] On April 22, 2021, [A.H.] filed a motion to reconsider 

requesting the judgment entry granting [T.H.’s] temporary restraining 

order be modified and made reciprocal because the implication that 

[A.H.] harmed [T.H.] or their minor child was harmful to her personal 

and professional standing in the community. [A.H.] does not allege 

that she is fearful of [T.H.], or that she fears for her child, which is 

curious because she testified at the August 17, 2021 hearing for attorney 

fees that she was certain on April 9, 2021 that [T.H.] had caused the 

injuries to their minor child W.H. It was only after the court issued the 

temporary restraining order, after [A.H.] filed her motion to 

reconsider, and after the court denied her request for support, that 

[A.H.] used her only remaining leverage, an ex parte DVCPO.

In addition, on May 19, 2021, [A.H.] knowingly and voluntarily entered 

into a shared parenting plan with [T.H.] in which she agreed to share 

custody of W.H. [A.H.], under oath and represented by counsel, agreed 

that the shared parenting plan was in W.H.’s best interests, despite the 

fact that only three weeks prior she obtained an ex parte DVCPO 

alleging that W.H. needed protection from [T.H.] 
The full hearing on the DVCPO was scheduled for June 3, 2021. [T.H.] 

and his counsel spent significant time preparing for the hearing. [T.H.] 

issued numerous subpoenas, filed deposition transcripts, exhibit lists, 

witness lists, motions, and a trial brief in preparation for the full 

hearing. [T.H.] was in strict compliance with the magistrate’s trial 

orders filed May 14, 2021. [A.H.] failed to file a trial brief or any exhibit 

or witness lists as required by the trial order. 

On June 3, 2021, [T.H.] appeared for trial with counsel and several 

witnesses prepared to testify. [A.H.] failed to appear, but rather called 

the Court approximately 20 minutes prior to the start of the hearing 

requesting a full dismissal. When questioned at the August 17, 2021 

hearing as to why she waited until just before the hearing to call and 

dismiss her petition she testified that she believed she would be given 

a restraining order in the pending criminal case and was waiting for 

confirmation before dismissing the DVCPO. [A.H.] dismissed the 

DVCPO despite never receiving any confirmation and knowing that 

there would be no active restraining order at that time.

This court goes to great lengths to lay out the precise sequence of events 

in this matter because it is evidence of [A.H.’s] state of mind when filing 

for the DVCPO. [A.H.] is a licensed attorney in the state of Ohio. She 

claims numerous times in her testimony to not understand how the law 

works. However, even if that is the case, [A.H.] certainly has the ability 

and knowledge to familiarize herself with the laws relevant to her 

situation. Instead, she feigned willful ignorance in an attempt to 

insulate herself from the consequences of her actions. [A.H.] 

incorrectly assumed she would receive a large financial settlement in 

the divorce case despite only being married to [T.H.] for six months. 

[A.H.] wanted the same amount of support as [T.H.’s] former spouse 

despite no legal basis existing for such an award. When it became clear 

that [T.H.] was not going to agree to such a settlement, [A.H.] 

threatened [T.H.] with domestic violence allegations. [A.H.] then 

followed through on that threat by filing a petition for an ex parte 

DVCPO for herself and W.H. The court could not grant the ex parte 

DVCPO for [A.H.] but did for the minor child based on [A.H.’s] 

allegations that [T.H.] harmed W.H. on and before April 9, 2021. 

However, [A.H.] never mentioned the alleged harm when asking the 

court to reconsider the temporary restraining order on April 22, 2021. 

The alleged harm was not mentioned when [A.H.] agreed to the shared 

parenting plan. [A.H.], represented by counsel, and herself a licensed 

attorney, testified under oath at the May 19, 2021 final divorce hearing 

that shared parenting was in W.H.’s best interests.
The court must also conclude that [A.H.] never intended to go forward 

with the DVCPO full hearing, despite being aware that [T.H.] spent 

significant time, money, and resources to prepare for this hearing. 

[A.H.] claims she was waiting on a protection order in the criminal 

case, but again, [A.H.] is a licensed attorney. She is fully capable of 

familiarizing herself with the procedure for securing a protection order 

in the criminal matter. Her willful ignorance in the criminal matter 

cannot and should not be used as a shield from the consequences of her 

actions in the civil domestic violence action.

The most significant evidence of [A.H.’s] intent are her own words. At 

the August 17, 2021 hearing [A.H.] stated that she was glad that [T.H.] 

did not “pay” her because... “he is going to jail.” In other words, had 

[T.H.] agreed to her demands, she would not have filed the criminal 

charges against him. It can be inferred that the DVCPO was filed for 

this same reason. [A.H.] sought to harass and maliciously injure [T.H.] 

with the DVCPO, despite the fact that there was no evidence that [A.H.] 

actually feared for W.H.’s safety. She also sought to destroy [T.H.’s] 

reputation and professional standing within the legal community. 

[A.H.] failed to dismiss the action prior to the hearing date, to delay the 

proceedings, aware that [T.H.] would spend significant time, money, 

and resources preparing for the hearing. After reviewing the entirety 

of the record it is clear that [A.H.’s] petition for a DVCPO was frivolous 

as defined in R.C. 2323.51. Not only was [A.H.’s] conduct frivolous, but 

it also appears from the record that [A.H.’s] conduct was vindictive. 

[T.H.] was adversely affected by [A.H.’s] frivolous conduct and is 

entitled to an award of reasonable attorney fees.

At the August 17, 2021 hearing on attorney fees [T.H.’s] counsel 

testified that the attorney fees billed in preparation to defend against 

the DVCPO and the resulting attorney fee hearing are $81,853.00 for 

166.75 billable hours. [A.H.] did not question [T.H.’s] counsel 

regarding the reasonableness of the total hours or amount billed. 

However, the court is required to do its own analysis to determine 

reasonableness. Here, [T.H.’s] counsel had a limited amount of time to 

do their own investigation and prepare for the June 3, 2021 hearing. It 

is not unreasonable that [T.H.’s] counsel felt it prudent to have two 

attorneys working simultaneously on the matter.

Further, the amount of discovery and preparation [T.H.’s] counsel 

required to defend against [A.H.’s] frivolous claim is reasonable. [T.H.] 

needed a comprehensive and aggressive defense to prevail in the 

DVCPO full hearing on June 3, 2021. Therefore, the court finds, based 
on the totality of the circumstances, the total number of hours billed to 

prepare for the civil hearing on June 3, 2021 to be reasonable.

[T.H.] has requested attorney fees in the amount of $81,853.00. 

[T.H.’s] counsel are both highly skilled and experienced attorneys and 

well-respected members of the legal community. The serious nature of 

[A.H.’s] accusations warranted the retention of counsel with the legal 

expertise necessary to mount a significant defense. Although the court 

recognizes the limited financial resources of [A.H.], this is not meant to 

minimize [her] egregious conduct. Therefore, the court finds that a 

reasonable attorney fee in this matter is $66,700.00.

A.H. appeals, presenting five assignments of error for our review:

I. The trial court erred in assessing attorney fees against a petitioner in 

a domestic violence civil protection order proceeding.

II. The trial court erred in relying on evidence outside of the record to 

find that [A.H.] engaged in frivolous conduct within the purview of R.C. 

2323.51.

III. The trial court erred in considering [A.H.’s] decision to voluntarily 

dismiss her petition for a domestic violence civil protection order 

without prejudice as well as her motives behind her decision frivolous 

conduct within the purview of R.C. 2323.51.

IV. The trial court erred in finding that [A.H.] engaged in frivolous 

conduct within the purview of R.C. 2323.51.

V. The trial court abused its discretion in finding that [T.H.’s] attorneys’ 

fees were reasonable as such a finding is not supported by competent, 

credible evidence in the record.

Legal Analysis

Standard of Review

No single standard of review applies in R.C. 2323.51 cases. Lozada 

v. Lozada, 11th Dist. Geauga No. 2012-G-3100, 2014-Ohio-5700, ¶ 13, citing 

Wiltberger v. Davis, 110 Ohio App.3d 46, 51, 673 N.E.2d 628 (10th Dist.1996). 

Rather, in a frivolous conduct appeal, we must consider mixed questions of law and 
fact. Id., citing Judd v. Meszaros, 10th Dist. Franklin No. 10AP-1189, 2011-Ohio4983, ¶ 18. A trial court’s factual findings must be given deference, and, as such, 

we will not disturb such determinations absent an abuse of discretion. Id., citing 

McPhillips v. United States Tennis Assn. Midwest, 11th Dist. Lake No. 2006-L-235, 

2007-Ohio-3595, ¶ 28. The term 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, 450 N.E.2d 1140 

(1983); Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463. 

Legal questions are reviewed de novo. Lozada at ¶ 13.

I. Attorney Fees in a DVCPO Proceeding

In A.H.’s first assignment of error, she argues that the trial court 

erred in assessing attorney fees against her in a DVCPO proceeding. Specifically, 

A.H. argues that the assessment of attorney fees against a petitioner in a DVCPO 

proceeding violates both public policy and relevant statutes. A.H. argues that the 

filing of a DVCPO petition pursuant to R.C. 3113.31 constitutes a “special statutory 

proceeding” and therefore does not constitute an “action” under R.C. 2323.51. We 

disagree.

The trial court awarded attorney fees to T.H. pursuant to R.C. 

2323.51. R.C. 2323.51(B)(1) provides that “any party adversely affected by frivolous 

conduct may file a motion for an award of court costs, reasonable attorney’s fees, 

and other reasonable expenses incurred in connection with the civil action or 

appeal.” R.C. 2323.51(A)(1)(a) defines conduct as:
The filing of a civil action, the assertion of a claim, defense, or other 

position in connection with a civil action, the filing of a pleading, 

motion, or other paper in a civil action, including, but not limited to, a 

motion or paper filed for discovery purposes, or the taking of any other 

action in connection with a civil action.

Finally, frivolous conduct is defined in R.C. 2323.51(A)(2)(a)(i) as conduct that 

“obviously serves merely to harass or maliciously injure another party to the civil 

action or appeal or is for another improper purpose, including, but not limited to, 

causing unnecessary delay or a needless increase in the cost of litigation.”

A.H. seeks to create a distinction between a “special statutory 

proceeding” and an “action.” While A.H. is correct that a petition filed under R.C. 

3113.31 is a special proceeding, it does not follow that such a special proceeding 

does not qualify as an “action” pursuant to R.C. 2323.51. The Ohio Supreme Court 

has found that “[a] ‘civil action’ has been defined as an ‘[a]ction brought to enforce, 

redress, or protect private rights. In general, all types of actions other than criminal 

proceedings.” Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-

Ohio-1507, 989 N.E.2d 35, ¶ 15, quoting Black’s Law Dictionary 222 (5th Ed. 1979). 

In deciding whether the trial court properly awarded husband attorney fees for 

defending his wife’s frivolous petition for a DVCPO, the Eleventh District Court of 

Appeals found that the Ohio Supreme Court’s definition of “civil action” “envelops 

the relief sought in a petition for a domestic violence civil protection order; namely, 

protection of the person, oneself, or one’s child.” Lozada, 11th Dist. Geauga No. 

2012-G-3100, 2014-Ohio-5700, at ¶ 36. We agree.
A.H. points to systemic barriers and inequitable access to justice for 

domestic violence petitioners as a rationale for precluding the assessment of 

attorney fees in this case. What this argument ignores is that this case involves 

frivolous conduct. Finding that attorney fees can be assessed for frivolous conduct 

would not, as A.H. asserts, defeat and deter domestic violence victims from coming 

forward and seeking legal protection. It will, however, as the court in Lozada 

stated, “merely [discourage] using the legal system as a forum for gamesmanship 

or harassment.” Lozada at ¶ 40. We decline to adopt A.H.’s interpretation of the 

interaction between R.C. 3113.31 and 2323.51, which would “operate to remove all 

special proceedings from the operation of the frivolous conduct statute” and 

undermine the General Assembly’s intention to protect litigants from abuses of the 

legal process. Id. For these reasons, A.H.’s first assignment of error is overruled.

II. Frivolous Conduct

In A.H.’s second assignment of error, she argues that the trial court 

erred in relying on evidence outside of the record to find that she engaged in 

frivolous conduct pursuant to R.C. 2323.51. In her third assignment of error, A.H. 

argues that the trial court erred in considering A.H.’s decision to voluntarily dismiss 

her DVCPO petition without prejudice, as well as the motives behind her decision, 

to be frivolous conduct pursuant to R.C. 2323.51. In her fourth assignment of error, 

A.H. argues that the trial court erred in finding that she engaged in frivolous 

conduct pursuant to R.C. 2323.51. Because A.H.’s second, third, and fourth 
assignments of error each involve the trial court’s determination that A.H. engaged 

in frivolous conduct, we will address them together. 

A.H. argues that the trial court improperly relied exclusively on 

information outside of the record in determining that she engaged in frivolous 

conduct pursuant to R.C. 2323.51. Specifically, A.H. asserts that the record 

contains no evidence of the duration of her marriage to T.H. and the only document 

from the parties’ divorce proceedings that was made a part of the record in this case 

is a transcript from the May 19, 2021 settlement hearing. We are not persuaded by 

A.H.’s assertions.

With respect to the duration of the parties’ marriage, we note that 

the record contains testimony from A.H. herself as to the duration of the marriage. 

The record also includes the entire transcript of A.H.’s deposition; A.H. did not 

object to the introduction of the transcript as evidence. Further, the record contains 

numerous pleadings and judgment entries from the divorce proceedings. 

Therefore, the trial court did not err because it did not rely on evidence outside of 

the record. A.H.’s second assignment of error is overruled.

A.H. argues in her third assignment of error that the trial court erred 

in considering her decision to voluntarily dismiss her DVCPO petition with 

prejudice, and her motives for doing so, in determining that she had engaged in 

frivolous conduct pursuant to R.C. 2323.51. In support of this argument, A.H. notes 

that the “exercise of a right of voluntary dismissal with prejudice cannot be 
construed as frivolous or fraudulent conduct.” Wheeler v. Best Emp. Fed. Credit 

Union, 8th Dist. Cuyahoga No. 92159, 2009-Ohio-2139, ¶ 43.

As an initial matter, we note that while the trial court noted A.H.’s 

attempt to voluntarily dismiss her DVCPO petition in its judgment entry finding 

that she had engaged in frivolous conduct, nothing in the record suggests that the 

trial court determined that this attempt itself constituted frivolous conduct. 

Rather, the trial court reasonably considered all of A.H.’s conduct related to the 

filing of the DVCPO petition in determining that she ultimately engaged in frivolous 

conduct. Further, a Civ.R. 41(A)(1) voluntary dismissal does not divest a trial court 

of jurisdiction to consider a subsequently filed motion for sanctions pursuant to 

R.C. 2323.51; to hold otherwise would effectively leave an aggrieved party without 

a remedy to pursue a claim for frivolous conduct. ABN AMRO Mtge. Group, Inc. 

v. Evans, 8th Dist. Cuyahoga No. 96120, 2011-Ohio-5654, ¶ 7. Additionally, we 

reiterate that the trial court ultimately dismissed A.H.’s petition with prejudice 

pursuant to Civ.R. 41(A)(2).

Moreover, a review of the record, and specifically the trial court’s 

judgment entry, shows that the trial court was in no way penalizing A.H. for 

attempting to voluntarily dismiss her DVCPO petition. To the contrary, the trial 

court held that A.H. “failed to dismiss the action prior to the hearing date,” opting 

instead to attempt to dismiss the action minutes before trial, “to delay the 

proceedings, aware that [T.H.] would spend significant time, money, and resources 
preparing for the hearing.” For these reasons, A.H.’s third assignment of error is 

overruled.

In her fourth assignment of error, A.H. argues that the trial court 

erred in finding that she engaged in frivolous conduct pursuant to R.C. 2323.51. 

A.H. attempts to support this assignment of error with an extensive summary of the 

alleged conduct she cited in support of her petition for DVCPO. Specifically, she 

points to her testimony at the ex parte hearing on the DVCPO and at the hearing on 

T.H.’s motion for attorney fees as an “undisputed” account of T.H.’s abuse against 

her.

Where a trial court determines that a party’s conduct serves merely 

to harass or maliciously injure another party pursuant to R.C. 2323.51(A)(2)(a)(i), 

the trial court’s factual determinations are given substantial deference and are 

reviewed for an abuse of discretion. Wheeler, 8th Dist. Cuyahoga No. 92159, 2009-

Ohio-2139, at ¶ 42, citing Cleveland Indus. Square, Inc. v. Dzina, 8th Dist. 

Cuyahoga Nos. 85336, 85337, 85422, 85423, and 85441, 2006-Ohio-1095.

The question of whether A.H.’s DVCPO petition had merit is not at 

issue in this appeal. Moreover, where A.H.’s petition was dismissed prior to a full 

hearing, we note that her account of T.H.’s alleged abuse was necessarily 

undisputed.1 While A.H. obviously disagrees with the trial court’s decision, she has 

1 Of course, to the extent that the record reflects extensive preparation for trial on 

the part of T.H., and to the extent that T.H. filed a motion for attorney fees arguing that 

A.H. engaged in frivolous conduct, it can reasonably concluded that A.H.’s version of 

events was, in fact, disputed.
failed to demonstrate how the trial court abused its discretion in finding that she 

engaged in frivolous conduct.

Our review of the record reveals that the trial court did not abuse its 

discretion in determining that A.H. engaged in frivolous conduct. Our review of the 

record, including text messages from A.H., A.H.’s deposition, and A.H.’s testimony 

at the hearing on T.H.’s motion, support the trial court’s findings. A.H. voluntarily 

agreed to shared parenting with T.H. in their divorce proceedings. Several weeks 

later, having failed to secure her desired financial support in the divorce case, A.H. 

filed a DVCPO petition based primarily on conduct she alleged occurred before the 

parties were married. Minutes before the full hearing on the DVCPO was set to take 

place — having failed to comply with the court’s orders regarding this hearing —

A.H. attempted to dismiss her petition based on a seemingly erroneous belief that 

another protection order would be issued. Our review of the record reveals nothing 

indicating that the trial court’s findings were unreasonable, arbitrary, or 

unconscionable. For these reasons, A.H.’s fourth assignment of error is overruled.

III. Attorney Fees

In her fifth and final assignment of error, A.H. argues that the trial 

court abused its discretion in finding that T.H.’s attorneys fees were reasonable 

because such a finding is not supported by competent, credible evidence in the 

record.

Pursuant to R.C. 2323.51(B)(1), “any party adversely affected by 

frivolous conduct may file a motion for an award of court costs, reasonable 
attorney’s fees, and other reasonable expenses incurred in connection with the civil 

action or appeal.” “If the representation is not on a contingent fee basis, the amount 

of reasonable attorney fees that may be awarded for frivolous conduct ‘shall not 

exceed’ * * * the attorney’s fees that were reasonably incurred by a party.’” Musial 

Offices, Ltd. v. Cuyahoga Cty., 8th Dist. Cuyahoga No. 108810, 2021-Ohio-2325, ¶ 

35, quoting R.C. 2323.51(B)(3)(b). The decision whether to award attorney fees 

under R.C. 2323.51(B)(1) rests within the sound discretion of the trial court. Id.,

citing Internatl. Union of Operating Engineers v. Laborers’ Internatl. Union of N. 

Am. Local 310, 8th Dist. Cuyahoga No. 104774, 2017-Ohio-1055, ¶ 10. 

In Bittner v. Tri-Cty. Toyota, Inc., the Ohio Supreme Court set forth 

a two-part test for determining what constitutes “reasonable” attorney fees. Bittner 

v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 569 N.E.2d 464 (1991). First, the 

trial court multiplies the number of hours reasonably expended by the attorney by 

a reasonable hourly rate. Id. at 145. Then, the trial court may adjust the fee upward 

or downward based on the factors listed in Prof.Cond.R. 1.5(a). Harris v. Rubino, 

156 Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.3d 106, ¶ 3, citing Bittner at syllabus. 

These factors include the time and labor required, the novelty and difficulty of the 

questions involved, the amount involved and the results obtained, the time 

limitations imposed by the client or the circumstances, and the fees customarily 

charged in the locality for similar legal services. Prof.Cond.R. 1.5(a). “The trial 

court has the discretion to determine which factors to apply, and in what manner 

that application will affect the initial calculation.” Bittner at 146.
The party seeking an award of attorney fees bears the burden of 

demonstrating the reasonableness of the requested fees. Alcorso v. Correll, 8th 

Dist. Cuyahoga No. 110218, 2021-Ohio-3351, ¶ 40. Further, it is well-settled that 

where a court is empowered to award attorney fees, the amount of such fees is 

within the sound discretion of the trial court. Bittner at 146. “Unless the amount 

of fees determined is so high or so low as to shock the conscience, an appellate court 

will not interfere.” Id.

While we generally review a trial court’s decision regarding the 

reasonableness and amount of attorney fees for abuse of discretion, our review of 

the record in this case reveals that A.H. raised no objection to the amount or 

reasonableness of T.H.’s requested attorney fees below. “Absent plain error, a party 

who failed to object below cannot now raise an objection for the first time on 

appeal.” Alcorso at ¶ 44. A.H. also declined the opportunity to cross-examine 

counsel with respect to attorney fees. Following counsel’s testimony about the fees 

incurred, the following exchange took place:

MAGISTRATE: Ma’am, do you have any — as I said, it’s more of an 

accounting. Do you have any questions about the legitimacy of those 

charges and hours?

A.H.: No, Your Honor.

“Plain errors are errors in the judicial process that are clearly

apparent on the face ofthe record and are prejudicial to the appellant.” Wells Fargo

Bank, N.A. v. Lundeen, 8th Dist. Cuyahoga No. 107184, 2020-Ohio-28, ¶ 12,

quoting Macintosh Farms Community Assn.,Inc. v. Baker, 8th Dist. Cuyahoga No.
102820, 2015-Ohio-5263, ¶ 8. In civil cases, review for plain error is to be

conducted “with the utmost caution.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 121,

679 N.E.2d 1099 (1997). Plain error is limited to those “extremely rare cases” in

which “exceptional circumstances require its application to prevent a manifest

miscarriage of justice, and where the error complained of, if left uncorrected, would

have a materially adverse effect on the character of, and public confidence in,

judicial proceedings.” Id. Plain error exists only where the error “seriously affects

the basic fairness, integrity, or public reputation of the judicial process, thereby

challenging the legitimacy of the underlying judicial process itself.” Id. at 122-123. 

“The plain error doctrine should never be applied to reverse a civil judgment simply

because a reviewing court disagrees with the result obtained in the trial court, or to

allow litigation of issues which could easily have been raised and determined in the

initial trial.” Id. at 122.

A.H. has not argued in this appeal that the trial court’s award of 

attorney fees constituted plain error. Our review of the record shows that the 

evidence presented in support of T.H.’s requested amount of attorney fees was 

somewhat limited; one of T.H.’s two attorneys testified as to the number of hours 

spent on his defense of the DVCPO petition, as well as both attorney’s respective 

hourly rates. The record does not contain any invoices or other documentation of 

the fees T.H. incurred, nor does it contain any additional testimony as to the 

reasonableness of T.H.’s requested attorney fees. Despite this, we cannot conclude 

that the trial court’s award of attorney fees in the amount of $66,700 — a downward 
deviation of over $15,000 from the amount T.H. requested — constitutes plain 

error.

In light of the foregoing, we find no plain error in the trial court’s 

award of attorney fees to T.H. Therefore, A.H.’s fifth assignment of error is 

overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court, domestic relations division, to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

LISA B. FORBES, J., and

EMANUELLA D. GROVES, J., CONCUR