Ho v. CoHo v. Co
Cordell Law LLP and Sarah N. Fox, for Appellee Father,
Essig & Evans LLP and Ross M. Evans, for Guardian Ad Litem for the minor child.
{¶1} Plaintiff-appellant Chia Chi Ho (“Mother“) appeals pro se from a divorce decree, raising various assignments of error relating to issues including guardian ad litem (“GAL“) fees, purported due process violations, and alleged ex parte communications. In light of Mother‘s failure to develop many of her arguments on appeal, and in consideration of our review of the record and applicable case law, we must overrule her first six assignments of error. But because the trial court improperly found her in contempt for the nonpayment of GAL fees, we sustain her seventh assignment of error, reversing the trial court‘s judgment in part and remanding this cause with instructions to vacate the June 29, 2020 contempt ordеr.
I.
{¶2} Mother and defendant-appellee Carlos Chua Co (“Father“) were married in 2005 and share one minor child, C.C., born in 2007. In September 2020, Mother filed a complaint for divorce. Prior to filing the complaint, Mother filed and received a civil protection order removing Father from the family home and preventing any contact between Father and their child. As a result of the order, the magistrate ordered a full investigation through the court‘s Dispute Resolution Department in October 2020. An agreed entry filed in November 2020 resolved the pending petition for a civil protection order filed by Mother. Also in November, Father was granted supervised parenting time.
{¶3} A few weeks after the agreed entry resolved the domestic violence matter, Father filed an emergency motion for temporary custody and to suspend Mother‘s parenting time, along with a motion for psychological evaluation. Following a hearing, the trial court granted the emergency motiоn in December 2020. The trial
{¶4} Prior to the parenting and property trials, the parties negotiated and signed a shared parenting plan. At trial, however, the court expressed concerns over whether Mother would cooperate with the plan. The court proceeded to address the parties’ property in September 2021, but reserved judgment on parenting issues. The trial court entered a decision on property in October 2021. A parenting trial was held in March 2022, and the court issued a decision on custody, support, and fees in June 2022.
{¶5} In June 2022, the trial court also issued a contempt order for Mother‘s failure to comply with its order for additional GAL fees—requiring Mother to deposit an additional $20,000—issued in May 2022. The contempt order sentenced Mother to 60 days in the Hamilton County Justice Center and fined her $250. The contempt order was stayed pending this appeal.
{¶6} A decree of divorce was entered in July 2022. The decree encompassed the decisions issued by the trial court upon the conclusion of the property trial and the parenting trial. Mother appealed, and this court determined in May 2023 that the trial court‘s order was not yet final due to its failure to address spousal support. On remand, the trial court made the required changes to finalize the order, and Mother filed a new notice of appeal, which is before us now.
{¶7} We also note that Mother attempted to appeal the domestic violence matter as a part of this action as evidenced by the notice of appeal filed July 8, 2022, which contained the case numbered DV-2001022. But this court‘s September 2, 2022
II.
{¶8} In her first assignment of error, Mother alleges that the trial court erred in conducting ex parte communications with the GAL and/or Father‘s counsel on substantive matters throughout the divorce proceedings. According to Mother, three instances occurred in which the GAL engaged in ex parte communications with the court, as well as one instance of an ex parte communication between Father‘s attorney and the trial court. In this assignment of error, Mother also claims that the nunc pro tunc divorce decree judgment was not served properly.
{¶9} Generally, “[a] judge shall not initiate, receive, permit, or consider ex parte communications[.]”
{¶10} Mother speculates, without pointing to any supporting evidence in the record, that the trial judge engaged in improper ex parte communications with the GAL and Father‘s counsel. She states in her brief that she intends to file a motion to disqualify the trial judge, so perhaps she plans to further pursue this argument at that time. At this point, her only argument centers around signatures on various orders that were obtained outside of her presence. But ex parte communications for non-substantive, administrative purposes, such as obtaining parties’ signatures, is not
{¶11} Mother also takes issue with the court‘s sua sponte issuance of a nunc pro tunc order. But this issue is moot in light of this court‘s prior decision that the nunc pro tunc order was a nullity.
{¶12} Finally, Mother claims that she was not served with the divorce decree. Again, this argument is conclusory and Mother makes no effort to seriously advance it. From our review of the record, the divorce decree directed the clerk to serve notice of the judgment to the parties and the docket indicates that the notice of appealable judgment was served upon all parties, notifying Mother of the judgment of divorce. And regardless, it is well-established in Ohio that “[t]he failure of the clerk to serve notice does not affect the validity of the judgment[.]”
{¶13} We overrule Mother‘s first assignment of error.
III.
{¶14} In her second assignment of error, Mother maintains that the trial court issued various false statements. Specifically, she takes issue with a number of statements made by the GAL regarding Mother‘s mental health conditions thаt the court included in its June 2022 order, as well as the trial court‘s granting of a motion in limine appointing a court-ordered psychologist.
{¶15} Mother cites to provisions of the Ohio Professional Conduct Rules that indicate that it is professional misconduct for lawyers to engage in conduct involving
{¶16} However, Mother failed to include the relevant transcripts in the record that would substantiate her concerns, despite having been requested to do so. Therefore, we must presume regularity in the proceedings. See State v. Gonzales, 151 Ohio App.3d 160, 2002-Ohio-4937, 783 N.E.2d 903, ¶ 21 (1st Dist.) (“When the appellant fails to ensure that the necessary exhibits or transcripts are transmitted to the appellate court, this court has nothing to pass on and must presume regularity in the proceedings in the trial court.“). And the report that Mother references was stricken from the record, so we cannot consider it. See State v. Wilson, 2d Dist. Clark No. 2018-CA-2, 2020-Ohio-2962, ¶ 29 (“[I]n reviewing the trial court‘s judgment, we are limited to the record before the trial court.“). Moreover, Mother does not attempt to explain how the identified statements prejudiced her or otherwise affected the proceedings. Accordingly, Mother cannot prevail on this assignment of error, and we overrule it.
IV.
{¶17} Third, Mother goes on to challenge the GAL fees ordered in this case. Her substantive arguments under this assignment of error focus on the appointment of the GAL and the GAL‘s fees.
{¶18} First, Mother insists that the trial court failed to comply with the requirements of
{¶19} Mother correctly cites the current version of the
{¶20} At the time the GAL was appointed, then, the parties were required to “otherwise agree[]” to a rate that deviates from $175/hour. Here, Mother did just that. In the months following his appointment, the GAL issued multiple invoices that contained his hourly rate. Mother paid $15,000 in GAL fees in March 2021, without objection. Her payment of the fees, in addition to her failure to object to the fees for over four months following the issuance of the first order for pаyment of GAL fees, indicates, at a minimum, her implicit agreement to the GAL‘s rate of $350/hour. Notably, Mother was represented by counsel at the time.
{¶21} While we agree that the total fees accrued were extremely high, and cause us grave concern, as a legal matter, the mandates of former
{¶22} Second, Mother contends that the trial court erred in ordering payment of GAL fees without receiving or reviewing an itemized statement. But attached to the court orders for payment of GAL fees are itemized statements, indicating that the trial court did, in fact, receive and review itemized statements of the GAL fees. And in these orders, the trial court noted that it found the fees to be reasonable. Within this second issue, Mother tosses out a number of unrelated claims. But she fails to explain or make an argument for these claims beyond conclusory statements that these matters involved errors. Nor does she cite to any authority in support of her claims. We therefore disregard these issues. See
{¶23} Third, Mother argues that the trial court erred in refusing to hold hearings on her motions contesting the GAL fees. Again, Mother fails to cite to any authority requiring a trial court to convene a hearing before ruling on a motion in opposition to GAL fees besides claiming that the local rules require it. And there are no requirements in the local rules that a hearing be held on an objection to GAL fees. See
{¶24} The fourth issue raised by Mother touches on various matters relating to the payment and reasonableness of GAL fees. She does not seriously advance any of these argumеnts, but as we understand them, our independent review of the record does not indicate any instances of reversible error.
{¶25} Fifth, Mother argues that the trial court erred in denying her motion to discharge the GAL. Once again, she raises a number of issues without substantiation. She again raises her concerns with the GAL rates, alleged ex parte communications, and the lack of hearings on her motions in opposition to GAL fees, all of which we address above. The only new issue that she features here concerns the trial court‘s denial of her motion to discharge the GAL. But she fails to present any argument as to why she believes the trial court erred. And from our review of the record, the trial court did not abuse its discretion. The trial court noted that it intended to discharge the GAL once the case was concluded, as is standard practice. See
{¶26} Sixth and finally, Mother contends that the trial court erred in allowing the GAL to write and submit the court order for payment of GAL fees. But besides noting this issue in the introduction to this assignment of error, she fails to raise it again or develop it. No analysis, record citations, or authorities are contained in the brief relating to this issue, so we are unable to conduct a review on appeal.
{¶27} We overrule Mother‘s third assignment of error.
V.
{¶28} In her fourth assignment of error, Mother contends that the trial court erred in failing to address premarital assets, gifts, and delayed maintenance that were not disputed at trial.
{¶29}
{¶30} Besides generally alleging that certain premarital assets, gifts, and delayed maintenance were omitted from the court order distributing the parties’ property, Mother fails to identify any specific items that she believes were omitted. Rather, she points us towards page ranges in the trial transcript that discuss various assets, expenses, and gifts.
{¶31} Mother‘s failure to identify any specific items that were omitted from the court order limits our ability to review this assignment of error. But from our independent review of the identified portions of the transcript, we are unable to identify any assets, maintenance, or gifts that were improperly omitted from the trial court‘s order distributing the parties’ property. We therefore overrule this assignment of error.
VI.
{¶32} In the fifth assignment of error, Mother argues that her constitutional due process rights were violated when the trial court struck certain matters without affording her a hearing or providing an explanation for why the matters were stricken. Mother again presents a number of other issues in this assignment of error.
{¶33} First, Mother contends that the trial court abused its discretion when it struck various matters from the record.
{¶34} Second, Mother argues that the trial court erred in providing the shared parenting plan to Father‘s and Mother‘s employers. She argues that “providing false information to [each party‘s] employer does not comply with the law.” But from our review of the record, the factual findings contained in the shared parenting plan comport with the facts in the record. And our review is limited by the fact that Mother fails to identify which information in the shared parenting plan she believes to be “false.”
{¶35} Third, Mother alleges that the trial court erred in not including a parenting time schedule in its final decree. But the final divorce decree does address this issue. With respect to parenting time, the order states: “All parenting time of Mother‘s shall be at the discretion of [C.C.] and Father. [C.C.] shall be able to select the time spent with Mother in order for him to organize his own schedule.” The order goes on to expound on this provision, and also allows Mother to have vacation and extended time with C.C. if C.C. and Father agree. Mother does not acknowledge this or attempt to argue that the trial court erred in so ordering.
{¶36} Fourth and finally, Mother maintains that the trial court erred in granting additional GAL fees after the GAL filed a motion to strike the shared parenting plan. She argues that he used the judicial system to collect clearly excessive fees. But we addressed the GAL fees in the third assignment of error, so this claim is redundant.
{¶37} We overrule Mother‘s fifth assignment of error.
VII.
{¶38} In her sixth assignment of error, Mother contends that the trial court violated her due process rights by denying discovery and failing to rule on certain motions. In this assignment of error, she raises five issues.
{¶39} First, Mother argues, once her domestic viоlence case was transferred to another trial judge, the trial court erred in failing to rule on a motion related to the case after it was transferred. However, this court ordered that any appeals related to the domestic violence case (DV-2002022) would be untimely, foreclosing Mother‘s ability to challenge that case on appeal.
{¶40} Second, Mother takes issue with the trial court‘s denial of the subpoena duces tecum filed by Mother to conduct discovery into the GAL‘s billing practices without first making an in-camera inspection of the files sought.
{¶41} A trial court has broad discretion in discovery matters, including whether to grant or deny a motion to quash a subpoena, and its decision will not be reversed on appeal absent an abuse of discretion. See Kaplan v. Tuennerman-Kaplan, 9th Dist. Wayne No. 11CA0011, 2012-Ohio-303, ¶ 10, citing State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18. Mother points us towards the Twelfth District‘s decision in Hogan v. Hogan, 12th Dist. Butler Nos. CA2002-09-216 and CA2002-09-225, 2003-Ohio-4747, ¶ 29, which held: “We agree that a trial court has discretion to grant a motion to quash a subpoena for a guardian аd litem‘s files if the court finds that it would not be within the children‘s best interest to allow disclosure of the files. But in order to make such a finding, the trial court must first make an in camera inspection of the files sought.” However, Hogan does not cite to any authority in setting forth
{¶42} It is recognized in Ohio that refusing to grant discovery from a GAL during custody cases to protect the child‘s best interest is not an abuse of discretion. See In re J.L.R., 4th Dist. Washington No. 08CA17, 2009-Ohio-5812, ¶ 43; Hogan at ¶ 29. Here, the trial court denied Mother‘s discovery request to review the GAL‘s billing practices, explaining that it did so to protect the relationship between the GAL and C.C. In light of the trial court‘s appropriate rationale for granting the motion to quash as well as the court‘s inherent power to regulate discovery pursuant to
{¶43} As to Mother‘s third argument that the trial court erred in not allowing access to the minor child‘s medical records, she presents this as an issue in the introduction to the assignment of error but fails to addresses it in the substance of the brief. With no argument, law, record citations, or any other sort of analysis on this issue, it is impossible to conduct a review on appeal.
{¶44} Mother‘s fourth argument, relating to the GAL‘s motion for a protective order, is similarly conclusory. She argues that the motion did not comply with the requirements of
{¶45} Fifth and finally, Mother takes issue with the fact that the trial court did not rule on a motion filed by Mother, and also that it issued various orders without holding hearings on the matters.
{¶46} Within this issue, Mother first argues that the court erred in failing to issue a decision or hold a hearing on her motion for contempt regarding parenting time.
{¶47} But “it is well-established that when a trial court fails to rule on a motion, [the appellate] court will presume the motion was overruled.” Sparks v. Sparks, 12th Dist. Warren No. CA2015-10-095, 2016-Ohio-2896, ¶ 12, citing Reynolds v. Reynolds, 12th Dist. Butler No. CA94-08-162, 1995 Ohio App. LEXIS 2401, 6 (June 12, 1995). Assuming the trial court‘s failure to rule on the motion deems the motion overruled, Ohio law also provides, “[A] trial court can reasonably exercise its discretion to refrain from holding a hearing on a motion for contempt that the court intends to deny. * * * [A]nd the movant cannot appeal on grounds of failure to hold a hearing without showing prejudice in that the motion would have been granted[.]” Dyer v. Gomez, 7th Dist. Noble No. 21 NO 0484, 2022-Ohio-1127, ¶ 58, citing Anderson v. Fleagane, 7th Dist. Belmont No. 21 BE 0020, 2022-Ohio-1120, ¶ 59-60. Mother does not make any argument that her motion would have been granted or otherwise attempt to establish prejudice. Moreover, as Father notes, she never filed a request for a hearing or requested the trial court to аddress it at the final hearing in the divorce action. Mother‘s constitutional rights were not violated by the trial court‘s failure to rule on this motion or hold a hearing to address it.
{¶48} Next, Mother takes issue with the trial court‘s December 16, 2020 order that the court issued without first holding a hearing. According to her, this deprived
{¶49} The order to which Mother refers granted an emergency motion filed by the GAL and issued temporary orders regarding parenting time and supervised contact. As far as the record shows, Mother signed the agreed entry regarding the temporary orders that same day and there is no evidence that she requested a hearing or otherwise objected to the order. In light of Mother‘s signature on the agreed entry regarding the orders, as well as her failure to make any concrete argument or cite to any law to support her point, we cannot say that her constitutional rights were violated.
{¶50} Finally, Mother contends that the trial court erred in granting the GAL‘s motion to maintain the temporary custody schedule without a hearing. Again, according to Mother, this deprived her of fundamental rights to notice and a hearing and does not comply with due process requirements.
{¶51} On August 18, 2021, the GAL filed a motion to maintain the temporary schedule, which the court granted without a hearing on August 23. Again, however, Mother points us toward no case law that indicates that failure to hold a hearing on a motion to maintain a temporary custody schedule contravenes her constitutional rights. In fact, in stark opposition to her argument, pursuant to
{¶52} We therefore overrule Mother‘s sixth assignment of error.
VIII.
{¶53} In her seventh and final assignment of error, Mother insists that the trial court erred in using its powers of contempt to enforce payment of GAL fees, arguing under Burke v. Burke (In re Pappas), 8th Dist. Cuyahoga Nos. 101059 and 101060, 2014-Ohio-5279, ¶ 1, that a court cannot use its powers of contempt to compel the payment of GAL fees. Notwithstanding the fact that Mother had already paid thousands of dollars in GAL fees, the trial court‘s June 29, 2022 order found her failure to pay $20,000 in additional GAL feеs warranted a contempt finding and a 60-day jail sentence.
{¶54}
{¶55} This court already answered that question in the juvenile court context, finding GAL fees to constitute court costs. See In re Bailey, 1st Dist. Hamilton No. C-060700, 2007-Ohio-4192, ¶ 17. We explained, “The authority to levy GAL fees against a party in a private custody action is found in
{¶56} In domestic relations proceedings concerning divorce and separation,
{¶57} Just as
{¶58} We therefore sustain Mother‘s seventh assignment of error.
* * *
{¶59} In light of the foregoing analysis, we sustain Mother‘s seventh assignment of error, reversing the trial court‘s judgment in part and remanding this cause with instructions to the trial court to vacate the contempt order. We affirm the trial court‘s judgment in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
WINKLER, J., concurs.
KINSLEY, J., concurs in part and dissents in part.
KINSLEY, J., concurring in part and dissenting in part.
{¶60} I concur with the majority‘s resolution of all assignments of error in this case except for the third assignment of error which challenges the GAL‘s fees. Having carefully reviewed the record in this regard, I would sustain mother‘s third assignment of error in part and therefore dissent from this portion of the majority‘s decision.
{¶61} During the 20-month period from December 2020, when the GAL was first appointed by the court, to August 2022, when the case essentially concluded at the trial court level, the trial court ordered the parties to pay $155,853.53 to the GAL
{¶62} Perhaps given how costly the proceedings below wound up being, Mother represented herself in this appeal. While pro se litigants are held to the same standards as parties who have attorneys, courts also entertain all cognizable arguments that unrepresented litigants present “in the interest of fairness and justice.” Fontain v. Sandhu, 1st Dist. Hamilton No. C-200011, 2021-Ohio-2750, ¶ 13. After reading Mother‘s brief, it is clear to me that she takes issue with the overall amount of the GAL‘s bills and with the process by which the trial court approved each set of bills the GAL submitted. I have therefore reviewed these issues for possible error.
{¶63} To begin, I note that neither Mother nor Father sought the appointment of a GAL in this case. Rather, the trial court appointed the GAL sua sponte when the parties’ efforts to resolve the question of custody of their minor son broke down. Thus, the parties did not seek to incur GAL fees of their own volition, a factor that makes the total amount of the fees all the more shocking.
1. The trial court should not have approved block-billed time entries.
{¶65} The Ohio Supreme Court has established a rigid rule against block-billing—or the practice of combining a number of different legal tasks into a single billable entry. See State ex rel. Harris v. Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.3d 1068, ¶ 6-7. This is so because combining multiple tasks into a single entry complicates the process of determining whether the time spent on a particular activity is reasonable. Id. at ¶ 6. As a result, the Ohio Supreme Court has warned that it will not approve attorney fees applicаtions that contain block-billed entries and will potentially deny all fees on the basis of this mistake. Id. at ¶ 7.
{¶66} Despite this clear guidance, the trial court approved a significant number of block-billed entries on the GAL‘s bills without explanation or justification.
{¶67} At the very least, this error should have become apparent to the trial court in July of 2021, when Mother began challenging the GAL‘s fees and asking the trial court to scrutinize them. At that time, the GAL submitted his invoices from December of 2020 through the end of June 2021 to the court. Those invoices
{¶68} The following chart itemizes the block-billed services exactly as they appeared on the invoices the GAL submitted to the court in July of 2021. They are modified only to conceal the name of parties’ minor child.
{¶69} In many cases, the tasks are not separated by punctuation or any obvious line breaks, making it difficult at times to еven discern when one task stops and another begins. And that is a separate problem with the bills. People who are paying into the six-figures for services are entitled under the rules to know what they are paying for. See
| DATE | SERVICES | TIME |
|---|---|---|
| 12/3/2020 | Review of Pleadings phone call w/Children‘s Services communications to Counsel of record | 1.00 |
| 12/7/2020 | Review of pleadings and multiple Documents phone call with multiple professionals, Counsel and parties Investigation | 4.25 |
| 12/9/2020 | Meet with Carlos Investigation Review Documents e-mails with Therapists Observe Visitation and meet with C. at Children‘s Home | 3.50 |
| 12/11/2020 | Investigation Numerous communications and meetings with Professionals | 4.00 |
| 12/14/2020 | Telephone call with Cindy Chiaro and Nicole Schilds e-mails with C. | 1.25 |
| 12/16/2020 | Home Visit numerous phоne call w/Counsel and Court Review and Revise Entry e-mails with Professionals Revisions and edits to entry. phone call w/ Court | 7.50 |
| 1/5/2021 | Telephone call with numerous professionals and Counsel numerous communications from C. | 2.50 |
| 1/6/2021 | Conference with Judge phone call w/ Schild email to professionals | 1.50 |
| 2/1/2021 | Attendance at Phone Conference with Judge emails with Carlos | 0.75 |
| 2/11/2021 | Meet with Carlos email to Chiachi and Counsel e-mails with Therapists | 1.25 |
| 2/23/2021 | E-mails from/to All professionals and parties phone call with Schild and Counsel and Haley | 1.75 |
| 2/24/2021 | E-mails from/to Parties and Counsel review of recordings | 1.50 |
| 2/25/2021 | E-mails from/to everyone. Multitude and conference with Court | 2.00 |
| 3/1/2021 | E-mails from/to Parties and Counsel phone call with Counsel and numerous texts with parties from 2-28 and this date. Zoom Meeting with Karl and Mom, FaceTime with C. and numerous communications | 3.75 |
| 3/3/2021 | E-mails from/to Chiachi, Dr. Connor‘s Office and Counsel e-mail to settlement discussions with up Assessment with CCPC. Phone call with Schild | 1.50 |
| 3/24/2021 | Phone Call w/ Brenda Patton Numerous e-mails with Counsel | 1.00 |
| Phone Conference with Patton and e-mails to Counsel2 | 1.50 | |
| 3/29/2021 | Drafting of Motion to Modify Temporary Orders Numerous communications from and to Counsel and Patton phone call w/ Chiachi | 2.00 |
| 3/30/2021 | E-mails from/to Karl and Patton Text messages and e-mails from C. and to Chiachi | 1.25 |
| 4/1/2021 | E-mails from/to Counsel and texts with C. phone call w/Tepe | 1.25 |
| 4/7/2021 | Review of Court Order on Motion e-mails to parties, Counsel and communication with C. | 1.40 |
| 4/9/2021 | Communicate (with client) and multiples e-mails to Counsel | 0.75 |
| 4/12/2021 | E-mails from/to C. over the weekend. Phone call w/ Jennifer Szenghi multiple e-mails from Carlos and to Counsel | 1.75 |
| 4/21/2021 | E-mails from/to Mental Health Professionals phone call w/ Therapist | 1.50 |
| 4/23/2021 | Meet with Therapists Investigation Notes to file and e-mails to Connors | 2.50 |
| 4/27/2021 | Telephone call with Dr. Connor e-mail to Professionals Draft Order phone call w/ Counsel | 2.75 |
| 4/28/2021 | E-mails from/to Counsel phone call w/ Counsel e-mails from Carlos | 1.75 |
| 5/3/2021 | Review of Motions filed by Tepe phone call w/Fox revise letter to Boat review Substitution of Counsel e-mails with Fox | 1.25 |
| 5/4/2021 | Appear for/attend Court Hearing phone call from and w/ Tepe review and prepare for hearing Numerous communications wit [sic] Parties and C. after hours dealing with issues | 3.75 |
| 5/5/2021 | Review of File pleadings and Entries e-mail to all professionals. | 3.00 |
| 5/10/2021 | Review/analyze Judge‘s Decision e-mail to Connors and Counsel Conference with Schild | 1.50 |
| 5/12/2021 | Meet with C. and Nicole e-mail to Chia Chi‘s therapists | 1.25 |
| 5/19/2021 | Correspondence to and from Ward, Counsel and Therapists over last 5 days. | 3.50 |
| 5/20/2021 | Telephone call with Dr. Barbara Boat and noes [sic] to file. Phone call w/ C. Multiple lengthy text messages phone call with Chia Chi. | 3.00 |
| 5/24/2021 | Investigation and Schduling [sic] of all Evaluation Appointments | 2.25 |
| 5/31/2021 | Investigation and numerous communications including reviewing filings and e-mails as well as phone call w/ numerous professionls [sic] from 5-27 through 5-31 | 6.50 |
| 6/1/2021 | Attendance at Court Pre-Trial Report e-mails with Schild and Connor‘s Office Meet w/ C. | 1.75 |
| 6/2/2021 | E-mails from/to Counsel andnumerous [sic] communications with C. | 0.50 |
| 6/3/2021 | Attendance at Phone Conference with Court. Numerous e-mails from and to Cousel [sic] Review Documents to be sent to Connors Meet w/ C. | 1.50 |
| 6/7/2021 | Telephone call with Schild Review e-mails phone call to Turpin Counselor | 0.75 |
| 6/8/2021 | Telephone call with Kathy Roberts and Nancy Aniskovich e-mail to professionals and Connor‘s office Draft Motin [sic] for Deposit of Fees. Numerous e-mails re; [sic] Transportation for Evaluation | 2.75 |
| 6/14/2021 | Attendance at Evaluation Session with C. Review Research on Motion to Quash several e-mails with records department of UC | 3.25 |
| 6/15/2021 | Correspondence from and to C. Review research on Protective orders Review Documents from UC | 1.25 |
| 6/16/2021 | E-mails from/to Counsel texts from and to C. | 0.75 |
| 6/21/2021 | Attendance at Evaluation Session with C. conf w/ Pam while parties in Session | 3.75 |
| 6/23/2021 | E-mails from/to Chia Chi and phone call w/ Pam Schwerz e-mail to and frm [sic] Schild and to Counsel | 0.75 |
| 6/25/2021 | Review documents filed by Tepe and text messages with C. | 0.50 |
| 6/30/2021 | Review of Court fle [sic] text to C. re: Dr. Connor appointment | 0.25 |
{¶70} This totals 101.15 hours, representing $37,931.25 of GAL time, all of which the trial court should not have approved because it was block-billed. See Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109, 126 N.E.3d 1068, at ¶ 6-7.
{¶64} Looking at the GAL‘s motion for additional fees filed on October 4, 2021, his September 2021 invoice equally contains block-billed time entries that violate the Ohio Supreme Court‘s directive. There are 17.25 hours of block-billed time in that invoice, representing $6,468.75 in fees that should be discounted.
{¶65} And in the GAL‘s March 2022 motion for additional fees, the attached invoice from March 2022 contains an additionаl 11.8 block-billed hours representing $4,425 in fees that should be cancelled.
{¶66} In total, the trial court therefore approved $48,825 in block-billed time that should have been excluded under the Ohio Supreme Court‘s decision in Rubino.3 I find this to be error and would sustain Mother‘s third assignment of error with respect to these fees.
2. The trial court should not have approved fees for time spent on tasks that fell outside the scope of the GAL‘s defined role.
- Become informed about the facts of the case and contact all relevant persons;
- Observe the child with each parent, foster parent, guardian or physical custodian;
- Interview the child, if age and developmentally аppropriate, where no parent, foster parent, guardian, or physical custodian is present;
- Visit the child at the residence or proposed residence of the child in accordance with any standards established by the court;
- Ascertain the wishes and concerns of the child;
- Interview the parties, foster parents, guardians, physical custodian, and other significant individuals who may have relevant knowledge regarding the issues of the case. The guardian ad litem may require each individual to be interviewed without the presence of others. Upon request of the individual, the attorney for the individual may be present.
- Interview relevant school personnel, medical and mental health providers, child protective services workers, and court personnel and obtain copies of relevant records;
- Review pleadings and other relevant court documents in the case;
Obtain and review relevant criminal, civil, educational, mental health, medical, and administrative reсords pertaining to the child and, if appropriate, the family of the child or other parties in the case; - Request that the court order psychological evaluations, mental health/or substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court;
- Review any necessary information and interview other persons as necessary to make an informed recommendation regarding the best interest of the child.
{¶68} The trial court‘s order appointing the GAL in this case vested him with four specific responsibilities: 1) review records pertaining to the child and his family; 2) interview school personnel, medical and mental health professionals, and relevant court workers and obtain records from these sources; 3) review relevant pleadings in the case; and 4) perform any other necessary investigation to make a recommendation about the child‘s best interests.
{¶69} The GAL‘s work in this case, however, exceeded those mandates in some significant respects. For example, the GAL spent approximately 2.25 hours scheduling appointments for the child, something a parent, not a GAL, typically does.4 The GAL also drove the child to appointments with therapists and waited for him there on two occasions, spending 6.5 hours doing so. While on one of these occasions the GAL interviewed someone at the therapist‘s office, the fact the entry is block-billed complicates the process of understanding exactly how much time he spent in the car
{¶70} These tasks fall outside of the GAL‘s defined role. While the GAL is to be commended for being a supportive adult in the life of a young person during his parents’ divorce, I do not read the law to enable him to charge the pаrents for making appointments and transporting a child. To the contrary, the GAL‘s role is to be an investigatory one, focused on gathering information and making a recommendation to the court. See
3. The trial court did not assess the parties’ ability to pay prior to approving the GAL fees as required by
{¶71} Turning now to the overall amount of the fee award, I note several technical problems with the trial court‘s process. Notably,
{¶72} There is no evidence in this case that the trial court considered the parties’ ability to pay $155,835.53 to the GAL prior to ordering that amount, although there is evidence in thе record that Mother may have struggled to make her assessments. (She paid $100 at one point, and $375 at one point, even though she owed thousands upon thousands of dollars.) While the parties in this case are far from living in poverty, their financial means are not endless. No one‘s are.
{¶74} Mother objected on numerous occasions to the amount of the GAL‘s bills, and she suggested that her finances would be better spent on saving for her son‘s college education and other needs. Mother is gainfully employed (and impressively so as a college professor in a STEM field), but her annual income is less than the overall amount of the GAL‘s bills. Mother was also going through a divorce at the time the GAL‘s bills were landing, and she had expenses related to equalizing assets and debts with Father as a result. These factors suggested that Mother may have struggled to afford the exorbitant fees the GAL was charging.
{¶75}
{¶76} But the trial court made no such inquiry. Instead, it approved every subsequent request for additional GAL fees without inquiring as to the financial burden it was imposing on the parties. Unlike the majority, I would find this to be error.
4. The overall fee award should be consistent with
{¶78} Finally, I consider the overall amount of the fee award in the context of
{¶79} The Hamilton County Domestic Relations Court expects parties to deposit $1,750 when a GAL is appointed in their case. See
{¶80} The GAL‘s fees in this case, however, totaled over 88 times what the Hamilton County Court of Domestic Relations Local Rule establishes as the deposit amount. See
{¶81} On top of that,
{¶82} To the contrary, the idea that it would cost any two persons seeking to amicably terminate their marriage and to parent their son in the best way possible $155,083.83 to divorcе is repugnant. Our courts should be open, accessible, and easy to navigate for parties seeking resolution of their disputes. Charging people well into the six figures under the threat of a court order, making them fear arrest if they cannot or do not pay, is the anthesis of accessibility.
{¶83} In conclusion, I would sustain Mother‘s third assignment of error in part. I would subtract $48,825 of the GAL‘s fees due to block-billing under Rubino. Of the remaining $106,258.83, I would remand the matter to the trial court for a consideration of Mother‘s ability to pay under
Please note:
The court has recorded its entry on the date of the release of this opinion.