Divorce Contempt Actions: Pre and Post Decree

Motion To Show Cause/Contempt

A “Motion to Show Cause” why a party should not be held in contempt of court shall state with specificity each provision of a prior court order with which a party allegedly has failed to comply, the date of such order, and the facts constituting the noncompliance. The motion shall be supported by an Affidavit signed by the party bringing the action. Show cause motions may be filed during pre decree divorce proceedings or post decree. The Ohio Revised Code sets out:

2705.02 Acts in contempt of court.

A person guilty of any of the following acts may be punished as for a contempt:

(A)  Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer…

The moving party (movant) must show failure of compliance with a valid court order. Proof of willful, purposeful or intentional noncompliance with a court order is not prerequisite to a finding of civil contempt. The trier of fact (Judge, Magistrate) will determine a finding of contempt based on clear and convincing evidence producing a firm belief or conviction regarding the facts to be established.

Once a prima facie case of contempt (sufficient evidence exists to support the case) is established by the movant, the contemnor (party held in contempt) has the burden of proving the defense of their inability to comply with the court order.

Defenses

An alleged contemnor makes a showing that they substantially complied with the order. Substantial compliance is grounded in evidence that one has taken all reasonable steps to comply with the court order(s) subject to a show cause motion. When one has exercised reasonable diligence and effort to comply with the order, “all reasonable steps”, a finding of substantial compliance may result.

An alleged contemnor has a viable defense when punishing noncompliance with the order would constitute punishing a nullity (holding a person in contempt for noncompliance with something null and void, with no force or effect).

Example: A decree of divorce often orders a party to convey a property by quitclaim deed, but, also provides that if the party fails to convey the rights to the property, the order of the court shall constitute and operate as such conveyance. A finding of contempt based on the requirement of a party signing and conveying a quitclaim deed would be punishing a nullity. In such a case, the quitclaim deed and the decree of divorce both have the same functions under Ohio law.

Presumptively, one should not conclude they are released by the decree conveyance language from their obligation to provide the signed quitclaim deed as ordered, but, if circumstances make timely compliance problematic (overseas transfer, deployment), alleged noncompliance may be regarded as a nullity, as the decree constitutes and operates as the instrument of conveyance.

When a person alleges contempt in a show cause motion and the person defending against the action can show the motion to be grounded in an improper purpose, such as, obviously serving merely to harass or maliciously injure the other party, the injured party can seek damages and sanctions. At times, it may appear a Show Cause motion is brought by a movant with unclean hands and in bad faith. Great caution and diligence must be exercised before pursing this option. See:

http://ohiodivorceguide.blogspot.com/2011/12/frivolous-conduct.html

The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

Spousal Support Modification Issues: Court Reservation of Jurisdiction

Before a separation agreement or final decree of divorce is submitted to the court for adoption, language such as, “The Court shall maintain jurisdiction over the amount and duration of spousal support,” MUST be considered should future relief be a possible issue.

The Ohio Revised Code spells it out:

3105.18 Awarding spousal support - modification of spousal support. (Content edited for readability.)

(E)

(1) The decree of divorce or a separation agreement of the parties to the divorce that is incorporated into the decree, contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(2)  In the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support.

(F)

(1) For purposes of division (E) of this section and subject to division (F)(2) of this section, a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as BOTH of the following apply:

(a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate.

(b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was foreseeable.

(2) In determining whether to modify an existing order for spousal support, the court shall consider any purpose expressed in the initial order or award and enforce any voluntary agreement of the parties. Absent an agreement of the parties, the court shall not modify the continuing jurisdiction of the court as contained in the original decree.

“A court's reservation of jurisdiction is a FORM OF RELIEF awarded in a final judgment. Ohio Revised Code 3105.18(E)(2) authorizes the court to exercise the jurisdiction IT RESERVED by modifying a spousal support award. However, that section does not likewise authorize the court to modify its prior order by vacating its reservation of jurisdiction. Courts may not modify or vacate their prior final orders except pursuant to Civ. R. 60(B) or an express legislative mandate. The reservation of jurisdiction authorized by R.C. 3105.18(E)(2) is therefore not, by its own terms, subject to subsequent modification by the court.” [Edited excerpt taken from Apt v. Apt, 192 Ohio App. 3d 102; 2011 Ohio 380; 947 N.E.2d 1317; 2011 Ohio App. LEXIS 326, HN6.]

When a court expressly does not maintain jurisdiction over the amount and duration of spousal support, the party seeking relief from the court for any reason justifying a modification of the court ordered spousal support (such as an involuntary decrease in the party's wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances) may file, as stated above, a motion pursuant to Civ. R. 60(B). The factors underlying Civ. R. 60(B) motions are set out below.

RULE 60. Relief From Judgment or Order

(B) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc.

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

Often relief from an order regarding the amount or duration of spousal support is premised on Civ.R. 60(B)(5). This rule provides that the trial court may relieve a party from a final judgment for any "reason justifying relief from that judgment." The rule is intended as a catch-all provision reflecting the inherent power of the trial court to relieve a person from the unjust operation of a judgment.

Before filing a motion pursuant to Civ.R. 60(B), the party seeking a modification of the court’s prior spousal support order must carefully consider Ohio Revised Code 3105.18 (E)(F) as set out above.

 

Should You Appeal The Court's Decision?

 

Trial Court's Discretion:

The trial court is accorded broad discretion in determining whether to modify an existing spousal support award. Hines v. Hines, 3d Dist. No. 9-10-15, 2010-Ohio-4807, ¶ 17; Mottice v. Mottice (1997), 118 Ohio App.3d 731, 735, 693 N.E.2d 1179.

A trial court's decision regarding modification of a spousal support award will not be disturbed on appeal absent a finding that the court abused its discretion.

See Bostick v. Bostick, 3d Dist. No. 1-02-83, 2003-Ohio-5121, ¶ 8, citing Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028.

An abuse of discretion amounts to the trial court being found to have made an unconscionable, unreasonable, or arbitrary judgment. You may feel the trial court made an error in its judgment, but, before pursuing a costly appeal, consider what an appellate court must find to hold the trial court's judgment constituted an abuse of discretion.

The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

Using Experts For Determination of Spousal Support And Property Division

Vocational Experts: Determination of Voluntary Underemployment

At times it is prudent for a vocational expert to evaluate your spouse’s earnings capacity in the current job market. If your spouse has educational and/or professional background applicable to particular employment opportunities, a vocational expert can evaluate your spouse’s current earnings ability related to available jobs advertised in the local market. When a spouse has voluntarily left the job market, chosen to not work or voluntarily left one job for a lower paying job, the court will often be unable to impute (assign, give offsetting credit for, etc.) the spouse’s earnings capacity in the current job market, beyond minimum wage. When your spouse has work related education, training and/or employment experience you want to be able to present evidence that enables the court to appropriately impute your spouse’s earnings ability in the current local market.

Courts listen to vocational experts. If their testimony is credible, the underemployed spouse’s imputed income may be substantially greater than minimum wage and your  current income will be offset by your spouse’s imputed earnings ability. An engineer who has voluntarily left the engineering field to follow the dream of being a massage therapist or a nail tech, may for example, be evaluated for current earnings capacity and placement ability in the current engineering job market versus the massage therapy or nail tech market, without the requirement of any retraining. In some cases, a spouse’s imputed income can be double or triple their current actual earnings. Without the testimony of the vocational expert the judge may only be left to speculate. Speculation can lead to imputation of earnings at minimum wage.

          The expert report will detail vocational assessment of earnings capacity in light of available jobs in the current market. The general procedures for conducting a vocational assessment consist of:

A review of background information; a vocational interview; testing if appropriate; an analysis of work history; an analysis of transferable skills from the work history;  educational background; psychological and/or medical issues; and, current labor market information.

Sample vocational expert credentials: 

Ph.D. Vocational Rehabilitation.

M.Ed. Rehabilitation Counseling.

Certified Rehabilitation Counselor

Sample Memberships and Designations:

Diplomate - American Board of Vocational Experts (ABVE) 

Fellow - American Board of Disability Analysts (ABDA)

International Association of Rehabilitation Providers (IARP)

National Rehabilitation Association (NRA)

Vocational Evaluation and Work Adjustment Association

National Association of Service Providers in Private Rehabilitation

Southwest Ohio Self-Insured Association

Ohio Rehabilitation Association 

Southwest Ohio Rehabilitation Association
 

Sometimes it is prudent to move the court for an order that a spouse cooperate with the vocational expert (or business valuation expert described below).

Business Valuation Experts

A business started during a marriage is technically marital property. When such a business is clearly the enterprise of one spouse, and the business is laden with debt, the majority of the debt may be allocated to the spouse who is directly involved with the business. When the business has substantial equity, the court must determine a reasonable allocation of the equity between spouses.

It may be prudent to employ an expert to value the equity of the business. Such experts are expensive, but, proceeding with an unrealistic idea of what you think your share of your spouse’s business’s equity might be can be even more costly. The court needs credible testimony presented from someone qualified to value the equity of the business. Speculation does not serve that purpose. Introduction of quick books records, product inventory records, accounts receivable records, pay pal records, office equipment inventory records, business real estate records, payroll records, etc., may not be weighed as credibly as a business valuation expert’s testimony.

Some businesses produce substantial income for a spouse but have no equity. A dentist, for example, may earn a six-figure income from the practice, but, the equipment, building and supplies may be so heavily financed that the practice itself has no equity. Income generated from a business may not be realized in the equity of a business.

Business valuation experts can report on such matters as:

Fair market value: the price a willing buyer pays a willing seller;

 

Liquidation value: the net amount an owner could realize if the business is terminated and the individual assets are sold off.

Even the good will of certain businesses may hold some equitable value.

Sample related certifications: National Association of Certified Valuation Analysts; (NACVA); and the American Institute of Certified Public Accountants (AICPA).

Lay Witnesses: Marital Home

            Appraisers v. Realtors

            Equity or “negative equity” (more indebtedness than value of home) requires a showing of what the home may sell for in the current market. Courts may weigh the testimony of a licensed real estate agent as favorably as an appraisal, as long as the marital home’s market value is properly detailed. A realtor’s testimony regarding what comparable homes have sold for, supported by proper documentation (multiple sales listings, auditor’s records available at websites, etc.) may suffice.

Matters to consider regarding disposition of marital home:

When the marital home is shown to have equity in the current market, the equity will be allocated by the court between spouses. One spouse may pay the other spouse the amount of equity allocated to her/him. The compensated spouse will be ordered to quit claim deed whatever interest the spouse has in the marital home. The spouse keeping the marital home will be ordered to remove the other spouse from any debt obligations (mortgages, lines of credit) within a period of time agreed upon by the parties or set by the court, in exchange for the quit claim deed. The home may also be sold and the equity or debt may be divided between the spouses according to court allocations or by agreement between the parties.

Do not forget to inquire about credit for "Reduction of Principal". During divorce proceedings, when only one spouse has made monthly mortgage payments from the date the parties separated, that spouse may receive credit ("offset") for the amount of reduction of the principal balance during that time. Each month your equity is increased by the amount your principal balance is reduced.

            When the marital home is shown to have no equity in the current market, or negative equity (more loan balances than market value), one spouse may elect to keep the marital home. The other spouse would quit claim deed any interest in the home and be removed from the home’s debt obligations by the spouse electing to keep the home. Provided appropriate language is included, a certified copy of a final Decree of Divorce, Dissolution or Legal Separation may act as a transfer of such property. 

Sample Transfer Language:

If Wife fails to convey all right, title and interest to this real estate according to the order of this Court, this order shall constitute and operate as such conveyance and the Auditor and Recorder of Warren County, Ohio are hereby respectively authorized and directed to transfer and record same, for a public record of such conveyance. The property is legally described as follows:

SITUATED IN THIS STATE OF OHIO, THE COUNTY OF WARREN, AND IN THE CITY OF MASON.

SUBJECT TO EASEMENTS AND RESTRICTIONS OF RECORD.

BEING ALL OF LOT 10 AS THE SAME IS KNOWN AND DESIGNATED ON THE RECORDED PLAT OF HOLLINGDALE FARMS, SECTION 3, AS RECORDED IN PLAT BOOK 5 PAGE 42 OF THE WARREN COUNTY, OHIO PLAT RECORDS.

PARCEL NUMBER: 16-22-141-002.

This Agreement may serve as a complete conveyance of any claim of dower Wife may have had regarding the aforementioned real estate.

Expert Witnesses:  Disclosure Requirements

ORC § 2317.38. Notice of intention to offer report

The report or finding mentioned in section 2317.36 (expert report) of the Ohio Revised Code is not admissible unless the party offering it has given notice to the adverse party a reasonable time before trial of his intention to offer it, together with a copy of the report or finding, or so much thereof as relates to the controversy, and has afforded him a reasonable opportunity to inspect and copy any records or other documents in the offering party's possession or control, on which the report or finding was based, and also the names of all persons furnishing facts upon which the report or finding was based.

Sample Domestic Relations Court Local Disclosure Requirements (Warren County Domestic Relations Local Rules):

3.6 Expert Witnesses

A party may not call an expert witness to testify unless a written report has been procured from the expert and forwarded to opposing counsel. It is counsel's responsibility to take reasonable measures, including the procurement of supplemental reports, to insure that each report adequately sets forth the expert's opinion. Unless good cause is shown, all reports must be supplied to opposing counsel no later than thirty days (30) days prior to trial. The report of an expert must reflect his or her opinions as to each issue on which the expert will testify. An expert will not be permitted to testify or provide opinions on issues not raised in his or her report.

Absent extraordinary circumstances, all experts must submit reports. If a party is unable to obtain a written report from an expert, counsel for the party must demonstrate that a good faith effort was made to obtain the report and must advise the court and opposing counsel of the name and address of the expert, the subject of the expert's expertise, together with his or her qualifications, and a detailed summary of his or her testimony. The court shall have the power to nonetheless exclude the testimony of the expert if good cause is not determined for the absence of a report.

 

 

 

 

Divorce Restraining Orders

Mutual and Temporary Restraining Orders

In contested divorces, court restraining orders are sometimes needed to protect spouses from each other’s actions. Such orders are Ex Parte in nature (sought by one of the spouses and granted without notice or an initial hearing allowing the other spouse to be heard). A spouse who believes that a restraining order is inappropriate or incorrect may file a motion for relief from the order and request a hearing with the court. 

The most common restraining order issued in a contested divorce is a mutual restraining order. Below is an example of such an order excerpted from the Warren County, Ohio Domestic Relations Court Local Rules and Forms (See Warren County DR Form 7):

Mutual Restraining Order

IT IS ORDERED PURSUANT TO LOCAL RULE, EFFECTIVE ON THE DATE A COMPLAINT IS FILED, THAT EACH SPOUSE IS ENJOINED FROM COMMITTING ANY OF THE FOLLOWING ACTS:

1.Threatening, abusing, stalking, annoying, or interfering with the other party or the parties’child(ren);

2. Incurring credit in the name of the other party or in the parties’ joint names, except for necessary food, housing, utilities, medical care and necessary transportation, or allowing a lien or loan to be placed against their real or personal property;

3. Selling, disposing of, or dissipating any of their real or personal property, including money (other than regular income), of either party, or removing household goods and furniture from the marital residence;

4. Changing or failing to renew the present health, life, home, automobile, or other insurance coverage; removing the other party as a beneficiary on any life insurance or retirement benefits without further order of this Court;

5. Removing the minor children of the parties from Ohio except for holidays or vacations (not to exceed ten days);

6. Claiming the children as dependents on any income tax return without prior Court order.

Nothing in the above restraining order prevents a spouse from using her or his property to pay necessary and reasonable attorney fees, litigation and court costs.

When your spouse violates the above order you can have your attorney initiate proceedings to have your spouse held in contempt of court. The court can impose a variety of sanctions against a spouse who is held in contempt of court.

Temporary Restraining Order (TRO)

When a spouse submits a motion supported by a sworn affidavit stating to a court that the other spouse is about to dispose of or encumber “marital property” (property subject to equitable division by the court), the court may grant a temporary restraining order (TRO) to prevent that action. As stated above, temporary restraining orders are Ex Parte in nature and are issued without notice or an initial hearing allowing the other spouse to be heard. Also, as stated above, a spouse who believes that a restraining order is inappropriate or incorrect may file a motion for relief from the order. The order will remain in effect until a hearing on a spouse’s motion for relief is held and the court modifies or vacates the order.  

Temporary restraining orders can freeze bank accounts, brokerage accounts or any type of asset subject to a court’s jurisdiction. As stated above, when your spouse violates the above order you can have your attorney initiate proceedings to have your spouse held in contempt of court. The court can impose a variety of sanctions against a spouse who is held in contempt of court.

TROs can render a spouse unable to access accounts normally used for necessary living expenses and motions for modification and/or relief from such orders are frequently filed.

TROs can be issued for both pre and post decree matters.

See also:

http://ohiodivorceguide.blogspot.com/2010/12/domestic-violence-and-divorce.html

The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

Divorce Depositions

The following provides a preview and offers suggestions to persons preparing to testify in a discovery deposition:

Your answers will be under oath and recorded by a court reporter word-for-word.

Your answers may be used to impeach you at trial. Attorneys are looking for you to make inconsistent, incorrect or damaging statements. They want to size you up as a witness and test your credibility.

The attorneys will probe you for inconsistencies, credibility issues and areas of vulnerability (carelessness, ability to be baited or lead, etc.).

Listen carefully to each question. Take a moment to reflect. Ask if you do not understand. Anything you say will be on the record.

Do not say "uh uh" or nod. Answer verbally.

LIMIT YOUR ANSWERS TO THE QUESTIONS ASKED. Never volunteer information beyond the scope of the question, giving leads to follow-up questions.

Your answers should always be consistent with your prior disclosures and should flow naturally, not sounding mechanical or rehearsed.

Once you answer, WAIT. Do not let silence or attorney facial expressions unsettle you.

You may review or restate questions to ensure clarity. Do not answer until you understand a question and the terms used by the attorneys. You may ask that questions be repeated, restated,

or unclear meanings of words be explained.

DO NOT GUESS OR SPECULATE. Do not say "probably", “I guess so”, or “maybe”. Be CERTAIN of your answer or say you don't know or don't recall, or ask for clarification of the question.

You may refer to your supporting documentation, records, etc., for the purpose of refreshing your recollection. You must assert your right to do so. You are permitted to refresh your recollection from relevant materials at any time.

When you are questioned about documents, you can ask the attorneys to identify what documents they are referring to and request a copy of the documents (or any exhibit) to refresh your memory before you answer.

Do not let lawyers put words in your mouth. They will use leading questions to do just that. Do not be mistakenly lead into agreeing with the answer their question suggests.

Do not try to persuade or convince. The judge or magistrate will not be at the deposition. Inconsistent answers, argumentativeness, or overt attempts to be persuasive may be useful to the attorneys in impeaching you at trial.

If the attorneys accuse you of being inconsistent or untruthful at trial, your prior consistent statements made during your deposition may be introduced, otherwise you are barred from using prior self-serving statements.

DO NOT LET FATIGUE CONTAMINATE YOUR ANSWERS. Pay attention. If you feel fatigued, ask to take a break for a couple of minutes. Fatigue causes mistakes that are taken down word-for-word.

Do not be baited or drawn into arguing with attorneys. Remain calm. When questions are repetitive or inappropriate, your attorney can object.

Objections are important. Always listen to your attorney’s objections.  Do not continue your answer when your attorney objects. When your attorney objects, pause to allow your attorney to clearly state the objection and the reason for the objection for the record.

Listen to the content of your attorney’s objection before you answer. You may learn from the objection. After the objection is entered on the record, you will usually be instructed to answer the question.

STAY CALM. If the attorneys get sarcastic or testy, let them look bad.

Re-read the above list of suggestions. Remain calm, be prepared, refresh your recollection when necessary, ask for document identification when necessary ("What are you looking at?", “May I have a copy?”), do not expand your answer beyond the scope of the question, do not respond to silence, do not get testy, take breaks when fatigued, etc.

The above information is not intended to be legal advice and presumes you are not represented by an attorney.

Divorce and Division of Social Security Benefits

Social Security benefits are not divisible in divorce. If you were in a marriage that lasted ten or more years, you may want to consider whether you can benefit from receiving Social Security spousal benefits. You may apply to the Social Security Administration for spousal benefits when you turn 62. You are responsible for applying for the benefit, as no action will automatically be taken on your behalf.

Benefits taken before full retirement age are reduced. The spousal benefit will be roughly 50% of the higher wage earner’s benefit.  If your own actual earned benefit is greater than the benefit of your former spouse, only that will be paid. 

Spousal benefits are available regardless whether the other spouse is receiving Social Security payments. Receiving a Social Security spousal benefit does not decrease any other pension that you may be receive. Social Security spousal benefits will be reduced by any applicable earnings limit for current employment. 

You can learn more about Social Security spousal benefits by contacting the Social Security Administration:

http://www.ssa.gov/pgm/reach.htm

This post does not constitute legal advice. Social Security guidelines change and the accuracy of this post or how you should plan your own retirement strategy should be discussed with your attorney, financial planner or Social Security Administration counselor.

Frivolous Conduct

            Contested divorces, on rare occasions, can involve assertions of claims, the filing of pleadings, motions or a variety of other papers, appearing to merely serve to harass or injure the other party. When such activity can be shown to be grounded in an improper purpose, such as causing a needless delay, or needlessly driving up the cost of the litigation, the injured party can seek damages and sanctions.

            Ohio has a statute setting out what constitutes “Frivolous Conduct In Filing Civil Claims”. Attorneys rarely invoke the statute, and with good reason. Normally, there are other remedies available from more traditional civil filings (motion to compel, motion to strike, etc.).  A motion for damages and sanctions due to the frivolous conduct of a party may only be appropriate in a very narrow group of scenarios and may, ultimately, cost more in fees and emotional tolls than warranted by the offending activity.

            The statute is presented below, in its entirety (with some underlining added). Domestic relations judges, magistrates and attorneys rarely, if ever, litigate frivolous conduct motions. Reliance on the statute should involve the exercise of a cautious balancing of costs and benefits associated with this litigation. When a party asserts frivolous conduct of the other party, the grounds for the assertion must be sufficiently detailed and have evidentiary support.            

2323.51 Frivolous conduct in filing civil claims.

(A) As used in this section:

(1) “Conduct” means any of the following:

(a) 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;

(b) The filing by an inmate of a civil action or appeal against a government entity or employee, the assertion of a claim, defense or other position in connection with a civil action of that nature or the assertion of issues of law in an appeal of that nature, or the taking of any other action in connection with a civil action or appeal of that nature.

(2) “Frivolous conduct” means either of the following:

(a) Conduct of an inmate or other party to a civil action, of an inmate who has filed an appeal of the type described in division (A)(1)(b) of this section, or of the inmate’s or other party’s counsel of record that satisfies any of the following:

(i) It 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.

(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.

 (iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.

(b) An inmate’s commencement of a civil action or appeal against a government entity or employee when any of the following applies:

(i) The claim that is the basis of the civil action fails to state a claim or the issues of law that are the basis of the appeal fail to state any issues of law.

(ii) It is clear that the inmate cannot prove material facts in support of the claim that is the basis of the civil action or in support of the issues of law that are the basis of the appeal.

(iii) The claim that is the basis of the civil action is substantially similar to a claim in a previous civil action commenced by the inmate or the issues of law that are the basis of the appeal are substantially similar to issues of law raised in a previous appeal commenced by the inmate, in that the claim that is the basis of the current civil action or the issues of law that are the basis of the current appeal involve the same parties or arise from the same operative facts as the claim or issues of law in the previous civil action or appeal.

(3) “Civil action or appeal against a government entity or employee,” “inmate,” “political subdivision,” and “employee” have the same meanings as in section 2969.21 of the Revised Code.

(4) “Reasonable attorney’s fees” or “attorney’s fees,” when used in relation to a civil action or appeal against a government entity or employee, includes both of the following, as applicable:

(a) The approximate amount of the compensation, and the fringe benefits, if any, of the attorney general, an assistant attorney general, or special counsel appointed by the attorney general that has been or will be paid by the state in connection with the legal services that were rendered by the attorney general, assistant attorney general, or special counsel in the civil action or appeal against the government entity or employee, including, but not limited to, a civil action or appeal commenced pro se by an inmate, and that were necessitated by frivolous conduct of an inmate represented by counsel of record, the counsel of record of an inmate, or a pro se inmate.

(b) The approximate amount of the compensation, and the fringe benefits, if any, of a prosecuting attorney or other chief legal officer of a political subdivision, or an assistant to a chief legal officer of those natures, who has been or will be paid by a political subdivision in connection with the legal services that were rendered by the chief legal officer or assistant in the civil action or appeal against the government entity or employee, including, but not limited to, a civil action or appeal commenced pro se by an inmate, and that were necessitated by frivolous conduct of an inmate represented by counsel of record, the counsel of record of an inmate, or a pro se inmate.

(5) “State” has the same meaning as in section 2743.01 of the Revised Code.

(6) “State correctional institution” has the same meaning as in section 2967.01 of the Revised Code.

(B)(1) Subject to divisions (B)(2) and (3), (C), and (D) of this section and except as otherwise provided in division (E)(2)(b) of section 101.15 or division (I)(2)(b) of section 121.22 of the Revised Code, at any time not more than thirty days after the entry of final judgment in a civil action or appeal, 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 . The court may assess and make an award to any party to the civil action or appeal who was adversely affected by frivolous conduct, as provided in division (B)(4) of this section.

(2) An award may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action or an appeal of the type described in that division or on the court’s own initiative, but only after the court does all of the following:

(a) Sets a date for a hearing to be conducted in accordance with division (B)(2)(c) of this section, to determine whether particular conduct was frivolous, to determine, if the conduct was frivolous, whether any party was adversely affected by it, and to determine, if an award is to be made, the amount of that award;

(b) Gives notice of the date of the hearing described in division (B)(2)(a) of this section to each party or counsel of record who allegedly engaged in frivolous conduct and to each party who allegedly was adversely affected by frivolous conduct;

(c) Conducts the hearing described in division (B)(2)(a) of this section in accordance with this division, allows the parties and counsel of record involved to present any relevant evidence at the hearing, including evidence of the type described in division (B)(5) of this section, determines that the conduct involved was frivolous and that a party was adversely affected by it, and then determines the amount of the award to be made. If any party or counsel of record who allegedly engaged in or allegedly was adversely affected by frivolous conduct is confined in a state correctional institution or in a county, multicounty, municipal, municipal-county, or multicounty-municipal jail or workhouse, the court, if practicable, may hold the hearing by telephone or, in the alternative, at the institution, jail, or workhouse in which the party or counsel is confined.

(3) The amount of an award made pursuant to division (B)(1) of this section that represents reasonable attorney’s fees shall not exceed, and may be equal to or less than, whichever of the following is applicable:

(a) If the party is being represented on a contingent fee basis, an amount that corresponds to reasonable fees that would have been charged for legal services had the party been represented on an hourly fee basis or another basis other than a contingent fee basis;

(b) In all situations other than that described in division (B)(3)(a) of this section, the attorney’s fees that were reasonably incurred by a party.

(4) An award made pursuant to division (B)(1) of this section may be made against a party, the party’s counsel of record, or both.

(5)(a) In connection with the hearing described in division (B)(2)(a) of this section, each party who may be awarded reasonable attorney’s fees and the party’s counsel of record may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of the reasonable attorney’s fees, an itemized list or other evidence of the legal services rendered, the time expended in rendering the services, and whichever of the following is applicable:

(i) If the party is being represented by that counsel on a contingent fee basis, the reasonable attorney’s fees that would have been associated with those services had the party been represented by that counsel on an hourly fee basis or another basis other than a contingent fee basis;

(ii) In all situations other than those described in division (B)(5)(a)(i) of this section, the attorney’s fees associated with those services.

(b) In connection with the hearing described in division (B)(2)(a) of this section, each party who may be awarded court costs and other reasonable expenses incurred in connection with the civil action or appeal may submit to the court or be ordered by the court to submit to it, for consideration in determining the amount of the costs and expenses, an itemized list or other evidence of the costs and expenses that were incurred in connection with that action or appeal and that were necessitated by the frivolous conduct, including, but not limited to, expert witness fees and expenses associated with discovery.

(C) An award of reasonable attorney’s fees under this section does not affect or determine the amount of or the manner of computation of attorney’s fees as between an attorney and the attorney’s client.

(D) This section does not affect or limit the application of any provision of the Rules of Civil Procedure, the Rules of Appellate Procedure, or another court rule or section of the Revised Code to the extent that the provision prohibits an award of court costs, attorney’s fees, or other expenses incurred in connection with a particular civil action or appeal or authorizes an award of court costs, attorney’s fees, or other expenses incurred in connection with a particular civil action or appeal in a specified manner, generally, or subject to limitations.

Effective Date: 07-06-2001; 04-07-2005

This post is not offered as legal advice and presumes you are not represented by an attorney.