[Cite as Flint v. Flint,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

CONSTANCE M. FLINT C.A. No. 15CA010895

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE JOSEPH D. FLINT COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 14DR078121

DECISION AND JOURNAL ENTRY

Dated: August 8, 2016

HENSAL, Judge.

{¶1} Constance Flint appeals a journal entry of the Lorain County Court of Common

Pleas, Domestic Relations Division, that ordered her to pay $1,781.25 in attorney fees. For the

following reasons, this Court reverses.

I.

{¶2} In March 2014, Ms. Flint filed a petition for divorce against her husband Joseph

Flint. In her complaint, Wife included a claim against Husband’s girlfriend, alleging that the

girlfriend had harassed and tormented her in person and over the telephone.

{¶3} Husband’s girlfriend moved to dismiss any claims against her, alleging that she

could not be joined as a defendant in a divorce action. She also moved for attorney fees under

Revised Code Section 2323.51 and Civil Rule 11, arguing that the allegations against her were

frivolous. Wife opposed the motions, arguing that the girlfriend could be joined as a party under

Civil Rule 20. She also argued that, because joinder was proper, her action was not frivolous. 2

{¶4} Wife subsequently amended her complaint to include a request that Husband’s

girlfriend be temporarily and permanently enjoined from harassing or demeaning her. The

girlfriend subsequently filed a reply to her motion to dismiss, arguing that Wife’s argument that

she can be joined under Rule 20 was “spurious” and “ridiculous.” The trial court granted the

motion to dismiss. After the divorce was resolved, the court granted the girlfriend’s motion for

attorney’s fees. Examining the girlfriend’s argument that Wife’s “seeking joinder * * *

constituted a frivolous filing pursuant to R.C. 2323.51[,]” it concluded that Wife’s claim against

the girlfriend was a “frivolous filing for which no legal authority existed to attempt to join

[Husband’s girlfriend] * * *.” Wife has appealed, assigning two errors.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT FOUND THAT JOINING [HUSBAND’S GIRLFRIEND] IN A DIVORCE ACTION TO OBTAIN A RESTRAINING ORDER AGAINST HER WAS FRIVOLOUS CONDUCT.

{¶5} Wife argues that the trial court incorrectly concluded that Civil Rule 75 prohibited

her from joining Husband’s girlfriend as a party in a divorce proceeding. She argues that Rule

75 allows parties to be joined under Civil Rule 20. She also argues that, because her argument is

at least “ostensibly valid[,]” it cannot be said that her allegations against the girlfriend were

frivolous under Section 2323.51.

{¶6} Section 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.” In her motion,

Husband’s girlfriend argued that Wife’s complaint qualified as frivolous conduct under Sections

2323.51(A)(2)(a)(i) and (ii). Those subsections provide that conduct is frivolous if it “obviously 3

serves merely to harass or maliciously injure another party to the civil action * * * or is for

another improper purpose” or “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.” R.C. 2323.51(A)(2)(a)(i),

(ii).

{¶7} “[A]nalysis of a claim under [R.C. 2323.51(A)(2)] boils down to a determination

of (1) whether an action taken by the party to be sanctioned constitutes ‘frivolous conduct,’ and

(2) what amount, if any, of reasonable attorney fees necessitated by the frivolous conduct is to be

awarded to the aggrieved party.” P.N. Gilcrest Ltd. Partnership v. Doylestown Family Practice,

Inc., 9th Dist. Wayne No. 10CA0035,

, quoting Ceol v. Zion Industries,

Inc.,

(9th Dist. 1992). This Court’s standard of review on an appeal of

an award of sanctions depends on the part of the analysis at issue. The trial court’s factual

findings will not be overturned if they are supported by competent, credible evidence. S & S

Computer Sys., Inc. v. Peng, 9th Dist. Summit No. 20889,

, ¶ 9. We review

questions of law, such as whether a claim is warranted under existing law, de novo. Jefferson v.

Creveling, 9th Dist. Summit No. 24206,

. Finally, we review the trial

court’s decision whether to impose sanctions for improper conduct under an abuse of discretion

standard. Gilcrest at ¶ 29.

{¶8} Regarding Wife’s argument that a third-party can be joined in a divorce

proceeding under Civil Rule 20, Civil Rule 75(A) provides that, in general, the rules of civil

procedure “shall apply in actions for divorce * * *.” Rule 75(B) specifies, however, that Rules

“14, 19, 19.1, and 24 shall not apply in a divorce[.]” Wife is correct that there is no language in

Civil Rule 75 that explicitly provides that Rule 20 does not apply to divorce actions. 4

{¶9} Civil Rule 20 provides in pertinent part that “[a]ll persons may be joined in one

action as defendants if there is asserted against them * * * any right to relief in respect of or

arising out of the same transaction, occurrence, or succession or series of transactions or

occurrences and if any question of law or fact common to all defendants will arise in the action.”

In her amended complaint, Wife alleged that Husband and his girlfriend “harass and torment

[Wife] telephonically and in person * * *.” She then listed several examples of the harassment

she had allegedly endured by one or both of them.

{¶10} It is not necessary for us to resolve whether a third-party can, in fact, be joined to

a divorce action under Civil Rule 20. Upon review of the record, we conclude that, because

Wife alleged that some of the harassment she endured was done jointly by Husband and his

girlfriend, Wife presented, at the very least, a good faith argument that she should be permitted

to join Husband’s girlfriend pursuant to Rule 20. Accordingly, the trial court incorrectly ordered

Wife to pay the girlfriend’s attorney fees. Wife’s first assignment of error is sustained.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT IMPOSED SANCTIONS FOR FRIVOLOUS CONDUCT PURSUANT TO OHIO REV. CODE § 2323.51 WITHOUT HOLDING A HEARING.

{¶11} Wife’s second assignment of error is that the trial court should have held a

hearing before ruling on the motion for attorney fees. In light of our resolution of Wife’s first

assignment of error, we conclude that Wife’s argument is moot, and it is overruled on that basis.

App.R. 12(A)(1)(c). 5

III.

{¶12} The trial court incorrectly granted the motion for attorney fees. The judgment of

the Lorain County Court of Common Pleas, Domestic Relations Division is reversed, and this

matter is remanded for proceedings consistent with this decision.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT

CARR, P. J. SCHAFER, J. CONCUR. 6

APPEARANCES:

JONATHAN E. ROSENBAUM, Attorney at Law, for Appellant.

LESLIE GENTILE, Attorney at Law, for Appellee.