Clemens v. Clemens , 2021 Ohio 3094 ( 2021 )

[Cite as Clemens v. Clemens, 2021-Ohio-3094.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
ADAM B. CLEMENS : Hon. Craig R. Baldwin, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 21 AP 0001
CHRISTINA CLEMENS :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Morgan County Court
of Common Pleas, Domestic Relations
Division, Case No. 19DR0133
JUDGMENT: Affirmed in part; Reversed and Remanded
In part
DATE OF JUDGMENT ENTRY: September 7, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
KELLY COADY MILES D. FRIES
10 W. Broad St., Ste. 1550 320 Main Street
Columbus, OH 43215 P.O. Box 190
Zanesville, OH 43702-0190
Morgan County, Case No. 21 AP 0001 2
Gwin, J.,
{¶1} Appellant appeals the December 30, 2020 judgment entry of the Morgan
County Court of Common Pleas, Domestic Relations Division.
Facts & Procedural History
{¶2} Appellant Adam B. Clemens (“Husband”) and appellee Christina Clemens
(“Wife”) were married on December 13, 2014.
{¶3} On July 24, 2019, Husband filed a complaint for divorce against Wife. Wife
filed a counterclaim for divorce on August 15, 2019. In September of 2019, the trial court
appointed Sonya Marshall as Guardian Ad Litem (“GAL”) for the parties’ minor children,
G.C. and C.C. In its temporary orders, the trial court designated Wife as the temporary
residential parent and legal custodian of both minor children.
{¶4} The GAL filed a detailed report on April 30, 2020. The GAL noted that
Husband screened positive for marijuana on March 4, 2020, and Wife tested negative on
March 3, 2020. The GAL found a shared parenting plan was not in the best interest of
the children due to the lack of communication between Husband and Wife, the lack of
ability to compromise between the parties, and other actions by the parties during the
pendency of the proceedings. While Husband suggested to the GAL that Wife is actively
alienating the children from him, the GAL found no evidence to support those allegations.
The GAL made the following recommendations as to the best interest of the children:
Wife should be designated the residential parent and legal guardian of the children and
Husband should have parenting time.
{¶5} Wife filed a motion for contempt against Husband on March 16, 2020,
arguing Husband violated the terms of the court’s order by exercising parenting time
Morgan County, Case No. 21 AP 0001 3
beyond that allowed by the court. Wife filed another motion for contempt against Husband
on May 20, 2020, alleging Husband withdrew half of the balance in the parties’ joint
savings account and alleging he was consuming alcohol while exercising parenting time.
{¶6} Husband filed a motion for contempt against Wife on September 30, 2020,
arguing the following: Wife failed to allow holiday parenting time for Veteran’s Day in
2019; Wife disposed of a dog in violation of the court’s temporary orders; Wife disposed
of a tractor in violation of the court’s temporary orders; Wife failed to allow reasonable
telephone contact between Husband and the children; Wife failed to allow parenting time
on Martin Luther King, Jr. weekend in 2019; Wife failed to provide Husband with the
telephone numbers of the children’s babysitters; and Wife made negative statements
about Husband in front of the children.
{¶7} The trial court conducted a trial on October 15th and October 16th of 2020.
{¶8} Blake Kimes (“Kimes”) is a licensed chemical dependency counselor.
Kimes conducted a drug and alcohol assessment on Husband in July of 2020. Kimes
found that Husband did not meet the criteria for a substance abuse disorder and Kimes
did not recommend any further treatment for Husband. On cross-examination, Kimes
testified her assessment was based exclusively on what Husband told her, with the
exception of a urine drug screen. The drug test did not screen for alcohol.
{¶9} Adam Schriver (“Schriver”) is a friend of Husband’s. Schriver testified that
while Husband used to have issues with alcohol, he has changed for the better and is
now committed to being a father. Schriver stated he has not seen Husband with his
children for approximately two years, and has not spent time with Husband recently.
Morgan County, Case No. 21 AP 0001 4
{¶10} Mary Clemens, Husband’s sister, saw Husband and Wife with the children
prior to their separation. She did not see Husband drink when with them and thought his
parental interaction was appropriate. She has observed the children with Husband since
the separation for an hour or two at a time, and does not have any concerns with his or
Wife’s parenting. Mary sometimes sees Husband drink three or four drinks per weekend.
While Mary thinks Husband previously had a problem with drinking, he has changed and
that is no longer an issue.
{¶11} Iris Rowe (“Rowe”), Husband’s mother, testified she used to be the primary
babysitter for the children. Husband lives with her at her home. Rowe no longer babysits
for the children during Wife’s parenting time. Rowe testified Husband backed off drinking
in August of 2019 and now doesn’t drink around the children. Rowe confirmed that she
testified on August 28, 2019 at the temporary orders hearing that Husband drinks three
or four nights a week, five or six beers, and that he drinks one or two nights when he has
the kids.
{¶12} Candice Casto (“Casto”) is Wife’s sister. When the parties were together,
she witnessed Wife having more interaction with the children than Husband. She testified
Husband did not see G.C. for the first three years of her life. When asked if Husband
knew about the birth of G.C., Casto testified she had reason to believe Husband knew
G.C. was his daughter because Rowe, Husband’s mother, attended G.C.’s first birthday
party.
{¶13} Husband and Wife each testified extensively about child custody issues and
martial or separate property issues.
Morgan County, Case No. 21 AP 0001 5
{¶14} Wife purchased a home in 2011. Wife testified Husband moved into her
home in 2013. He lived in Wife’s home prior to their marriage, and Husband stated Wife
sometimes used portions of his check to pay the mortgage during that time. However,
Wife testified that when Husband lived with her prior to the marriage, he did not make any
mortgage payments. He would sometimes give her money, but he never paid any of the
bills. Wife sold the pre-marital home in 2017. Wife testified she used the funds from the
sale of the pre-marital home to buy a John Deere Tractor, to buy a bedroom suite, and to
pay for a part of the down-payment for the marital home.
{¶15} The parties sold the marital home during the pendency of the divorce
proceedings. Both agree the amount of the proceeds from the sale is $10,727.11. Wife
testified those funds are her separate property because the funds that went into the down-
payment for the marital home came from the sale of her pre-marital home and from her
pre-marital savings account. Husband specifically testified that Wife could have the
proceeds from the sale of the marital home. He stated the $15,000 down-payment used
to purchase the marital home came from the sale of Wife’s pre-marital home.
{¶16} While Husband testified he purchased the 2007 Ford F-150 truck he drives
prior to the marriage, Wife testified it was purchased during the marriage, and she is
actually listed as the owner of the truck because it was financed through her employee
credit union, and the payments came directly out of her paycheck. Wife testified to the
Kelley Blue Book Value of both the Ford F-150 and the GMC Terrain she drives: $14,273
for the Terrain and $8,700 for the F-150. Wife still owes money on the Terrain, and there
is approximately $2,027.26 in equity in the vehicle. Husband testified to a Kelley Blue
Morgan County, Case No. 21 AP 0001 6
Book value of $4,868 for the F-150; however, he believes that number is high because
the truck is in “rough” condition. Husband also testified the Terrain’s value is $12,642.
{¶17} Husband does not know where the John Deere Tractor, purchased for
$7,935.43 is, but if Wife still has it, he wants it. If not, he would like half of the proceeds
from the sale. Wife noted that Exhibit 13 is a list of tangible personal property the parties
each agreed to keep. The John Deere tractor is on the list. Wife has the tractor. Wife
testified it is her separate property because she wrote a check for it out of the proceeds
from the sale of her pre-marital home.
{¶18} Husband admitted he withdrew funds from the parties’ joint bank account
during the pendency of the case. He testified it was his half of the parties’ tax refund and
his half of the parties’ stimulus funds, which was approximately $6,000. He stated he did
not know the restraining order prohibited him from withdrawing money from the joint
account, but stated Wife also violated the order because she took funds out of the
account. Wife stated the date of Husband’s last withdrawal from the joint account was
August 4, 2020. On August 4, 2020, Wife withdrew the balance of the funds ($6,202.21)
from the joint account upon the advice of her attorney, and placed it into her counsel’s
IOLTA account, where it remained at the time of the trial.
{¶19} Wife testified that, during the pendency of the divorce case, she paid
expenses for Husband, including insurance on his truck, monthly cell phones charges,
and air conditioning repair for the marital home, totaling $2,427.54.
{¶20} Husband has a National Electrical Annuity Retirement Plan through his
employment which ended in 2009, prior to his marriage to Wife. His current pension
benefit through MEBA is $1,082. Wife agrees the amount in Husband’s National Electric
Morgan County, Case No. 21 AP 0001 7
annuity plan are his separate property. However, a part of his current pension was earned
during the marriage, so she believes a portion of it is marital property. Wife testified she
has an OPERS account she started contributing to in June of 2019. Wife has a 401(K)
from Genesis Healthcare. She testified the 401(K) represents funds from 2009 to 2014,
which were separate property acquired prior to the marriage. Wife rolled this 401(K) into
an Ohio Deferred Compensation Account, so this Deferred Compensation account
contains the pre-marital Genesis funds, plus contributions made during the marriage.
Husband believes he is entitled to half of Wife’s Genesis 401(K), and half of the marital
portion of Wife’s Deferred Compensation account.
{¶21} Wife has a State Farm Universal Life Insurance Policy. Wife started it when
she was 23 years old. Wife testified this is her separate property because she bought
and paid for the policy many years prior to the marriage. Wife stated she did make
monthly payments on the policy during the marriage.
{¶22} Wife testified she and Husband were in an on-and-off again relationship
prior to their marriage when G.C. was conceived. Wife told Husband when she found out
she was pregnant. Husband’s sister Mary was with Wife when she took the pregnancy
test. Rowe came to the hospital to visit G.C. when she was born. Until G.C. was three-
and-a-half years old, Husband did not have any involvement with G.C. and made no
contribution to G.C.’s support. For the next few years, Husband had sporadic involvement
with G.C., until he moved into Wife’s home in 2013. Husband testified he did not know
he was the father of G.C. until two years after she was born.
{¶23} Wife testified that, during the marriage, she was the primary caretaker of
the children. Wife stated Husband’s drinking was constantly an issue during their five-
Morgan County, Case No. 21 AP 0001 8
year marriage. Husband would drink appropriately, but then would go back to drinking
heavily, and this cycle continued throughout the marriage. Wife testified Husband would
drink around the children during the marriage.
{¶24} Husband stated he has two or three beers per week, but doesn’t overdo it.
Prior to the separation, both parties had a beer or two in front of the children and it was
not an issue. Husband testified both he and Wife smoked marijuana together. Husband
last used marijuana in early spring of 2020, uses it approximately once per month, but
never does it in front of the children. Husband agrees that in August of 2019, he was
overdoing it with alcohol because it was a month after the separation.
{¶25} Husband testified that, prior to the separation, the children would be with
him or Rowe when Wife was working. After the separation, Husband was very concerned
because C.G. could have as many as six different babysitters each week. Husband was
available to watch C.G. during these times and wanted to watch her, but Wife said no.
{¶26} Wife stated the children had so many babysitters during that time because
Husband would constantly text and bother the babysitters. Twice, Husband took C.G.
from a daycare in Zanesville when it was not his parenting time. Husband testified he
had concerns about the facility. Husband found out it took a protective order from the
court to prevent him from taking C.G. from the facility, not just a court order setting out
his parenting time. Once he was aware of this, Husband “exercised his parental right,”
went and picked up C.G., and told Wife she could pick C.G. up after work. Wife stopped
asking Rowe to babysit her children after the parties separated because Rowe yelled at
her in front of the children, telling Wife she should not divorce Husband.
Morgan County, Case No. 21 AP 0001 9
{¶27} Wife moved to Tuscarawas County in July of 2020 to be closer to her
extended family. Wife wanted to move there when she and Husband were married, but
he refused. G.C. was in favor of moving, and is very happy in her new home. Wife now
works for the Mideast Ohio Regional Council. C.G. now attends daycare while Wife is at
work.
{¶28} Husband testified Wife did not tell him what school the children would attend
after the move and has not provided him with a list of daycare provides for C.G. as
required by the temporary order. Husband is not happy with Wife’s move and intends to
stay in Morgan County. Husband wants the children back and believes they should return
to Morgan County, where they can attend the schools they attended prior to the move.
Husband said Wife always lived in Morgan County even if she worked elsewhere, and
there is no reason why she cannot do that now. If he is awarded custody of the children,
Rowe would watch them overnight, or Husband would switch his work hours.
{¶29} G.C. (twelve years old) has reported to Wife that, during recent visits with
Husband, he drinks while the children are around. Husband believes G.C. is lying. Wife
stated Husband’s phone calls with G.C. are sometimes difficult because Husband tells
G.C. she will not be living in Tuscarawas County much longer, but G.C. likes and wants
to live in Tuscarawas County.
{¶30} Husband testified Wife has not been flexible in letting him watch the
children when she is at work, and has not been flexible with parenting time. Husband
introduced text messages from Wife denying him additional parenting time. Wife testified
she did not allow Husband extra visitation because he asked repeatedly, and because
G.C. did not want to go. Wife stated there is frequent conflict between Husband and G.C.
Morgan County, Case No. 21 AP 0001 10
{¶31} Husband is concerned about the children’s medical issues, such as G.C.’s
flat feet and C.G.’s reaction to medication not being noted in her medical records. Wife
testified she has addressed the medical issues Husband is concerned about with the
pediatrician, and the pediatrician recommended no further treatment. G.C. runs cross-
county and does not complain to Wife about her feet. As to C.G.’s allergy to penicillin,
Wife called the pediatrician at the time the issue arose, who told her to stop the
medication. Wife reminded the pediatrician about the allergy at the next appointment,
and she again called the pediatrician to make sure it was noted on her chart after Husband
voiced his concern.
{¶32} Husband testified about the motion for contempt he filed against Wife. On
Veteran’s Day, he requested parenting time to take the children to a parade. Wife said
she was off that day and would not let him have the children. Husband also stated she
denied him his parenting time on Martin Luther King Day and Labor Day. Wife testified
that Husband never came to the pick the children up for Veteran’s Day or Labor Day until
a day after his visitation was supposed to have started, so she made other plans. As to
Martin Luther King Day, Wife stated Husband did pick up the children that week-end and
he had an overnight visit, but when he asked for an additional day, she said no.
{¶33} The parties had a dog that Wife gave to a friend. Wife gave away the dog
in September or October of 2019. In the parties’ initial discussion in September or
October, Wife told Husband he could have the dog; however, he told her to take the dog
and he would take the cat. Husband never said anything to Wife about wanting the dog
until May of 2020, months after she had given the dog away.
Morgan County, Case No. 21 AP 0001 11
{¶34} The GAL viewed both parents’ homes and had no concerns. When the
GAL spoke to G.C., G.C. told her that she used to know Husband drank a lot. That
stopped at the beginning of the separation. However, G.C. reported to the GAL that
Husband began drinking during parenting time at the beginning of 2020. G.C. reported
one specific time in April of 2020. The GAL did not follow up with Husband about this.
The GAL attempted to contact everyone both parties provided her with. Wife provided
her a larger list. The GAL attempted to call Russell Heban, who Husband asked her to
contact. She attempted to call him, but he did not answer, and his voice mail was not set
up. She does not have any documentation that he called her back. Husband did not
specifically ask the GAL to contact G.C.’s teachers.
{¶35} When asked about the move, the GAL testified she doesn’t think it’s far
enough away to where Husband can’t be active with the children, as he can still participate
in school events. While it may have been easier for the children to stay in Morgan County,
she believes it is Wife’s decision, and the children have connections in Tuscarawas
County.
{¶36} The GAL believes the parties have testified to varying degrees about the
amount of alcohol Husband consumes. It is clear Husband still drinks some alcohol,
which is concerning to her. Despite the assessment by Kimes, the GAL believes Husband
has alcohol issues, as he has had three OVI’s, and because of his admission to her that
he had an issue with alcohol at some point.
{¶37} The trial court issued a judgment entry and decree of divorce on
December 30, 2020. The trial court found as follows: the parties do not communicate
well and shared parenting would not be in the best interest of the children; the GAL
Morgan County, Case No. 21 AP 0001 12
recommended Wife be designated the residential parent; Wife screened negative for
drugs in March of 2020; Husband tested positive for marijuana in March of 2020; Husband
has a history of OVI; the marital residence was sold for a profit of $10,727.11; Husband
owns a 2007 Ford F-150 which is valued at $7,464.00; Wife owns a 2015 GMC Terrain,
which is valued at $14,273.00; Husband’s equity in the truck is $7,464; Wife’s equity in
the Terrain is $2,027.26; Wife has possession of a John Deere tractor which was
purchased with proceeds from the sale of Wife’s pre-marital home; Husband violated the
temporary restraining order by making multiple withdrawals from the parties’ joint savings
account, totaling $6,196.55; the court is aware that Wife withdrew the remaining
$6,202.21 from the parties’ joint savings account and placed it in a trust account of her
attorney, due to Husband’s withdrawals from the account; both Husband and Wife have
retirement accounts, the bulk of which were accrued prior to the marriage; and Wife has
a State Farm universal life insurance policy, which was taken out prior the parties’
marriage.
{¶38} The trial court took into consideration the evidence presented, including
the report of the GAL, and all the factors set forth in R.C. 3109.04 regarding the allocation
of parental rights and responsibilities. The court found it is in the best interest of the
children for Wife to be named the residential parent and legal custodian of the children.
The court awarded Husband visitation every Saturday from 10:00 a.m. to 8:00 p.m., with
additional parenting time on holidays. The trial court specifically stated Husband could
petition the court for extended parenting time upon providing proof of attending and
successfully completing a drug and alcohol assessment, and by participating in and
Morgan County, Case No. 21 AP 0001 13
successfully completing treatment as recommended by the counselor. The trial court
determined Husband should pay Wife $783.61 per month in child support.
{¶39} The trial court ordered: Wife is entitled to retain the net proceeds from the
sale of the marital residence in the amount of $10,727.11 due to the difference in the
equity in their respective vehicles; Husband shall retain the 2007 Ford F-150; Wife shall
retain the 2015 GMC Terrain; Wife shall retain the John Deere tractor and State Farm
Universal Life Insurance Policy; each party shall retain his or her own retirement
accounts; each party shall pay their own debts in their individual names; neither party
shall pay spousal support; Wife shall retain the remainder of the parties’ joint account
($6,202.21) since Husband withdrew $6,196.55 in violation of the temporary orders;
Husband is in contempt of court for violating the terms of the temporary restraining order;
and imposed a fine on Husband of $500.00.
{¶40} Husband appeals the December 30, 2020 judgment entry of the Morgan
County Court of Common Pleas, Domestic Relations Division, and assigns the following
as error:
{¶41} “I. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN
ISSUING ITS CHILD SUPPORT ORDER BY FAILING TO INCLUDE A CHILD SUPPORT
GUIDELINE WORKSHEET AS PART OF THE FINAL, APPEALABLE JUDGMENT.
{¶42} “II. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN
ISSUING PLAINTIFF/APPELLANT’S PARENTING TIME ORDER.
{¶43} “III. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN
AWARDING DEFENDANT/APPELLEE CUSTODY OF THE MINOR CHILDREN.
Morgan County, Case No. 21 AP 0001 14
{¶44} “IV. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN
AWARDING DEFENDANT/APPELLEE THE JOHN DEERE TRACTOR, THE STATE
FARM LIFE INSURANCE, AND APPELLEE’S OHIO DEFERRED COMPENSATION
RETIREMENT AS HER ‘SEPARATE PROPERTY.’
{¶45} “V. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN
AWARDING DEFENDANT/APPELLEE THE ENTIRE PROCEEDS FROM THE SALE OF
THE MARITAL RESIDENCE.
{¶46} “VI. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION
IN FAILING TO PROVIDE PLAINTIFF/APPELLANT AN OPPORTUNITY TO PURGE HIS
CONTEMPT.
{¶47} “VII. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION
IN FAILING TO ADDRESS PLAINTIFF/APPELLANT’S MOTION FOR CONTEMPT
FILED AGAINST DEFENDANT/APPELLEE.”
I.
{¶48} In his first assignment of error, Husband contends the trial court
committed error by failing to include a child support guideline worksheet as part of the
final, appealable judgment.
{¶49} In Marker v. Grimm, the Ohio Supreme Court held that a child support
computation worksheet must actually be completed and made a part of the trial court’s
record. 65 Ohio St.3d 139, 601 N.E.2d 496 (1992). This Court has held that the failure
to include the worksheet in the record constitutes reversible error. Bradley v. Hill, 5th
Dist. Delaware No. 19 CAF 10 0053, 2020-Ohio-2682. While Marker addressed the
application of a statute that has since been repealed, the current version of the support
Morgan County, Case No. 21 AP 0001 15
guideline statute, R.C. 3119.022, continues to state that a standard worksheet form “shall
be used in all courts and child support enforcement agencies when calculating child
support * * *.” R.C. 3119.022(A). Further, R.C. 3119.02 provides that when a court issues
a child support order, the court “shall calculate the amount of the parents’ child support *
* * in accordance with the basic child support schedule, the applicable worksheet, and the
other provisions of Chapter 3119 of the Revised Code.” Thus, the rule of Marker is
applicable. Bradley v. Hill, 5th Dist. Delaware No. 19 CAF 10 0053, 2020-Ohio-2682.
{¶50} Compliance with the mandate of the Revised Code and Marker serves
three purposes. First, the worksheet allows an appellate court to review the trial court’s
compliance with the statutorily mandated process for calculating child support. Id.Second, the worksheet supplies the data the trial court used to complete the child support
calculation, such as the amounts of each parent’s gross annual income, the amounts of
any income adjustments, and the amounts of any deviation adjustments. Id. The
obligation to include the child support worksheet in the record insures that all aspects of
the child support calculation are memorialized. Id. Finally, compliance with the Revised
Code fulfills the court’s duty “to act as the child’s watchdog in the matter of support.”
DePalmo v. DePalmo, 78 Ohio St.3d 535, 1997-Ohio-184, 679 N.E.2d 266 (1997).
{¶51} Wife contends the trial court did not commit error because there is a
worksheet in the record. Wife is correct that there is a child support worksheet prepared
by Morgan County Department of Job and Family Services in the record. However, the
computation in the worksheet contained in the record has Husband paying $804.23 per
month, not $783.61 per month as ordered by the trial court. While it appears the trial
court correctly utilized both Husband and Wife’s income and health insurance expenses
Morgan County, Case No. 21 AP 0001 16
that they testified to at the hearing, it is not clear how the trial court came to the $783.61
number rather than the $804.23 per month contained in the worksheet.
{¶52} Because the child support worksheet in the record does not match the
award of child support by the trial court, we find the requirements of the Ohio Revised
Code and Marker are not met in this case. Thus, we must reverse and remand the matter
to the trial court so that it may comply with the requirements of R.C. 3119.022, R.C.
3119.02, R.C. 3119.22, and the Supreme Court of Ohio’s ruling in Marker.
{¶53} Husband’s first assignment of error is sustained.
II.
{¶54} Husband argues the trial court committed error in issuing parenting time
for Husband. Specifically, Husband contends the trial court did not review the factors
contained in R.C. 3109.51. Further, Husband argues the trial court did not provide an
explanation as to why his parenting time is “severely limited.”
{¶55} The standard of review for matters concerning visitation rights is whether
the trial court committed an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 541
N.E.2d 1028 (1989). In order to find an abuse of discretion, we must determine the trial
court’s decision was unreasonable, arbitrary, or unconscionable, and not merely an error
of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶56} R.C. 3109.051 states the trial court should consider fifteen factors in
determining the children’s best interest regarding visitation. These factors include: prior
interactions of the children with the parents; location or residence of each parent; the
children’s and parents’ available time; age of the children; the children’s adjustment to
home, school, community; the wishes and concerns of the children; the health and safety
Morgan County, Case No. 21 AP 0001 17
of the children; the amount of time available to spend with siblings; the mental and
physical health of all parties; each parent’s willingness to reschedule missed parenting
time; and any other factor in the best interest of the children.
{¶57} The central focus of any visitation order is the best interest of the children.
Kelm v. Kelm, 92 Ohio St.3d 223, 749 N.E.2d 299 (2001). “A trial court may limit or restrict
visiting rights of a party in order to further the child’s best interest.” Callender v. Callender,
7th Dist. Carroll No. 03-CA-790, 2004-Ohio-1382. The court has the “power to restrict
the time and place of visitation, to determine the conditions under which visitation will take
place, and to deny visitation rights altogether if visitation would not be in the best interests
of the child.” Id.{¶58} If it is clear from the record the court considered the factors in R.C.
3109.051, even if the statute or the factors are not specifically referenced, we will not find
an abuse of discretion. Bonner v. Deselm-Bonner, 5th Dist. Guernsey No. 10CA000033,
2011-Ohio-2348. “[I]t is not an abuse of discretion when it appears from the journal entry
that some of the factors under that section were addressed.” Id., quoting Bernard v.
Bernard, 7th Dist. Columbiana No. 00 CO 25, 2002 WL 206411. Even when the trial court
cites the wrong statute as the basis of the factors it is considering, if the record reveals
that the proper factors were considered, the trial court’s judgment regarding visitation will
be affirmed. Id.{¶59} Here, the trial court does not explicitly refer to the R.C. 3109.051 factors
in its judgment entry. Nonetheless, it is clear from the record the trial court did, in fact,
consider the factors. The trial court found the parties do not communicate well, and cited
concerns about Husband’s alcohol use and positive marijuana test in March of 2020 in
Morgan County, Case No. 21 AP 0001 18
his determination of Husband’s parenting time. The trial court also cited the GAL’s
testimony and report. The GAL testified to concerns with Husband’s alcohol use, and to
the conflict between Husband and G.C.
{¶60} Husband asserts the trial court did not address Kimes’ testimony and/or
her credibility, and the decision by the trial court to not believe Kimes’ testimony regarding
Husband’s alcohol assessment was against the manifest weight of the evidence. We
disagree. It is clear from the trial court’s judgment entry that it did not find the testimony
of Kimes that Husband did not have a substance abuse disorder and did not need any
further treatment credible, as the trial court specifically stated in its judgment entry that
Husband could petition the court for extended visitation upon providing proof of attending
and successfully completing a drug and alcohol assessment, and by participating in and
successfully completing treatment as recommended by the counselor. As to the
testimony of Kimes, the trial court may believe all, part, or none of the testimony of any
witness who appears before it. Rogers v. Hill, 124 Ohio App.3d 468, 706 N.E.2d 438 (4th
Dist. 1998).
{¶61} Husband contends the trial court’s determination as to his alcohol history
is not supported by the record. We find there is competent and credible evidence in the
record to support the trial court’s determination of Husband’s alcohol history. Husband
and Rowe both admitted that Husband was drinking heavily when the temporary orders
were issued in 2019, but both testified that has since improved. Wife testified this cycle
of drinking heavily and improving was consistent with what occurred during the marriage.
During the marriage, Husband would drink less, but then would return to drinking heavily.
G.C. reported to both Wife and the GAL that Husband drinks when the children are with
Morgan County, Case No. 21 AP 0001 19
him during his parenting time. Kimes’ opinion was based solely on what Husband told
her, and the drug test she completed did not screen for alcohol. The GAL stated that,
despite Kimes’ assessment, she believes Father has an alcohol issue, as evidenced by
his three OVI’s and his admission to her about his previous alcohol use.
{¶62} We find the trial court did not commit error or abuse its discretion in its
determination of parenting time for Husband. Husband’s second assignment of error is
overruled.
III.
{¶63} In his third assignment of error, Husband argues the trial court erred and
abused its discretion in awarding Wife custody of the children. We disagree.
{¶64} The standard of review in initial custody cases is whether the trial court
abused its discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).
An abuse of discretion implies that the court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
Given the nature and impact of custody disputes, the court’s discretion will be accorded
paramount deference because the trial court is best suited to determine the credibility of
testimony and integrity of evidence. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846(1988). Specifically, “the knowledge a trial court gains through observing witnesses and
the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed
record.” Id. Therefore, giving the trial court due deference, a reviewing court will not
reverse the findings of a trial court when the award of custody is supported by a
substantial amount of credible and competent evidence. Davis v. Flickinger, 77 Ohio
ST.3d 415, 674 N.E.2d 1159 (1997).
Morgan County, Case No. 21 AP 0001 20
{¶65} R.C. 3109.04 requires a trial court to consider the best interest of the child
in making an award of custody incident to a divorce proceeding. R.C. 3109.04(F)(1)
provides that, in making this determination, a court is to consider all relevant factors,
including but not limited to: (a) the wishes of the child’s parents; (b) the wishes and
concerns of the child; (c) the child’s interactions and interrelationship with the parents; (d)
the child’s adjustment to her home and community; (e) the mental and physical health of
all persons involved in the situation; (f) the parent more likely to honor and facilitate
visitation and companionship rights approved by the court; * * * and (j) whether either
parent has established a residence, or is planning on establishing a residence outside the
state. There is no requirement that a trial court separately address each factor. Bashale
v. Quaicoe, 5th Dist. Delaware No. 12 CAF 10 0075, 2013-Ohio-3101. No one factor is
dispositive. Baker-Chaney v. Chaney, 5th Dist. Holmes No. 16CA005, 2017-Ohio-5548.
Rather, the trial court has discretion to weigh any and all relevant factors. Id.{¶66} Husband contends the trial court did not properly consider each of the
factors in R.C. 3109.04(F)(1). However, the trial court specifically stated in its judgment
entry that it considered all the factors. Absent evidence to the contrary, an appellate court
will presume the trial court considered all of the relevant factors. Id. There is no evidence
to the contrary to indicate the trial court did not consider the relevant factors in this case.
R.C. 3109.04(F) provides the court with the discretion to weigh the relevant factors and
determine how those factors apply to the child’s best interest. Wooten v. Casey, 4th Dist.
Gallia, No. 03CA15, 2004-Ohio-55.
{¶67} Husband also argues the trial court failed to consider the children’s move
to a new community and new school. Husband essentially argues that the trial court did
Morgan County, Case No. 21 AP 0001 21
not properly consider his testimony as to the difficulty of the children’s move on them and
himself, and committed error in relying on Wife’s testimony that the children were excited
to move, wanted to move, and were happy in a new school. It is well established that the
trial court, as the ultimate fact-finder and issue-resolver, is free to believe all, part, or none
of the testimony of each witness. State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d
1096 (4th Dist. 1992).
{¶68} Finally, Husband contends the trial court should not have relied on the
GAL’s recommendation as to the best interest of the children because the GAL did not
investigate the new school and home of the children. We disagree. Our review of the
record indicates the GAL performed the duties required, and was available for cross-
examination on her report by all parties at trial. Husband was able to cross-examine the
GAL and emphasize the claimed deficiencies in the report and to present witnesses.
Further, the GAL specifically testified the children were doing well in school, getting good
grades, and participating in extra-curricular activities. Due to COVID, the GAL conducted
a virtual home inspection of Wife’s home, and found it to be appropriate. The record here
indicates the trial court received and weighed the testimony of numerous witnesses in this
case, including the GAL. The trial court is the finder of fact, and addresses the weight
and credibility of the evidence before it. This court may not substitute its judgment for
that of the trial court. Smith v. Quigg, 5th Dist. Fairfield No. 2005-CA-002, 2006-Ohio-
1495.
{¶69} We find the trial court’s decision that it is in the best interest of the children
to name Wife the residential and custodial parent is supported by competent and credible
Morgan County, Case No. 21 AP 0001 22
evidence and was not an abuse of discretion. Husband’s third assignment of error is
overruled.
IV.
{¶70} In his fourth assignment of error, Husband argues the trial court abused
its discretion by awarding Wife the following as her separate property: John Deere
Tractor, State Farm Insurance Policy, and Ohio Deferred Compensation. We agree in
part and disagree in part.
{¶71} R.C. 3105.171(B) requires the trial court to determine what constitutes
marital property and what constitutes separate property. “In either case, upon making
such a determination, the court shall divide the marital and separate property equitably
between the spouses * * *.” R.C. 3105.171(B).
{¶72} R.C. 3105.171(A)(6)(a) defines separate property as “(ii) any real or
personal property or interest in real or personal property that was acquired by one spouse
prior to the date of the marriage.”
{¶73} However, “[t]he commingling of separate property with other property of
any type does not destroy the identity of the separate property as separate property,
except when the separate property is not traceable.” R.C. 3105.171(A)(6)(b). Therefore,
traceability is central when determining whether separate property has “lost its separate
character” after being commingled with marital property. Peck v. Peck, 96 Ohio App.3d
731, 645 N.E.2d 1300 (12th Dist. Butler 1994). The party seeking to establish an asset
as separate property has the burden of proof, by a preponderance of the evidence, to
trace the asset to separate property. Id. The characterization of property as separate or
marital is a mixed question of law and fact. Globokar v. Globokar, 5th Dist. Stark No.
Morgan County, Case No. 21 AP 0001 23
2009CA00138, 2010-Ohio-1737. “Trial court decisions on what is presently separate and
marital property are not reviewed unless there is a showing of an abuse of discretion.”
Vonderhaar-Ketron v. Ketron, 5th Dist. Fairfield No. 10CA22, 2010-Ohio-6593.
{¶74} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. “The underlying rationale of giving
deference to the findings of the trial court rests with the knowledge that the trial judge is
best able to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use these observations in weighing the credibility of the proferred
testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).
John Deere Tractor
{¶75} Husband argues the trial court committed error in determining the tractor
is Wife’s separate property. Husband’s argument is essentially that the items Wife
testified she purchased from the proceeds of her pre-marital home ($9,420.25 for the
marital residence down payment; $2,020.06 for a bedroom suite; and $7,935.43 for the
tractor) exceed the total amount of the proceeds she received from the home
($18,164.79) by approximately $1,200.
{¶76} We find there is competent and credible evidence to support the trial
court’s determination. Wife’s undisputed testimony was that she wrote the check for the
tractor directly from the proceeds of her pre-marital home. She stated she closed on the
sale of her house at the end of May of 2017, deposited the proceeds into her checking
account, and wrote the check for the tractor out of her personal checking account on June
2, 2017. Husband did not dispute Wife’s testimony that it was paid with the funds from
her pre-marital home.
Morgan County, Case No. 21 AP 0001 24
{¶77} When asked about the $1,200 difference, Wife specifically testified that
the tractor and the bedroom furniture were paid directly out of the proceeds from the pre-
marital home. However, she further stated she was not certain that the down-payment
for the marital house came entirely from her checking account containing the proceeds
from the pre-marital home, as it may have been a combination of funds from this checking
account and funds from her pre-marital savings account.
{¶78} Under these circumstances, there was sufficient evidence to allow the trier
of fact to conclude the tractor was purchased with Wife’s pre-marital funds. As detailed
above, the trial court, as the trier of fact, is in the best position to assess the credibility of
the witnesses.
{¶79} Husband contends the testimony of Wife is not sufficient to establish the
tractor as separate property, and argues that because Wife did not present “documented
evidence tracing the money from the sale directly to the purchase” of the tractor, the trial
court committed error in finding the tractor her separate property. However, the trial court
can find an asset remained separate property without documentary evidence. Banez v.
Banez, 5th Dist. Stark No. 2006CA00216, 2007-Ohio-4584. We find Wife’s undisputed
testimony constitutes sufficient competent and credible evidence in support of the trial
court’s determination.
Ohio Deferred Compensation
{¶80} Wife has a retirement account with Ohio Deferred Compensation. She
testified that she rolled the account balance from her Genesis Healthcare System Thrift
Plan, which was accrued prior to the marriage, into the Deferred Compensation account.
Morgan County, Case No. 21 AP 0001 25
{¶81} Wife argues the appreciation of her pre-marital Genesis Retirement
Account is passive appreciation, or an increase in value that was not due to the input of
either Husband or Wife’s labor, money, or in-kind contributions, but concedes that
$5,561.60 of the Deferred Compensation account is marital property.
{¶82} The determination as to whether the remainder of Deferred Compensation
Account is passive appreciation or whether it is marital property is within the discretion of
the trial court, and we review this determination under an abuse of discretion standard.
Middendorf v. Middendorf, 82 Ohio St.3d 397, 696 N.E.2d 575 (1998). However, the trial
court did not yet make that determination in this case, as it incorrectly assigned the
entirety of Wife’s Deferred Compensation account to her as separate property. While the
balance of the account may be passive appreciation of Wife’s pre-marital Genesis
Retirement Account, it is clear that at least $5,561.60 (employee contributions by Wife in
2019) is marital.
{¶83} Accordingly, we find the trial court committed error in finding the entirety
of the Deferred Compensation Account is Wife’s separate property. Upon remand, the
trial court should determine what portion of the Deferred Compensation Account is marital
property, subject to division.
State Farm Insurance Policy
{¶84} Husband argues the trial court committed error in finding the entirety of
the State Farm Insurance Policy is Wife’s separate property. The policy is a Universal
Life Insurance Policy. The policy had a cash value of $2,692.06 as of January 25, 2019.
{¶85} Wife testified she obtained the insurance policy when she was 23 years
old, prior to the marriage. However, she also testified that she made monthly payments
Morgan County, Case No. 21 AP 0001 26
on the insurance policy during the marriage. Portions of insurances policies paid for with
marital funds are marital assets. Cook v. Cook, 5th Dist. Delaware No. 18 CAF 0072,
2019-Ohio-1961, appeal not allowed, 157 Ohio St.3d 1405, 2019-Ohio-131 N.E.3d 71.
Accordingly, we find the trial court committed error in awarding the entirety of the
insurance policy to Wife as her separate property. Upon remand, the trial court should
determine what portion of the insurance policy was paid for with marital funds, subject to
division.
{¶86} Based on the foregoing, Husband’s fourth assignment of error is sustained
in part and overruled in part.
V.
{¶87} In his fifth assignment of error, Husband contends the trial court abused
its discretion in awarding Wife the entirety of the proceeds from the sale of the marital
home because this was not an equal division of the marital asset. We disagree.
{¶88} The Revised Code requires a trial court divide the marital property equally
unless an equal division would be inequitable, in which case, “the court shall not divide
the marital property equally but instead shall divide it between the spouses in the manner
the court determines equitable.” R.C. 3105.171(C)(1). A trial court in any domestic
relations action has broad discretion in fashioning an equitable division of marital
property. Berish v. Berish, 69 Ohio St.2d 318, 432 N.E.2d 183 (1982). The trial court’s
judgment cannot be disturbed on appeal absent a showing that the trial court abused its
discretion. Id.Morgan County, Case No. 21 AP 0001 27
{¶89} In its judgment entry, the trial court stated that, due to the difference in the
equity in the vehicles, Wife shall retain the net proceeds from the sale of the marital
residence ($10,727.11).
{¶90} Husband’s primary argument in this assignment of error is that he believes
the valuation of the equity in the vehicles assigned by the trial court is an abuse of
discretion. We disagree. When making an equitable division of the property, the trial
court has broad discretion to develop some measure of value. Berish v. Berish, 69 Ohio
St.2d 318, 432 N.E.2d 183 (1982). Thus, “[t]he valuation of marital assets is typically a
factual issue that is left to the discretion of the trial court.” Roberts v. Roberts, 10th Dist.
Franklin No. 08AP-27, 2008-Ohio-6121.
{¶91} Husband testified he believes the truck should be valued at approximately
$4,800. Wife stated it was worth approximately $8,700, based upon a Kelley Blue Book
value. Husband testified the GMC Wife drives should be valued at $12,642; Wife stated
the value is $14,273.
{¶92} The parties agree that the F-150 was paid off during the marriage. Wife
testified she is listed as the owner, because she financed it through her employee credit
union. Wife and Husband agree the GMC is not paid off, and there is still a car payment
on it. We find the trial court did not abuse its discretion in determining the value of the
vehicles. The trial court accepted the testimony of Wife in determining the value of the
GMC, and assigned a slightly lower number than the Kelley Blue Book value testified to
by Wife on the F-150, due to Husband’s testimony about the condition of the vehicle. The
credibility of the competing valuations was for the trial court to decide.
Morgan County, Case No. 21 AP 0001 28
{¶93} Husband also generally argues that the trial court’s property division was
not equal and thus the trial court abused its discretion in awarding Wife the proceeds from
the marital home. The trial court awarded Husband the equity of $7,464 in the F-150 and
the $6,196.55 he took out of the joint bank account, for a total of $13,660.55. The trial
court awarded Wife the equity in the GMC Terrain ($2,027.26), the proceeds from the
marital residence ($10,727.11), and the remaining amount in the joint checking account
($6,202.21), for a total of $18,956,58.
{¶94} Wife testified she paid $2,427.54 in expenses for Husband during the
pendency of the case. Thus, the final difference between the amount allocated to
Husband and the amount allocated to Wife was $2,868.49.
{¶95} The mere fact that a property division is unequal, does not, standing alone,
amount to an abuse of discretion. Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293;
Cunningham v. Cunningham, 5th Dist. Knox No. 09-CA-25, 2010-Ohio-1397. The trial
court has discretion when making an equitable division of the marital estate under R.C.
3105.171. Based upon the facts and circumstances of this case, we find the trial court
did not abuse its discretion in equitably dividing the marital estate.
{¶96} Additionally, during the trial, Husband specifically testified Wife could have
the proceeds from the sale of the marital home. On direct examination, when Husband’s
counsel asked him, “in regards to the proceeds from the sale of the house on Airport
Road, what are you asking to be done with that?” Husband responded, “She can have
it.” Counsel continued, “She can have the proceeds from the sale of the house?”
Husband state, “If – if that seems fair, yes.” Under the invited-error doctrine, a party may
not take advantage of an alleged error that the party induced or invited the trial court to
Morgan County, Case No. 21 AP 0001 29
make. He v. Zeng, 5th Dist. Licking No. 2003CA00056, 2004-Ohio-2434; Bradley v.
Bradley, 8th Dist. Cuyahoga No. 109792, 2021-Ohio-2514.
{¶97} Husband’s fifth assignment of error is overruled.
VI.
{¶98} In his sixth assignment of error, Husband contends the trial court abused
its discretion in failing to provide him with an opportunity to purge his contempt.
{¶99} Our standard of review regarding a finding of contempt is limited to a
determination of whether the trial court abused its discretion. Sloat v. James, 5th Dist.
Stark No. 2008 CA 00048, 2009-Ohio-2849. The burden of proof in a civil contempt is by
clear and convincing evidence. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416
N.E.2d 610 (1980).
{¶100} “A sanction for civil contempt must allow the contemnor the opportunity to
purge him or herself of contempt.” O’Brien v. O’Brien, 5th Dist. Delaware No. 2003-CA-
F-12069, 2004-Ohio-5881.
{¶101} Husband asks this Court to reverse and vacate the finding of contempt
against him. However, there is no dispute that Husband took the funds out of the joint
bank account, in violation of the trial court’s temporary orders. Thus, the trial court did
not abuse its discretion in finding Husband guilty of contempt for the willful failure to abide
by the trial court’s temporary orders.
{¶102} In this case, although a contempt hearing was duly conducted, the
sanction provided no purge as required. Bair v. Werstler, 5th Dist. Tuscarawas No. 2004
AP 08 0060, 2005-Ohio-1697. The trial court classified the $500 as a fine rather than a
Morgan County, Case No. 21 AP 0001 30
purge condition and imposed the fine without affording Husband an opportunity to purge
himself of his contempt.
{¶103} Accordingly, Husband’s assignment of error is sustained. Upon remand,
the trial court has the discretion to issue appropriate purge conditions for Husband to be
able to purge the finding of contempt. Young v. Young, 5th Dist. Stark No. 2019CA00035,
2020-Ohio-754 (remanded with directions to issue purge provision regarding contempt
finding).
VII.
{¶104} In his final assignment of error, Husband contends the trial court
committed error and abused its discretion in failing to address his motion for contempt
against Wife after both parties presented evidence on the motion at trial. Husband states
the trial court’s “silence as to the outcome” of his motion for contempt is error. We
disagree.
{¶105} A trial court’s failure to rule on a motion is presumed to be a denial of that
motion for purposes of appellate review. Hollenbaugh v. Hollenbaugh, 5th Dist. Delaware
No. 13CAF070056, 2014-Ohio-1124. In light of this presumption, we find the trial court
did not commit error in failing to rule on Husband’s motion. Id. (failure to rule on motion
for contempt was deemed to be a denial of the motion); Leister v. Leister, 5th Dist.
Delaware No. 97CA-F-07027, 1998 WL 751457 (overruling wife’s assignment of error
arguing the trial court erred in not ruling on her motion for contempt); Echols v. Echols,
2nd Dist. Clark No. 2020-CA-45, 2021-Ohio-969; Dimmerling v. Dimmerling, 7th Dist.
Noble No. 18 NO 0460, 2019-Ohio-2710.
{¶106} Husband’s final assignment of error is overruled.
Morgan County, Case No. 21 AP 0001 31
{¶107} Based on the foregoing, Husband’s second, third, fifth, and seventh
assignments of error are overruled. Husband’s first and sixth assignments of error are
sustained. Husband’s fourth assignment of error is overruled in part and sustained in
part.
{¶108} The December 30, 2020 judgment entry of the Morgan County Court of
Common Pleas, Domestic Relations Division, is affirmed in part, and reversed and
remanded in part, for proceedings consistent with this opinion.
By Gwin, J., and
Baldwin, P.J., concur
Hoffman, J., concurs in part;
dissents in part
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. CRAIG R. BALDWIN
_________________________________
HON. WILLIAM B. HOFFMAN
WSG:clw 0824
Morgan County, Case No. 21 AP 0001 32
Hoffman, J., concurring in part and dissenting in part
{¶109} I concur in the majority’s analysis and disposition of Appellant’s assignment
of error numbers 2, 3, 4,5, 6, and 7.
{¶110} I respectfully dissent from the majority’s decision to sustain Appellant’s first
assignment of error. The required child support worksheet was in the record. The fact
the amount Appellant was ordered to pay is less than the amount reflected on the
worksheet is an error Appellee could have appealed or cross-appealed. She did not do
so. I find any error related to the discrepancy has been waived. Accordingly, I would
overrule this assigned error.