Habo v. Khattab , 2013 Ohio 5809 ( 2013 )

[Cite as Habo v. Khattab, 2013-Ohio-5809.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
KHALID HABO, : OPINION
Plaintiff-Appellee/ :
Cross-Appellant,
: CASE NO. 2012-P-0117
- vs -
:
REHAB J. KHATTAB,
:
Defendant-Appellant/
Cross-Appellee. :
Appeal from the Portage County Court of Common Pleas, Domestic Relations Division,
Case No. 2010 DR 00527.
Judgment: Affirmed.
Charles E. Grisi and Charles M. Budde, Grisi & Budde, 3250 West Market Street, Suite
100, Akron, OH 44333 (For Plaintiff-Appellee/Cross-Appellant).
Gary M. Rosen and Mark A. Riemer, 11 South Forge Street, Akron, OH 44304 (For
Defendant-Appellant/Cross-Appellee).
Pamela S. Harris, 199 S. Chillicothe Road, Suite 205, Aurora, OH 44202 (Guardian ad
litem).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Rehab Khattab (“mother”) appeals the divorce decree entered
by the Portage County Court of Common Pleas, Domestic Relations Division. At issue
is whether the trial court abused its discretion in awarding custody of the parties’ three
minor children to appellee, Khalid Habo (“father”), and in awarding mother an interest in
father’s pension. For the reasons that follow, we affirm.
{¶2} In October 2010, father filed a complaint for divorce from mother.
Subsequently, the trial court appointed Attorney Pamala Harris as guardian ad litem for
the parties’ children.
{¶3} In August 2011, mother filed a motion to enforce a post-nuptual separation
agreement signed by the parties in 2005 in Delaware. After a hearing on the issue, in
October 2011, the trial court entered a judgment denying the motion.
{¶4} Also, in October 2011, mother filed a motion to remove the guardian ad
litem and a motion to strike her testimony based on the guardian’s alleged bias against
mother. Following a hearing, the trial court denied the motion.
{¶5} The trial to the court lasted eight days between February 2012 and March
2012. Father and mother are medical doctors, both having received their medical
degrees in Egypt. While father is licensed to practice medicine in the United States,
mother never attempted to be licensed in this county. They were married in Egypt in
2000. Three children were born as issue of the marriage, two daughters, one, now age
11; the other, age 9; and a son, age 7.
{¶6} Lara Jester, the mother’s friend, testified that in 2003, the parties moved to
Delaware for father to complete his medical residency. They moved into an apartment
across the hall from where Ms. Jester lived with her husband. Ms. Jester said that,
about two months after the parties moved in, she heard them arguing. She said that in
the seven months the parties lived in the apartment, she heard them arguing about
seven times.
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{¶7} Mother said that in early 2004, she and father briefly separated. In 2005,
the parties signed a post-nuptual separation agreement and reconciled. In 2007, father
was employed by Robinson Memorial Hospital in Ravenna, Ohio as a pediatrician, and
the parties moved to the marital residence in Streetsboro, Ohio. Mother said that in late
2007, she began showing symptoms of obsessive compulsive disorder (“OCD”). Her
OCD took the form of fear of contamination from germs and excessive cleaning in the
marital residence.
{¶8} Father testified that mother enforced cleaning rituals, which he, the
children, and others entering the home were required to perform. The father was
required to go through these rituals each time he came home from work. In addition, if
he touched a doorknob, mother immediately cleaned it with antimicrobial wipes. The
children were not permitted to touch or hug father until he completed mother’s cleaning
rituals. The children were likewise required to perform these rituals each time they came
in the house, whether from school or playing outside. In addition, guests entering the
house were required to perform these rituals. The wife enforced these rituals due to her
obsessive fear of contamination from germs. The trial court’s judgment entry outlined in
exhaustive detail the cleaning rituals created and enforced by mother, which involved
cleaning each person entering the house with Clorox, alcohol, various disinfectants, and
other cleaning chemicals.
{¶9} Marwa Sadalla, mother’s close friend, testified that she and mother were
like sisters. She said she tolerated mother’s OCD behaviors because of their close
relationship. She said that in September 2010, she and her two children visited mother
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at the marital residence. Ms. Sadalla said that before she and her children were
allowed to enter the house, mother required them to perform her cleaning rituals.
{¶10} Ms. Sadalla said that mother developed blisters on her hands, elbows,
feet, and ankles, and the parties’ younger daughter developed eczema from her
constant exposure to mother’s cleaning chemicals. In addition, the children developed
allergies from their exposure to the cleaning chemicals.
{¶11} Officer Michael Cipriano of the Streetsboro Police Department testified
that on November 1, 2010, mother called the department alleging she was being
abused by father. The officer did not find any abuse by father, but, while inside the
marital residence, the officer smelled a strong odor of chemicals that he associated with
cleaning products. The smell was so strong that, after being in the house for a short
time, it irritated his sinuses and started to interfere with his breathing. The smell stayed
in his sinuses even after he left the house. As a result of the pervasive chemical fumes
in the house, the officer contacted the Portage County Department of Job and Family
Services reporting his observations and requesting an investigation.
{¶12} Mother admitted taking prescription-strength medication for her OCD in
February 2008. Father testified that mother voluntarily stopped taking the medication
after awhile because she believed he was contaminating it. Then, from July 2009 to
December 2009, mother took the medication.
{¶13} In December 2009, mother began treatment with a psychiatrist, Dr. R.A.
Pakeeree. He diagnosed mother with OCD in February 2010 and prescribed
medication for her. Mother continued taking her medication until August 2010, when,
according to father, mother again stopped taking it.
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{¶14} Mother conceded that she stopped taking her medication in September
2010. She said she resumed taking her medication in November 2010, after a court
hearing because, she said, the court made a big deal about her not taking her
medication.
{¶15} Dr. Robin Tener, clinical psychologist, father’s expert, testified she met
with the parties and their children on numerous occasions between July and November
2011 to conduct an assessment. She said that mother told her she never stopped
taking the medication prescribed for her OCD. However, when confronted with Dr.
Pakeeree’s notes that indicated this was not the case, mother admitted that for some
time in 2010, she stopped taking her medication.
{¶16} Dr. Tener also testified that mother told her in September and October
2011, that she had been cured of her OCD and was no longer taking medication for it.
However, Dr. Tener concluded that mother still suffers from OCD because, among other
things, the children told her that mother still has them perform her cleaning rituals.
{¶17} The trial court found that, due to the conflicting reports made by mother
concerning whether she stopped taking her medication, mother’s statement that she
never stopped taking it was not credible. Instead, the court found that mother stopped
taking her medication in August 2010, which resulted in her OCD becoming severe and
her cleaning rituals excessive.
{¶18} Mother testified that on or about November 18, 2010, the day the court
issued its temporary orders, she moved the children in her bedroom, locked the door,
and would not let them come out. She had an alarm installed on her bedroom door
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because, she said, she was afraid father would take the children. The court found this
conduct was an attempt by mother to alienate the children from their father.
{¶19} On the next day, November 19, 2010, while father was trying to take the
children to school as was the family’s custom, mother came out of the house and
became hysterical in front of the children, yelling that father was going to harm the
children and kidnap them.
{¶20} Dr. Tener, testified that during her interview with mother, she played for
her a tape recording she had made of the November 19, 2010 incident, which, mother
said, proved father was abusing her and the children.
{¶21} Dr. Tener testified that the tape showed mother was hysterical and
screaming at father in front of the children, “Don’t hurt my kids” over and over again. At
one point, mother yelled “Don’t hurt my kids” 12 times in a row. By Dr. Tener’s count,
mother yelled that plea over 70 times during the 20-minute incident.
{¶22} Dr. Tener said that, while mother was engaging in these histrionics, father
could be heard in the background calmly telling the children to “get in the car” and telling
mother, “I will take the children to school. * * * You will see them after school.”
{¶23} Dr. Tener said that, while mother was using the tape to try to prove father
was abusing the children, the tape actually showed it was mother’s “hysteria” that
caused the children to become upset and to resist being put in the car by father.
{¶24} After father was struggling to get the children in the car for about 20
minutes, mother called the police reporting domestic violence. The trial court found
mother’s actions that day were further evidence of her efforts to alienate the children
from father.
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{¶25} As a result of this incident, father was charged in the Portage County
Municipal Court with domestic violence against mother and the parties’ younger
daughter. At trial mother testified the domestic violence consisted of father slapping the
child once in the face. Father was convicted of domestic violence against the younger
daughter, but acquitted as to the charge involving mother. On May 15, 2012, father was
sentenced to probation.
{¶26} As a result of his conviction, father was terminated from his employment at
Robinson Memorial, effective May 18, 2012.
{¶27} Mother testified that, after the November 19, 2010 incident, she told the
children that if they did not visit father, he would have her arrested and put in jail. The
court found these statements suggested to the children that father is a bad person trying
to hurt mother, which was additional evidence of mother’s efforts to alienate the children
from father.
{¶28} The trial court also found that, despite the professional assistance made
available to the parties, mother continued to engage in parental alienation.
{¶29} Ms. Harris, the children’s guardian ad litem, testified she arranged the first
supervised visit between father and the children to be held in her office on November
22, 2010. This was just three days after the alleged domestic violence incident on
November 19, 2010. Ms. Harris said that during this meeting, all three children,
including the younger daughter, were affectionate with father and eager to spend time
with him. They did not demonstrate any fear of him. Based on the success of this visit,
father’s visitation with the children was modified from supervised to unsupervised.
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{¶30} However, Ms. Harris testified that after this visit, the girls’ attitude toward
father drastically changed.
{¶31} Ms. Harris said that the next visit she arranged between father and the
children was to be a four-day visit beginning on December 29, 2010. Ms. Harris was to
meet father at the marital residence to pick up the children. At that time she observed
“significant changes” on the part of the parties’ oldest daughter. In mother’s presence,
the child resisted the visit. She was hysterical, crying, and screaming that she was not
going with father and that he would hurt her. Neither the younger daughter nor the
parties’ son resisted the visit and both went in the car. However, as the son was leaving
the home with the guardian, the older daughter grabbed him; kicked the guardian; and
tried to pull the boy away from her. Mother then asked the older daughter, “Will you go
with him if he brings you back tonight?” She immediately stopped screaming and
agreed to go for the visit. However, a few hours later, the older daughter started yelling
that she wanted to go home. She threatened father that if he did not take the children
home, she would call the police and say father was harming them. As a result, father
took them home, but first took them shopping at the mall.
{¶32} After December 29, 2010, the younger daughter’s attitude toward father
also changed. Shorty after that visit, father tried to pick up the children from school for a
scheduled visit. When she saw father in the hallway, she began crying and yelling that
he had hurt her.
{¶33} Based on the girls’ increasing resistance to visits with father and their
escalating accusations against him, his visits with them were changed to supervised.
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{¶34} The court referred the parties to Carol Miller of Tallmadge Family
Visitation and Mediation Services to assist with father’s supervised visitation. Ms. Miller
reported that the first visit on February 23, 2011 was difficult due to resistance from the
parties’ daughters. Ms. Miller said that at the second visit, the girls refused to get out of
mother’s car to participate. The girls were screaming and yelling at Ms. Miller, and
mother did nothing to stop their outbursts.
{¶35} Ms. Miller said that at later visits, the girls continued to refuse to get out of
mother’s car. They would scream that they would not see father; that he hit them; and
that he hurt mother. Mother said they had to visit with father or she would be arrested.
In the girls’ presence, mother said she did not blame them if they did not want to see
father and that she would go to the Supreme Court to keep them from ever having to
live with him. Ms. Miller said the girls’ refusal to visit with father was not due to fear of
him, but, instead, was a “game” to them. Ms. Miller’s statement was based on her
observation of the girls’ smiling and smirking while screaming that father had abused
them, which the trial court had also seen during its in-camera interviews.
{¶36} As a result of the girls’ resistance, Ms. Miller advised the court that she
could no longer assist with the supervised visitation.
{¶37} The court then referred the parties to Megin Petruzzi of Child Guidance
and Family Solutions for counseling. However, after several attempts to counsel the
children between March 2011 and September 2011, Ms. Petruzzi terminated services
due to the girls’ refusal to cooperate or even get out of mother’s car.
{¶38} In July 2011, the court awarded father visitation with the son and
continued supervised visitation with the girls. In court, mother vehemently objected to
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the court’s ruling and became highly emotional in the courtroom, protesting that the
court had no right to allow father to have so much contact with the son.
{¶39} Following this hearing, mother attempted to interfere with father’s visitation
with the boy. Mother told him not to talk to the babysitter because she would testify
against mother. This made him fearful about going to the sitter, and father started
taking the boy to work at the hospital with him. Then, mother told the boy he should not
go to the hospital with father because there were germs there and he might become ill.
{¶40} Dr. Tener testified that mother’s intervention damaged the girls’ attitude
toward their father. Dr. Tener said that mother has engaged in alienating behavior that
has adversely affected the girls’ relationship with father. She said that mother has
instilled in the girls the false belief that father wants to harm them or will contaminate
them with his germs. Further, mother has no insight regarding her OCD or the harm her
OCD and alienating behaviors have caused the girls. Thus, mother sees no problem
with her behavior and no need to change it.
{¶41} Mother’s expert, Dr. Douglas Darnell, psychologist, also testified that
“mother engaged in * * * alienating behavior” and that the children’s actions are
consistent with “parental alienation syndrome.” Dr. Darnell said that mother’s purported
rescue of the children when there was no real threat to their safety has sent them the
message that father is dangerous or that there is something wrong with him. Dr. Darnell
said mother is an “active alienator,” meaning that she becomes more alienating when
she is under stress, but later, when she is more composed, she can recognize her
alienating behavior was inappropriate. An active alienator like mother vacillates
between alienating behavior and being more composed, in contrast to the “obsessed
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alienator,” who is not receptive to counseling. Dr. Darnell stated that in his meetings
with father and the girls, despite the girls’ defiant and blatantly rude behavior toward
father, he tried to reach out appropriately to the girls. However, each time he did, they
“shut him off.” They would turn their chairs around so their backs were facing him.
Despite this rude behavior, father retained his composure.
{¶42} During the court’s in-camera interviews with the three children, the parties’
daughters said they hated father; that they never want to see him again; and that they
only want to be with mother. Both girls repeatedly told the judge that if the court forced
them to see father, it would “ruin their lives.” The older daughter said that even talking
with someone about father would ruin her life. The trial court found that the girls
appeared to be reciting negative information about father previously told to them. In
stark contrast, the parties’ son spoke lovingly of his father; said he got along well with
him; and smiled and happily responded to questions about his relationship with his
father.
{¶43} Mother admitted at trial that her actions have caused the girls to become
alienated from father, but testified that she did not know how to correct the situation she
had created. While she acknowledged the girls’ disrespectful behavior toward father is
inappropriate, she said the girls are justified in not wanting to see him and that she
cannot make them see him.
{¶44} A teacher and principal at the children’s school both testified that, prior to
the divorce case being filed, the children had a good and affectionate relationship with
father, but that since that time, the girls’ relationship and attitude toward him changed
11
drastically. For example, they heard the girls call father a liar. In contrast, both
witnesses said that the son still has a good relationship with father.
{¶45} Dr. Tener stated in her report that, due to mother’s complete lack of
insight, she will continue to make serious allegations against father and will encourage
the children to do so. The doctor said the children are currently being subjected to
distorted parental influence by mother, which is “markedly unhealthy” for them. She
said the only way to eliminate this harm is to prevent them from future exposure to the
negative influence of mother that is so powerful, it has made it impossible for the
children to accept and benefit from father’s attention and support.
{¶46} Dr. Tener recommended father be designated the children’s sole
residential parent and that mother be given supervised visitation to ensure her contact
with the children is neutral. She said that as long as the children stay with mother,
nothing will change.
{¶47} Ms. Harris, the guardian ad litem, also recommended father be designated
the children’s sole residential parent and that mother’s visitation be supervised. The
guardian testified that as long as the girls remain with mother, the situation will not
improve.
{¶48} Significantly, mother’s expert, Dr. Darnell, also testified mother’s actions
have alienated the children from father. He said “an alienated child becomes a true
believer.” He said that the girls’ alleged fear of father was not justified, but, due to
mother’s actions, it is real to them. Dr. Darnell said that mother had engaged in acts
that constituted parental alienation. Despite the foregoing, Dr. Darnell recommended
mother remain the children’s residential parent.
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{¶49} The court entered a highly-detailed, largely single-spaced 84-page divorce
decree on August 22, 2012. With respect to the allocation of parental rights and
responsibilities, the court made exhaustive factual findings about the parties’ history and
relationship with their children. The court also made findings regarding each of the ten
best-interest factors. The court found mother’s mental health to be the most significant
factor. The court found that mother did not appreciate the severity of her condition or its
devastating impact on the children. The court noted that mother openly blames father
for her OCD. The court found that, due to mother’s actions, the children now associate
her cleaning rituals with father being contaminated and believe that by having contact
with him, they, too, will become contaminated. The court found that, because mother is
so committed to her cleaning rituals, the children now inappropriately see her conduct
as normal.
{¶50} The trial court found the second most significant factor was mother’s
attempts to alienate the children from father. The court found that, while father never
attempted to interfere with mother’s relationship with the children, mother has taken
deliberate and repeated steps to interfere with father’s relationship with the girls. The
court found mother instilled in the minds of the parties’ daughters a distorted fear of
father. The court found that mother’s actions rise to the level of “extreme parental
alienation.”
{¶51} The court found that, because mother’s actions inflicted such serious harm
on the children, it was required to take drastic measures to prevent future harm to them.
As a result, the court found it was in the children’s best interests that father be
designated their sole residential parent and that mother have supervised visitation.
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{¶52} Mother appeals and father cross-appeals the divorce decree. Mother
asserts four assignments of error. For her first assigned error, she alleges:
{¶53} “The Trial Court abused its discretion applying the best interests of the
child analysis stated in R.C. 3109.04(F)(1) when it named Plaintiff-Appellee, who had
been convicted of domestic violence against his daughter during the divorce litigation,
the sole residential and legal custodian while only permitting supervised visitation for the
Defendant-Appellant.”
{¶54} This court has held that decisions involving the custody of children are
“accorded great deference on review.” Bates-Brown v. Brown, 11th Dist. Trumbull No.
2006-T-0089, 2007-Ohio-5203, ¶18. Thus, any judgment of the trial court involving the
allocation of parental rights and responsibilities will not be disturbed absent a showing
of an abuse of discretion. Id. The term “abuse of discretion” is one of art, connoting
judgment exercised by a court, which does not comport with reason or the record. Gaul
v. Gaul, 11th Dist. Ashtabula No. 2009-A-0011, 2010-Ohio-2156, ¶24.
{¶55} The highly deferential abuse-of-discretion standard is particularly
appropriate in child custody cases since the trial judge is in the best position to
determine the credibility of the witnesses, and there “may be much that is evident in the
parties’ demeanor and attitude that does not translate well to the record.” Wyatt v.
Wyatt, 11th Dist. Portage No. 2004-P-0045, 2005-Ohio-2365, ¶13. In determining
whether the trial court has abused its discretion, a reviewing court is not to weigh the
evidence, but, rather, must determine from the record whether there is some competent,
credible evidence to sustain the findings of the trial court. Clyborn v. Clyborn, 93 Ohio
App.3d 192, 196 (3d Dist.1994).
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{¶56} Mother argues the court did not explain why it did not give much weight to
the conviction. However, the court expressly stated in the decree that it considered
father’s conviction. The court ranked this factor as fourth in importance out of the ten
best-interest factors. The court also heard the testimony of Dr. Tener, who summarized
a tape recording mother had made of the incident giving rise to father’s conviction.
Based on the evidence presented, the court found that, in light of the circumstances,
father’s actions on November 19, 2010, were reasonable and necessary to get the
children in his car so he could take them to school.
{¶57} Next, mother argues the court should have given more weight to father’s
long history of engaging in abuse against his family. By way of example, she refers to a
2004 civil protection order allegedly issued by a Delaware court. However, that
protective order, in addition to being remote in time, is not referenced by mother as
being in the record. Therefore, if it was issued, we have no idea of its terms or the
reasons it was granted.
{¶58} As another example of father’s alleged abuse, mother references the
testimony of her friend, Lara Jester, who lived across the hall from the parties in
Delaware for seven months. Ms. Jester testified that on one occasion, she heard
“shuffling noises” coming from the parties’ apartment, which she interpreted as
someone being pushed. However, the trial court sustained father’s objection to Ms.
Jester’s speculation as to the cause of the shuffling noise and mother has not appealed
this ruling. Thus, mother’s reliance on this testimony is unavailing.
{¶59} As another example of father’s alleged abuse, mother references her and
her sister’s testimony that on one occasion father slapped mother. However, the
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incident was not reported or corroborated by any independent evidence and mother
sought no medical treatment for this alleged slapping incident.
{¶60} As a final example of father’s alleged abuse, mother references the girls’
allegations that father had abused them. However, in the divorce decree, the trial court
questioned the reliability of the girls’ reports of abuse. In support, the court noted that,
during the in-camera interviews, the younger daughter could not provide any detail
regarding alleged incidents of abuse and the older daughter provided the court with
inconsistent answers to the court’s questions regarding father’s alleged abuse.
{¶61} Next, mother argues the trial court placed too much weight on her OCD
because she alleges it is now under control. In support, she referred to the medical
chart of her psychiatrist, Dr. Pakeeree. In Dr. Pakeeree’s report, dated February 1,
2010, he diagnosed mother as having OCD and said she had a five-year history of
obsessive-compulsive symptoms, which consisted of compulsive cleaning. Dr.
Pakeeree prescribed medication for mother’s OCD, but he reported she was “not
receptive to any behavior modification treatment.” Dr. Pakeeree’s notes regarding
mother’s monthly visits between February 2010 and April 2010 show mother reporting
she still has obsessive-compulsive symptoms and rituals. In Dr. Pakeeree’s report of
November 10, 2010, he said mother “has a diagnosis of OCD” with symptoms being
compulsive cleaning and obsessive rituals. Dr. Pakeeree noted that in September 2010,
mother voluntarily stopped taking the medication he had prescribed for her because she
did not feel she needed it. Dr. Pakeeree’s notes show that he saw mother once a
month between November 1, 2010 and September 2011, during which visits mother
said her OCD symptoms were now under control. However, the record does not include
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any follow-up reports from Dr. Pakeeree after November 10, 2010. Thus, the last time
Dr. Pakeeree expressed an opinion regarding mother’s OCD was in November 2010.
Moreover, Dr. Pakeeree did not testify at trial.
{¶62} In further support of mother’s argument that the court put too much weight
on her OCD, she refers to the psychological evaluation performed by the court-
appointed psychologist, Virginia Clark, Ph.D., of Western Reserve Psychologists.
However, in her report, dated March 31, 2011, four months after Dr. Pakeeree’s last
report, Dr. Clark said that mother has moderately severe OCD with symptoms of
excessive cleaning rituals. At that time, Dr. Clark stated that mother currently “struggles
with moderately severe OCD.”
{¶63} Finally, mother argues the trial court’s findings contradicted Dr. Clark’s
recommendation that mother remain the children’s residential parent. However, this
recommendation was tempered by Dr. Clark’s finding that mother’s “OCD significantly
impacts the children’s development and adjustment as they accommodate her
compulsive rituals.” Further, Dr. Clark recommended that mother “should remain on
medication and participate in cognitive behavioral therapy for the treatment of her
OCD.” Thus, Dr. Clark found that mother still has OCD and OCD symptoms, including
compulsive cleaning rituals.
{¶64} In any event, both Dr. Tener and Attorney Pamala Harris, the children’s
guardian ad litem, recommended that father be designated residential parent of the
children and that mother’s visitation be supervised. We note that Dr. Tener’s report was
dated November 30, 2011, more than one year after Dr. Pakeeree’s last report
regarding mother’s OCD and eight months after Dr. Clark’s report. The trial in this case
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began on February 6, 2012. Thus, the most recent doctor’s report prior to trial was that
of Dr. Tener.
{¶65} We therefore hold the trial court did not abuse its discretion in allocating
parental rights and responsibilities.
{¶66} Mother’s first assignment of error is overruled.
{¶67} For her second assigned error, mother alleges:
{¶68} “The trial court committed reversible error by not applying Delaware
contract law to determine the validity of the Separation Agreement.”
{¶69} Mother argues the trial court erred in not applying Delaware law in ruling
on her motion to enforce the parties’ 2005 separation agreement. However, the trial
court did not address the choice of law issue because mother did not raise it in her
motion to enforce. “‘[A]n appellate court will not consider any error which counsel for a
party complaining of the trial court’s judgment could have called but did not call to the
trial court’s attention at a time when such error could have been avoided or corrected by
the trial court.’” Warren v. Warner Realty, 11th Dist. Trumbull No. 98-T-0117, 1999 Ohio
App. LEXIS 4976, *5 (Oct. 22, 1999), quoting State v. Childs, 14 Ohio St. 2d 56 (1968),
paragraph three of the syllabus. Such failure constitutes a waiver of the right to raise the
error on appeal. Warren, supra. Because mother failed to raise the choice of law issue
in her motion to enforce, it is waived. In any event, the court did not find the contract to
be unenforceable under Ohio law. It simply exercised its discretion not to enforce it.
{¶70} The 2005 separation agreement included several financial provisions. It
provided that in any future divorce case, father would be liable for all mother’s attorney
fees and her living expenses until the divorce was final. The agreement also included a
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provision for payment of a $150,000 advance of the division of the parties’ property.
This payment was to be in addition to father’s obligation to pay mother’s attorney fees.
Mother argues the financial provisions of the separation agreement were enforceable
against father. However, the separation agreement also provided that it “may be
offered in evidence in any [divorce] suit, and if acceptable to the Court, shall be
incorporated by reference in the decree that may be granted in such suit.” (Emphasis
added.)
{¶71} In the judgment denying mother’s motion to enforce, the court found that,
since the time the parties signed the separation agreement, the parties have had a third
child, the son. The court also found that, since the execution of the separation
agreement, there has been a significant change in the parties’ financial circumstances.
In 2005, when the separation agreement was executed, father was employed as a
medical resident earning $40,000/year with prospects of earning $180,000/year.
However, as of the hearing on the motion, the marital residence was in foreclosure and
the amount owed on the mortgage was in excess of the current market value. As a
result, the trial court decided not to enforce the separation agreement.
{¶72} Moreover, the language used in the separation agreement providing that it
would be enforced only if the court finds it to be “acceptable” demonstrates the parties
intended to give the court discretion in determining whether to enforce the agreement.
{¶73} The reasons articulated in the court’s judgment entry demonstrate that the
court exercised its discretion in not adopting the separation agreement. Because the
court’s decision was based on reason and the record, we cannot say the trial court
abused its discretion in not enforcing the parties’ separation agreement.
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{¶74} Mother’s second assignment of error is overruled.
{¶75} For her third assignment of error, mother contends:
{¶76} “The Trial Court committed prejudicial error by not removing Guardian Ad
Litem Pamela [sic] Harris from the case and by not striking her testimony from the
record.
{¶77} This court has held that a trial court’s ruling on a motion to remove a
guardian ad litem is reviewed for an abuse of discretion. Meyers v. Hendrich, 11th Dist.
Portage No. 2009-P-0032, 2010-Ohio-4433, ¶21.
{¶78} Mother argues the trial court erred in not removing Ms. Harris as guardian
or striking her testimony because she offered to testify for father in his criminal trial, in
violation of R.Sup. 48(D)(2). That rule provides that a guardian ad litem shall maintain
independence, objectivity, and fairness as well as the appearance of fairness in
dealings with parties and professionals.
{¶79} However, mother does not reference any evidence in the record that
shows that Ms. Harris offered to testify for father or that she in fact testified for him. In
fact, Ms. Harris testified that father’s criminal defense attorney asked her to testify about
a video she had seen, but she declined.
{¶80} Next, mother argues the fact that Ms. Harris had a conversation with her
at court on the day of father’s criminal trial shows her bias. However, Ms. Harris
testified she merely said “hello” to mother because she had already said “hello” to father
and wanted to be fair to both. Mother admitted Ms. Harris told her she was only at the
trial to observe and take notes for the divorce case. Thus, there is no evidence Ms.
Harris acted with any bias or unfairness with respect to mother.
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{¶81} Mother next argues that, because Ms. Harris did not file a written report
with the court regarding a conflict between her recommendation and the girls’ wishes,
as required by Sup.R. 48(D)(8), she violated that rule. Mother argues that if Ms. Harris
had filed such a report, she would have had more time to find “a better expert witness”
than Dr. Darnell. However, violations of the Rules of Superintendence are not grounds
for reversal. The Supreme Court of Ohio has held:
{¶82} [The] “Rules of Superintendence are designed (1) to expedite the
disposition of both criminal and civil cases in the trial courts of this
state, while at the same time safeguarding the inalienable rights of
litigants to the just processing of their causes; and (2) to serve that
public interest which mandates the prompt disposition of all cases
before the courts.” State v. Singer, 50 Ohio St. 2d 103, 109-110
(1977).
{¶83} Further, the Rules of Superintendence
{¶84} are not the equivalent of rules of procedure and have no force
equivalent to a statute. They are purely internal housekeeping rules
which are of concern to the judges of the several courts but create
no rights in individual defendants. State v. Gettys, 49 Ohio App. 2d
241, 243 (3d Dist.1976). Accord State v. Navedo, 11th Dist. Lake
No. 2007-L-094, 2008-Ohio-2324, ¶18 * * *.
{¶85} In any event, mother concedes she retained her own expert, Dr. Darnell.
Moreover, the record is silent as to who mother would have allegedly retained if she had
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been provided written notice of the difference between Ms. Harris’ recommendations
and the girls’ wishes. Thus, mother failed to prove prejudice.
{¶86} We therefore hold the trial court did not abuse its discretion in denying
mother’s motion to strike and to exclude the guardian’s testimony.
{¶87} Mother’s third assignment of error is overruled.
{¶88} For her fourth and final assignment of error, mother alleges:
{¶89} “The Trial Court abused its discretion in assessing credibility of Appellant
and witness Mawra Sadalla.”
{¶90} Mother argues the trial court abused its discretion in finding father and
mother’s friend Marwa Sadalla to be credible witnesses. However, this court has
repeatedly held that “[w]itness credibility rests solely with the finder of fact.” River Oaks
Homes, Inc. v. Twin Vinyl, Inc., 11th Dist. Lake No. 2007-L-117, 2008-Ohio-4301, ¶27.
Thus, “the finder of fact is entitled to believe all, part, or none of the testimony of any
witness.” Id.
{¶91} As a result, the trial court was entitled to find father and Ms. Sadalla to be
credible witnesses. While mother points out certain alleged inconsistencies in father’s
testimony and an alleged financial relationship between Ms. Sadalla’s husband and
father, the trial court obviously found these issues to be insignificant in assessing the
credibility of these witnesses. Because the trier of fact is in a better position to observe
the witnesses’ demeanor and weigh their credibility, the trial court was entitled to make
this call. State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus. We
thus hold the trial court did not abuse its discretion in finding these witnesses to be
credible.
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{¶92} Mother’s fourth assignment of error is overruled.
{¶93} Father asserts two assignments of error for his cross-appeal. For his first
assigned error, he alleges:
{¶94} “The trial court abused its discretion when it failed to offset Plaintiff/Cross-
Appellants’ hypothetical social security benefit against his Ohio Public Employee’s
Retirement Service pension plan.”
{¶95} This court has held:
{¶96} “Generally, pension or retirement benefits earned during the course
of a marriage are marital assets to be considered when dividing
marital property. Hoyt v. Hoyt, 53 Ohio St. 3d 177 (1990) * * *. An
appellate court applies an abuse of discretion standard of review to
a trial court’s decision regarding the division of retirement assets.
Levine v. Levine, 4th Dist. Washington No. 98 CA 34, 1999 Ohio
App. LEXIS 4209 (Sept. 3, 1999).” DeChristefero v. DeChristefero,
11th Dist. Trumbull No. 2001-T-0055, 2003-Ohio-3065, ¶28.
{¶97} Father presented two reports from Pension Evaluators regarding his
retirement benefit. The first report concluded the present value of his PERS pension
with Robinson Memorial Hospital, is $119,129. The second report concluded the
present value of his “hypothetical social security benefit,” if he had worked in the private
sector during the marriage, is $122,315.
{¶98} Father argues that the trial court abused its discretion by not offsetting his
hypothetical social security benefit against his PERS benefit pursuant to the rule
adopted by the Superior Court of Pennsylvania in Cornbleth v. Cornbleth, 397 Pa.
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Super. 421 (1990) and this court’s decision following Cornbleth in Thompson v.
Thompson, 11th Dist. Portage No. 2010-P- 0058, 2011-Ohio-6689.
{¶99} This court in Thompson noted that, unlike PERS, state courts cannot
divide social security benefits pursuant to federal statute. Id. at ¶18. This court noted
this can create an inequity when one spouse contributes to the social security system
and the other spouse contributes to a government pension system like PERS. Id. Public
employees contributing to a pension system like PERS may be penalized because their
pension is marital property subject to division, while their spouse's social security is not
marital property under federal statute. Id.
{¶100} In Thomspon, this court stated:
{¶101} “To facilitate a process of equating [public pension] participants and
Social Security participants we believe it will be necessary to
compute the present value of a Social Security benefit had the
[public pension] participant been participating in the Social Security
system. This present value should then be deducted from the
present value of the [public] pension at which time a figure for the
marital portion of the pension could be derived and included in the
marital estate for distribution purposes. This process should result
in equating, as near as possible, the two classes of individuals for
equitable distribution purposes.” Id. at ¶15, quoting Cornbleth,
supra, at 427.
{¶102} Thus, father argues that before his pension can be divided as marital
property, the present value of his hypothetical social security benefit, which he would
24
have received if contributing to social security, should be deducted from the present
value of his public pension benefit to determine the marital portion of the pension.
Under father’s argument, the trial court should have subtracted his hypothetical social
security benefit, i.e., $122,315, from his OPERS benefit, i.e., $119,129, leaving $0.00 as
the amount of his pension subject to division.
{¶103} However, the Superior Court of Pennsylvania later declined to follow its
holding in Cornbleth in McClain v. McClain, 693 A.2d 1355 (1997), because the wife in
McClain had no pension. The court held: “Clearly, it would be inequitable under the
facts of this case to credit Husband with the value of hypothetical social security
contributions when Wife, unlike the [wife] in Cornbleth, * * * has no appreciable social
security benefits of her own to balance against such a credit. Id. at 359.
{¶104} We note that in Thompson, like Cornbleth, one spouse had contributed to
social security, while the other had an STRS benefit. Thus, this case is distinguishable
from Thompson and Cornbleth because mother has no social security benefits.
Pursuant to McClain, supra, because mother has no pension of her own, the trial court
did not abuse its discretion in deciding not to credit father with the value of his
hypothetical social security benefit.
{¶105} Father’s first assignment of error is overruled.
{¶106} For his second and final assigned error, father argues:
{¶107} “The trial court abused its discretion in granting a downward deviation of
Wife’s child support obligation.”
{¶108} This court reviews an award of child support for an abuse of discretion.
Holt v. Holt, 11th Dist. Trumbull No. 2002-T-0147, 2004-Ohio-4536, ¶11.
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{¶109} Father argues the trial court abused its discretion in allowing a downward
deviation of mother’s child support obligation. We disagree.
{¶110} Based on father’s loss of his job, effective May 2012, the trial court
imputed minimum wage to him and imputed $29,559 to mother based on her part-time,
minimum-wage job working for her brother and a vocational assessment presented at
trial. Using these figures, mother’s guideline child support obligation was $633/month.
The trial court granted a downward deviation, reducing her obligation to $375/month. In
support of this deviation, the court cited mother’s lack of income and the costs she will
incur for counseling and supervised visitation. We note that, although father lost his
current job following his conviction of domestic violence, his potential earning capacity is
greater than that of mother, given her limited English language skills and her minimal
prior employment.
{¶111} Since the court justified its deviation in the amount of child support owed
by mother by stating its reasons, which are supported by the record, we cannot say the
court abused its discretion.
{¶112} Father’s second assignment of error is overruled.
{¶113} For the reasons stated in the opinion of this court, appellant’s and cross-
appellant’s assignments of error are overruled. It is the judgment and order of this court
that the judgment of the Portage County Court of Common Pleas, Domestic Relations
Division, is affirmed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
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concur.
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