Adkins v. Adkins , 2017 Ohio 8636 ( 2017 )

[Cite as Adkins v. Adkins, 2017-Ohio-8636.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
REGINA G. ADKINS, :
Plaintiff-Appellee, : CASE NO. CA2016-12-227
: OPINION
- vs - 11/20/2017
:
CURTIS M. ADKINS, :
Defendant-Appellant. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR2015-08-0654
Frank J. Schiavone IV, 6 South Second Street, Suite 520, Hamilton, Ohio 45011 and Joseph
A. Cesta, 1160 East Main Street, Lebanon, Ohio 45036, for plaintiff-appellee
Mark W. Raines, 246 High Street, Hamilton, Ohio 45011 and Mark A. Conese, 633 High
Street, Suite 102, Hamilton, Ohio 45011, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Curtis Adkins ("Father"), appeals from a decision of the
Butler County Court of Common Pleas, Domestic Relations Division, following his divorce
from plaintiff-appellee, Regina Adkins ("Mother"). For the reasons detailed below, we affirm.
{¶ 2} Mother and Father were married on March 4, 2000 and had two children by
issue of the marriage. Mother filed a complaint for divorce on September 8, 2015 and Father
Butler CA2016-12-227
answered. The matter was tried to the court where the parties introduced testimony with
respect to parenting arrangements and allocation of the marital residence and other debts.
{¶ 3} The parties disputed the valuation of the marital residence. Mother testified
that the marital residence was worth $118,510 based on the valuation made by the Butler
County Auditor. Mother also testified that the parties had sold a similar property across the
street for $121,000 after agreeing to pay the Buyer's $3,000 closing costs. Father, however,
contested the Auditor's valuation and stated that the home was worth $140,000. At different
times, Father stated that he would purchase the house for $140,000, but conceded that he
had not obtained financing and would need six months to a year to secure the necessary
financing.
{¶ 4} As to custody and visitation of the children, both parties raised concerns with
each other's drinking. Father completed an addiction assessment, which indicated that he
consumed ten or more drinks per day and engaged in drinking and driving. Two witnesses
described Father's alcohol consumption at his daughter's soccer games. Though alcohol
was commonly shared by the parents during these morning soccer games, the witnesses
described Father's drinking in more concerning terms. One witness stated that Father drank
throughout the soccer tournaments to the point of intoxication. The witness noted that Father
was inappropriate at times and nearly always had a beer in his hand at the games. A witness
also detailed one instance in which Father consumed an entire pitcher of beer in one sitting.
{¶ 5} Following the hearing, the trial court named Mother residential parent and legal
custodian of the children. Father was allocated parenting time in accordance with the
standard parenting schedule. In addition, Mother retained possession of the house, and the
trial court found the fair market value was $118,510. Father now appeals the decision of the
trial court, raising three assignments of error for review. For ease of discussion, we will
address Father's assignments of error out of order.
-2-
Butler CA2016-12-227
{¶ 6} Assignment of Error No. 2:
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT WHEN IT DENIED DEFENDANT-APPELLANT'S SHARED PARENTING PLAN
WITHOUT TESTIMONY THAT PARENTS WERE UNABLE TO WORK TOGETHER OR A
FINDING AS TO WHY IT WAS IN THE CHILDREN'S BEST INTERESTS.
{¶ 8} In his second assignment of error, Father alleges the trial court erred by
designating Mother as the residential parent and legal custodian of their daughters rather
than granting his request for shared parenting. We disagree.
{¶ 9} R.C. 3109.04 governs the award of parental rights and responsibilities. In
making this determination, the primary concern is the best interest of the child. Albrecht v.
Albrecht, 12th Dist. Butler Nos. CA2014-12-240 and CA2014-12-245, 2015-Ohio-4916, ¶ 22.
{¶ 10} In order to determine the best interest of a child, R.C. 3109.04(F)(1) requires
the trial court to consider all relevant factors. Bristow v. Bristow, 12th Dist. Butler No.
CA2009-05-139, 2010-Ohio-3469, ¶ 8. These factors include, but are not limited to (1) the
wishes of the parents, (2) the child's interaction and interrelationship with his parents,
siblings, and other persons who may significantly affect the child's best interest, (3) the child's
adjustment to home, school and community, (4) the mental and physical health of all persons
involved, and (5) the likelihood that the caregiver would honor and facilitate visitation and
parenting time. Denier v. Carnes-Denier, 12th Dist. Warren No. CA2015-11-106, 2016-Ohio-
4998, ¶ 14.
{¶ 11} With regard to whether shared parenting is in the child's best interest, the court
must consider the additional factors set forth in R.C. 3109.04(F)(2). Id. at ¶ 15. These
factors include (1) the ability of the parents to cooperate and make decisions jointly, (2) the
ability of each parent to encourage the sharing of love, affection, and contact between the
child and the other parent, (3) any history or potential for abuse, (4) the geographic proximity
-3-
Butler CA2016-12-227
of the parents to one another, (5) and the recommendation of the guardian ad litem. R.C.
3109.04(F)(2)(a)-(e).
{¶ 12} An appellate court reviews a trial court's custody determination for an abuse of
discretion. Gibson v. Gibson, 12th Dist. Clinton No. CA2016-01-002, 2016-Ohio-4996, ¶ 15.
An abuse of discretion implies that the court's attitude was unreasonable, arbitrary, or
unconscionable. Denier at ¶ 16. The discretion which a trial court enjoys in custody matters
"should be accorded the utmost respect, given the nature of the proceeding and the impact
the court's determination will have on the lives of the parties concerned." Gibson at ¶ 15.
{¶ 13} After a thorough review of the record, we find no abuse of discretion in the trial
court's decision designating Mother as the residential parent and legal custodian of the
children rather than granting Father's request for shared parenting. The record reflects that
the trial court considered all relevant factors in R.C. 3109.04(F)(1) and applied those factors
in making its decision designating Mother residential parent and legal custodian.
{¶ 14} The court heard testimony that Mother and Father have a strained relationship,
which is in part due to Father's excessive drinking. An alcohol dependency evaluation was
conducted on Father and concluded with a recommendation that Father attend outpatient
treatment for alcohol abuse. Though Father attended a few sessions, he admits that he has
not completed the program and stated that he only attended the evaluation in the hopes of
continuing his marriage.
{¶ 15} Mother testified that she has trouble communicating with Father and that
Father has engaged in physically abusive behavior. Mother alleged that Father had grabbed
her by the throat and became physical. The record reflects that there was a mutual
temporary restraining order between Mother and Father at the time of the final hearing. In
addition, during the final hearing, Father admitted to attaching a GPS tracking device on
Mother's vehicle while the parties were separated.
-4-
Butler CA2016-12-227
{¶ 16} Although Father claims otherwise, we find the trial court's decision was not an
abuse of discretion. In addition to the testimony regarding Father's drinking and the parties'
inability to communicate, Mother testified that she has been the children's primary caregiver
since the separation and Father has had limited contact with the children. Accordingly,
having found no abuse of discretion in the trial court's decision, Father's second assignment
of error is overruled.
{¶ 17} Assignment of Error No. 1:
{¶ 18} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT WHEN IT VALUED THE MARITAL HOUSE AT $118,500.00 USING THE
BUTLER COUNTY AUDITOR'S APPRAISAL INSTEAD OF USING THE DEFENDANT-
APPELLANT'S RECENT OFFER TO PURCHASE THE HOUSE AT THE HIGHER PRICE OF
$140,000.00.
{¶ 19} In his first assignment of error, Father argues that the trial court erred when it
valued the parties' marital residence at $118,510. Father contends that his "offer" to
purchase the home for $140,000 is the more appropriate measure for the value of the house.
We find no merit to Father's argument.
{¶ 20} "A trial court has broad discretion in determining the equitable division of
property in a divorce proceeding." Williams v. Williams, 12th Dist. Warren No. CA2012-08-
074, 2013-Ohio-3318, ¶ 54. "Prior to making an equitable division of marital property, a trial
court must determine the value of marital assets." Dollries v. Dollries, 12th Dist. Butler Nos.
CA2012-08-167 and CA2012-11-234, 2014-Ohio-1883, ¶ 10. When valuing a marital asset,
the trial court is not required to use a particular valuation and is not precluded from using any
method. Sieber v. Sieber, 12th Dist. Butler Nos. CA2014-05-106 and CA2014-05-114, 2015-
Ohio-2315, ¶ 34. However, in determining the value of marital property, the trial court must
have evidence before it to support the figure that it establishes. Id. "An appellate court will
-5-
Butler CA2016-12-227
not reverse a trial court's decision regarding what figures it uses to determine an equitable
division where the decision is supported by the manifest weight of the evidence." Dollries at
¶ 10.
{¶ 21} We find the trial court did not err by finding that the fair market value of the
marital residence was $118,510. The trial court heard credible evidence that the marital
residence was valued at $118,510 by the Butler County Auditor and Mother testified that she
believed that figure reflected the fair market value of the property. Though Father claims that
he offered to purchase, or would purchase the home, for $140,000, there is nothing to
suggest that this figure is more representative of the fair market value of the property than
that of Mother and the auditor.
{¶ 22} Additionally, there is no evidence to suggest that Father's offer is reasonable
or even possible under the circumstances. The testimony reflects that Father has not sought
financing for the home and he admits that he would need a year or "six months to a year" to
obtain financing for the home. In addition, there is evidence that Father also has substantial
credit card debt including maxed out credit cards and collection accounts. In short, Father's
claim that he would pay $140,000 for the home is not reflective of a sincere offer on the
home that would support an increased valuation. As a result, we find the trial court's decision
as to the valuation of the marital property is supported by the manifest weight of the
evidence. Father's first assignment of error is overruled.
{¶ 23} Assignment of Error No. 3:
{¶ 24} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT WHEN IT GRANTED POSSESSION OF THE MARITAL PROPERTY TO
PLAINTIFF-APPELLEE.
{¶ 25} In his third assignment of error, Father argues the trial court erred by awarding
Mother the marital residence. Father's argument is without merit.
-6-
Butler CA2016-12-227
{¶ 26} As previously noted, a trial court has broad discretion when dividing marital
property. Williams at ¶ 54. The trial court will not be reversed absent an abuse of discretion.
Id.{¶ 27} In dividing marital property, the court must consider R.C. 3105.171(F).
Pursuant to that provision, the trial court shall consider:
(1) The duration of the marriage;
(2) The assets and liabilities of the spouses;
(3) The desirability of awarding the family home, or the right to
reside in the family home for reasonable periods of time, to the
spouse with custody of the children of the marriage;
(4) The liquidity of the property to be distributed;
(5) The economic desirability of retaining intact an asset or an
interest in an asset;
(6) The tax consequences of the property division upon the
respective awards to be made to each spouse;
(7) The costs of sale, if it is necessary that an asset be sold to
effectuate an equitable distribution of property;
(8) Any division or disbursement of property made in a
separation agreement that was voluntarily entered into by the
spouses;
(9) Any retirement benefits of the spouses, excluding the social
security benefits of a spouse except as may be relevant for
purposes of dividing a public pension;
(10) Any other factor that the court expressly finds to be relevant
and equitable.
{¶ 28} We find the trial court did not err by awarding Mother possession of the marital
residence. In the present case, Mother was awarded custody of the children and was
currently residing in the marital residence with the children. Father had been living separately
in an apartment for some time. The record shows that it would not be in the children's best
interest to remove them from their environment. In addition, the record reveals that the
-7-
Butler CA2016-12-227
property is encumbered by a mortgage and there is little equity in the home.
{¶ 29} The majority of Father's argument is again premised on the faulty argument
that because he is allegedly willing to offer more money for the property that he should be
awarded said property. However, as addressed above, Father's position lacks in both
credibility and sincerity. The trial court was not required to accept Father's claim as true. As
a result, we find the trial court did not abuse its discretion by awarding Mother possession of
the marital residence. Father's third assignment of error is overruled.
{¶ 30} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
-8-