Okoye v. Okoye , 2018 Ohio 74 ( 2018 )

[Cite as Okoye v. Okoye, 2018-Ohio-74.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
BRIDGET I. OKOYE C.A. No. 28183
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
IKE J. OKOYE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2013-09-2546
DECISION AND JOURNAL ENTRY
Dated: January 10, 2018
TEODOSIO, Judge.
{¶1} Ike J. Okoye appeals the decree of divorce entered by the Summit County Court
of Common Pleas Domestic Relations Division on March 2, 2016. We affirm.
I.
{¶2} Mr. Okoye and Bridget I. Okoye were married in 2001 and adopted two Nigerian
children together in 2008. At that time, the parties did not report any marital discord. However,
in 2011, Mr. Okoye was alleged to have pushed Ms. Okoye to the ground, resulting in injury to
her and his arrest for domestic violence. Mr. Okoye contends she fell of her own accord. Ms.
Okoye subsequently asked to withdraw her complaint and the case was dismissed after the
couple attended counselling sessions. Despite the dismissal of the case, Ms. Okoye continued to
maintain that she was pushed by Mr. Okoye.
{¶3} In 2013, the Okoyes began to have issues with regard to the discipline of their
children, with each side accusing the other of inappropriate behavior. This led to Mr. Okoye
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installing motion-sensing cameras around the house. On August 8, 2013, an incident was
recorded where the children had been fighting, and in response, Ms. Okoye spanked one of the
children with a wooden spoon while the other child jumped on her back, presumably in an
attempt to stop her. Mr. Okoye filed a civil protection order on August 22, 2013, resulting in
Ms. Okoye being removed from the marital residence.
{¶4} Ms. Okoye filed for a divorce in September 2013, and a temporary order was
entered setting forth supervised parenting time for Ms. Okoye. When this arrangement proved to
be unsuccessful, an emergency hearing before a magistrate took place in January 2014, with the
court ordering supervised parenting time for Ms. Okoye. These visits took place at a Chuck E.
Cheese restaurant, but were eventually discontinued after the children became unwilling to
participate. In September 2014, by an agreed order, the parties were referred to Minority
Behavioral Health Group for family counseling.
{¶5} The matter came before the trial court for trial in March and June of 2015, with
the trial court entering a decree of divorce on March 2, 2016. In pertinent part, the entry
allocated sole parental rights and responsibilities of the minor children to Ms. Okoye and granted
supervised visitation with Mr. Okoye once a week for two hours. The trial court also ordered
Mr. Okoye to pay spousal support in the amount of $1,254.00 per month for a period of 37
consecutive months, effective March 9, 2016.
{¶6} The trial court further addressed the issue of financial misconduct by Mr. Okoye,
finding that he had transferred nearly all of his 401(K) account balance to an Ameriprise account.
Mr. Okoye failed to list the account as property as required at the initiation of the divorce case
and made withdrawals from the account in violation a restraining order entered by the trial court.
Mr. Okoye contended the money in the account belonged to a Nigerian organization called
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ADTU as payment for a debt he owed to the organization. Mr. Okoye alleges he acquired a loan
from ADTU in order to pay for Ms. Okoye’s medical issues and for adoption expenses. In the
decree of divorce, the trial court found the balance of Mr. Okoye’s Ameriprise account to be
marital property and further found that the funds owed to ADTU were not proven to be a marital
debt. Mr. Okoye now appeals, raising four assignments of error.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN ALLOCATING SOLE PARENTAL RIGHTS
AND RESPONSIBILITIES TO PLAINTIFF MOTHER CONTRARY TO THE
EVIDENCE AND THE PROVISIONS OF [R.C.] 3109.04.
{¶7} Mr. Okoye argues the trial court’s decision to allocate parental rights and
responsibilities primarily to Ms. Okoye was against the weight of the evidence and that a careful
weighing of the factors provided for by R.C. 3109.04(F)(1) favored a determination that
allocation of parental rights and responsibilities primarily to Mr. Okoye would have been in the
best interest of the children. We disagree.
{¶8} “When allocating parental rights and responsibilities, the court must take into
account the best interest of the children.” Bentley v. Rojas, 9th Dist. Lorain No. 10CA009776,
2010–Ohio–6243, ¶ 19, citing R.C. 3109.04(B)(1). In determining the best interest of the
children for purposes of allocating parental rights and responsibilities, a court must consider the
factors listed in R.C. 3109.04(F)(1). Patton v. Hickling–Patton, 9th Dist. Medina No.
13CA0071–M, 2014–Ohio–2862, ¶ 8. Those factors include: (1) the wishes of the children’s
parents; (2) the wishes of the children, if the court interviews the children; (3) the children’s
interaction and interrelationship with their parents, siblings, and anyone else who may
significantly affect their best interest; (4) the children’s adjustment to home, school, and
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community; (5) the mental and physical health of all persons involved; (6) the parent more likely
to honor and facilitate court-approved parenting time rights; (7) whether either parent has failed
to make child support payments; (8) whether either parent or any household member previously
has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in
a child being an abused child or a neglected child; (9) whether one of the parents has
continuously and willfully denied the other’s right to parenting time; and (10) whether either
parent has established a residence, or is planning to establish a residence, outside Ohio. R.C.
3109.04(F)(1)(a)-(j).
{¶9} “A trial court possesses broad discretion with respect to its determination of the
allocation of parental rights and responsibilities, and its decision will not be overturned absent an
abuse of discretion.” Kokoski v. Kokoski, 9th Dist. Lorain No. 12CA010202, 2013–Ohio–3567,
¶ 26. An abuse of discretion means more than an error of law or judgment; it implies that the
trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219 (1983). When applying the abuse of discretion standard, a reviewing court
is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio
State Med. Bd., 66 Ohio St. 3d 619, 621 (1993).
{¶10} Although we recognize the concerns expressed in the separate concurring opinion,
this Court is required to apply the following standards of review. “[A]bsent an argument that the
trial court reached an incorrect factual determination on one or more of the best interest prongs,
this Court will review a trial court’s best interest analysis under an abuse of discretion standard
of review.” Walsh–Stewart v. Stewart, 9th Dist. Wayne No. 12CA0031, 2012–Ohio–5927, ¶ 20.
While a trial court’s decision regarding allocation of parental rights will not be overturned absent
an abuse of discretion, an appellate court reviews the trial court’s factual findings under a
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manifest weight of the evidence standard. See Wallace v. Wallace, 195 Ohio App. 3d 314, 2011–
Ohio–4487, ¶ 10 (9th Dist.). “[B]efore an appellate court will reverse a judgment as against the
manifest weight of the evidence in a civil context, the court must determine whether the trier of
fact, in resolving evidentiary conflicts and making credibility determinations, clearly lost its way
and created a manifest miscarriage of justice. Only in the exceptional case, where the evidence
presented weighs heavily in favor of the party seeking reversal, will the appellate court reverse.”
Boreman v. Boreman, 9th Dist. Wayne No. 01CA0034, 2002–Ohio–2320, ¶ 10. Manifest weight
of the evidence pertains to the burden of persuasion. Eastley v. Volkman, 132 Ohio St. 3d 328,
2012–Ohio–2179, ¶ 19. “In weighing the evidence, the court of appeals must always be mindful
of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{¶11} We will consider each of the factors provided under R.C. 3109.04(F)(1) below.
{¶12} The wishes of the children’s parents. Both Mr. Okoye and Ms. Okoye wished
to be named the sole residential parent. Ms. Okoye requested that visitation with Mr. Okoye be
supervised. Mr. Okoye requested visitation with Ms. Okoye take place only “once [the children]
feel comfortable * * *.”
{¶13} The wishes of the children. Upon being interviewed by the trial court, the
children requested to remain in the sole custody of Mr. Okoye.
{¶14} The children’s interaction and interrelationship with their parents, siblings,
and anyone else who may significantly affect their best interest. The trial court found that
both parents had a close relationship to the children prior to the divorce action. Ms. Okoye
testified that the children had contact with her mother and sister, but no relationship with Mr.
Okoye’s relatives. The trial court found that Ms. Okoye had minimal contact with the children
since the divorce action had been pending despite numerous attempts by the court to establish
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regular parenting time. The trial court noted the children had seen Ms. Okoye a total of fifteen
times from August 22, 2013, through June 17, 2015, and that during those visits they had called
their mother an “abuser” and confronted her about having Mr. Okoye arrested for domestic
violence. In an interview conducted by the trial court, one of the children stated his father had
not pushed his mother down, but that she had tripped over his brother. The children also
reported being hit with a wooden spoon “particularly when they were doing something good” or
for no reason at all. One child said his brother was hit with a frying pan, which the other brother
denied, saying his mother had only threatened to do so. The children also reported their mother
never wanted them, had wanted to kill them, and had poisoned their father.
{¶15} The trial court further found that one child reported that when he visited with Ms.
Okoye at a Chuck E. Cheese restaurant, he did not want to be with her, did not want to play
games with her, did not hug her, and did not draw a picture for her. These statements were
contrary to what was reported by the social worker who supervised the visit. The children told
the guardian ad litem that they did not wish to see their “so-called Mommy,” a term they did not
use when they first began to meet with the guardian. With regard to the children’s relationship
with Mr. Okoye, the guardian ad litem reported “a close and loving relationship * * *.” The trial
court found “that [Mr. Okoye] had a substantial ongoing negative influence on the children’s
perception of their mother since they [had] been in his exclusive care.”
{¶16} Mr. Okoye contends that the children “consistently expressed their mistrust and
fear of [Ms. Okoye] throughout the entire process.” Specifically, Mr. Okoye points to the
incident when Ms. Okoye spanked one of the children with a wooden spoon while the other child
attempted to stop her. Mr. Okoye also points to the children’s resistance to visiting with Ms.
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Okoye. He argues that “while the trial court squarely blames [his] behavior * * * [there was]
little significant evidence that [he] was influencing this reaction.”
{¶17} The children’s adjustment to home, school, and community. The children are
reportedly well-adjusted to school, and no concerns were raised as to their adjustment.
{¶18} The mental and physical health of all persons involved. Mr. Okoye contends
the trial court erred in questioning his mental health because the evidence does not support such
a conclusion. Because Mr. Okoye thus argues the trial court reached an incorrect factual
determination on this issue, we review the trial court’s factual findings under a manifest weight
of the evidence standard.
{¶19} With regard to the issue of mental health, the guardian ad litem reported: “I am
concerned about mental health issues as to both parties.” Specifically, it was noted that Ms.
Okoye lacked insight as to how her actions impacted her children. With regard to Mr. Okoye,
she wrote:
[Mr. Okoye] is almost pathologically committed to sabotaging the boys’
relationship with their [m]other. I believe that various authorities let the boys
down when the initial wooden spoon video was presented, together with other
issues. However, even if the Children Services Board had taken the children from
[Ms. Okoye] and had given them to [Mr. Okoye], [Ms. Okoye] would have been
visiting the children regularly for well over a year at this point. Likely they would
have been visiting unsupervised by now. Father has thwarted any progress in this
regard and I fear that this is a mental health issue in itself.
The Family Court Services Evaluator reported that there had “not been any mental health issues
reported * * * regarding [Ms. Okoye] or [Mr. Okoye].” She went on to note her concern
regarding Mr. Okoye’s “ongoing and willful stonewalling of [Ms. Okoye]’s relationship with the
children even though it has not been evaluated professionally.”
{¶20} The trial court stated it “believes that each party has some mental health issues
that are concerning to the court.” With regard to Ms. Okoye, the Court found there to be
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occasions that displayed a lack of empathy and awareness for her children’s feelings, but noted
that she had “taken numerous steps to improve her parenting ability” and had “seriously worked
to become a better parent.” With regard to Mr. Okoye, the trial court stated that it had “concerns
* * * about [Mr. Okoye]’s thought processes and what he shares with the children.” The trial
court pointed to Mr. Okoye’s testimony that he feared his wife and mother-in-law were
attempting to poison him, finding this testimony “not credible.” The trial court further stated:
The fact that [Mr. Okoye] has concocted this “poisoning theory” and shared it
with the children causes the court to question his overall mental health. The court
also agrees with the guardian ad litem’s statement that “Father is almost
pathologically committed to sabotaging the boys’ relationship with their Mother.”
The evidence presented at trial certainly supports this statement.
{¶21} Mr. Okoye contends that “[t]he trial court questioned [his] mental health, but the
evidence [did] not support this conclusion.” We note the trial court makes no concrete
determinations or diagnoses regarding Mr. Okoye or Ms. Okoye’s mental health; rather, it
expresses its concern for issues and behaviors that may fairly be considered as falling under the
category of mental health. The evidence as recited above supports this expression of concern.
We conclude the trial court did not clearly lose its way or create a manifest miscarriage of justice
in its factual determinations as to this factor.
{¶22} The parent more likely to honor and facilitate court-approved parenting time
rights. Mr. Okoye disputes the trial court’s findings that Ms. Okoye was “significantly more
likely to honor and facilitate parenting time” and that Mr. Okoye would “obstruct either directly
by himself or passively through the children any parenting time between [Ms. Okoye] and [the]
children.” He argues that these findings are inconsistent with the evidence. Once again, because
Mr. Okoye argues the trial court reached an incorrect factual determination, we review the trial
court’s factual findings under a “manifest weight of the evidence” standard.
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{¶23} In her report, the guardian ad litem stated that with regard to honoring and
facilitating court-approved parenting time, Ms. Okoye was “somewhat more preferable[.]” The
Family Court Services Evaluator reported:
Again, the evidence reveals that [Mr. Okoye] has consistently failed to facilitate
[Ms. Okoye]’s relationship despite court orders speaking to the contrary. He has
continually thwarted any positive and healthy relationship in any setting including
supervised and therapeutic visitation with a counseling professional. [Mr. Okoye]
indirectly through his actions indicates that he is going to do things his way, and
his way only, and as a result he has been successful at blocking [Ms. Okoye]’s
ability to have any meaningful contact with the children for nearly one full year at
this point.
With regard to the mother, she reported that Ms. Okoye had not “demonstrated any harsh or
disparaging behavior toward [Mr. Okoye] that would give rise to any concern that she would
interfere with [his] relationship with the children.” The trial court found that Ms. Okoye is
“significantly more likely to honor and facilitate parenting time” and that Mr. Okoye would
“obstruct either directly by himself or passively through the children any parenting time between
[Ms. Okoye] and [the] children.” (Emphasis sic.)
{¶24} A therapist working for Minority Behavioral Health Group testified that he did
not directly know of any specific “previous resistance” by Mr. Okoye regarding contact between
the children and Ms. Okoye. He testified that Mr. Okoye had missed approximately five
scheduled appointments with the children. The therapist went on to testify that “a lot of things
are postulated as it relates to Mr. Okoye possibly forcing the children not to participate, and, that,
I can’t speak on directly. I can say that his parental authority, I believe, could be exercised more
readily in spite of the children’s potential or alleged discomfort * * *.” When asked for his
professional opinion, the therapist testified the children “do appear to have some level of –
coercion as it relates to their ideas about their mother * * *.” The therapist also noted the
children’s resistance to attending sessions with him and stated that although Mr. Okoye “did
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encourage the boys to participate consistently, * * * in their refusal [he] had a sense * * * that
they were somehow coerced not to participate.”
{¶25} The visitation supervisor testified that at the first visitation session with the
children, “[t]hey were reluctant to come in[, and Mr. Okoye] was very good at encouraging
them, reassuring them, really helping me to get them in to that first visit. Again he was very
accommodating.” The visitation supervisor noted that Mr. Okoye encouraged the children at
other visits as well, and the children took part in those visits. During the tenth visit, however,
one of the children would not enter the restaurant and remained in the car with Mr. Okoye. The
visitation supervisor testified: “[T]he father had been very helpful up until this point. And once
the father was not taking on the role of being helpful to facilitate the visits I think [the child] felt
that and it encouraged him to not attend * * *.” She testified that “[a]t that point the father either
was unable or unwilling to bring the child [into the restaurant]. She further testified that once
Mr. Okoye “was no longer taking an active role then I believe [the child] sensed that and that’s
why he never visited again.”
{¶26} At the next scheduled visit, the children again refused to enter the restaurant and
would not exit the car. The visitation supervisor testified that Mr. Okoye “asked me to tell the
[c]ourt the boys do not want to visit” and that “the court needs to do something about the
situation.” At that point Mr. Okoye “stated his wife is an abuser” and the visitation supervisor
“terminated the conversation as it was not appropriate for the boys to hear * * *.” The
supervisor stated the children did not appear angry or upset and she believed that they realized
Mr. Okoye’s request for them to enter the restaurant was “perhaps a half-hearted directive.”
{¶27} At subsequent visits, the children refused to participate, with one child answering
for both children when asked to come into the restaurant. The visitation supervisor testified that
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Mr. Okoye continued to bring both children to the visitations, even though he had been advised
to only bring the child who was less resistant. She also testified that Mr. Okoye did “nothing to
quiet” the child who was “protest[ing] on behalf of his brother.”
{¶28} Although there is testimony to support the theory that Mr. Okoye had been
accommodating at certain times in encouraging visitation, there is substantial evidence, provided
by the same witnesses, suggesting that Mr. Okoye failed to facilitate, and even obstructed,
visitation of the children with Ms. Okoye. We conclude the trial court did not clearly lose its
way or create a manifest miscarriage of justice in its factual determinations as to the parent more
likely to honor and facilitate court-approved parenting time rights.
{¶29} Whether either parent had failed to make child support payments. No child
support was ordered.
{¶30} Whether either parent or any household member previously had been
convicted of or pleaded guilty to any criminal offense involving any act that resulted in a
child being an abused child or a neglected child. Mr. Okoye was found guilty of intentional
physical abuse-child, a second degree felony, in 1992, and was placed on two years’ probation.
The case did not involve the children at issue in the present case.
{¶31} With regard to Ms. Okoye, the guardian ad litem reported:
While it appears that the children have suffered from some abusive conduct by
[Ms. Okoye], this is not the same as a child being determined to be an abused
child. The boys expressed that [their m]other gave [one of them] urine to drink.
Their physician had seen marks of razor scars. He did not opine that this was
abuse per se, but it is concerning. There is videotape of [Ms. Okoye] completely
out of control, although not inflicting significant physical harm. Nonetheless, the
children remain significantly frightened of her lack of control.
The videotape in question shows Ms. Okoye spanking one of the children with a wooden spoon,
with the other child jumping on her back. There was also evidence that Ms. Okoye had pinched
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the children as a form of discipline. We note there had been speculation that the scarring may
have been a cultural custom, and the trial judge found that the drinking of urine was an attempt
to administer some type of folk remedy. Ms. Okoye met with a counselor from Minority
Behavioral Health Group on twenty occasions in order to discuss culturally based differences
between parenting in Nigeria as opposed to the United States. Ms. Okoye agreed she would
make the necessary adjustments as to the use of corporal punishment and other forms of
discipline.
{¶32} Whether one of the parents had continuously and willfully denied the other’s
right to parenting time. Mr. Okoye maintains “[t]here is no evidence of him ever preventing
the children from participating” in visitation with Ms. Okoye. In addition, he argues that “most
supervisors found him to be encouraging of the visit until such time as the children became
increasingly resistant.” Once again, because Mr. Okoye argues the trial court reached an
incorrect factual determination, we review the trial court’s factual findings under a manifest
weight of the evidence standard.
{¶33} The guardian ad litem reported:
At this point it appears that [Mr. Okoye]’s denial of parenting time is willful and
it certainly has been continuous. He has not been cooperative in attempting to
reestablish the boys’ relationship with their [m]other. I supported his initial
concern. However, the children will see her eventually and it would be better for
the children to have a good re-involvement rather than a bad one.
The Family Court Services Evaluator reported:
This evaluator * * * continues to remain concerned by what seems to be [Mr.
Okoye]’s ongoing and continuous willful efforts to thwart [Ms. Okoye]’s ability
to repair and reestablish her relationship with the children. This evaluator has had
an opportunity to view a video tape that seems to hinge together [Mr. Okoye]’s
position to stonewall [Ms. Okoye]’s ability to be involved with the children, and
while it was inappropriate discipline, it did not rise to the level based on this
evaluator’s professional experience to warrant [Mr. Okoye]’s apparent willful
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behavior. This evaluator is concerned that this video was contrived as a means to
an end by [Mr. Okoye].
{¶34} The trial court found that Mr. Okoye obstructed parenting time between Ms.
Okoye and the children throughout the pendency of the case. The trial court also found that Mr.
Okoye’s “abuse narrative continues to grow since the initial incident on August 8, 2013. The
children now report that [their mother] wants to kill them, that [she] poisoned their father and
that she is their ‘so called’ mother.” The trial court further found “that if it does not significantly
intervene [Ms. Okoye] will never see the children again nor have a relationship with them until
after they emancipate.”
{¶35} Although there was witness testimony to support Mr. Okoye’s contention that he
was initially accommodating as to the children’s visitation with Ms. Okoye, the same witnesses
also testified that Mr. Okoye became coercive and obstructive with regard to the children’s
relationship with their mother. We conclude the trial court did not clearly lose its way or create a
manifest miscarriage of justice in its factual determinations as to whether one of the parents had
continuously and willfully denied the other’s right to parenting time.
{¶36} Whether either parent has established a residence, or is planning to establish
a residence, outside Ohio. Neither Mr. Okoye nor Ms. Okoye indicated an intention to move
out of state.
{¶37} Having reviewed the trial court’s factual determinations questioned by Mr.
Okoye, and having concluded the trial court did not clearly lose its way or create a manifest
miscarriage of justice in those determinations, we turn now to the trial court’s consideration of
the factors listed under R.C. 3109.04(F)(1) in determining the best interest of the children for the
purposes of allocating parental rights and responsibilities. As noted above, the trial court
possesses broad discretion with respect to its determination, and we review the allocation of
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parental rights and responsibilities for an abuse of discretion. The trial court engaged in a
discussion of all relevant factors, giving particular attention to the children’s interactions with
their mother during the supervised visitations. Of particular concern to the trial court was
testimony that Mr. Okoye was engaging in obstructive and coercive behavior with regard to Ms.
Okoye’s relationship with the children. There was testimony that he willfully and continuously
denied parenting time, thereby preventing meaningful contact and blocking any progress towards
a positive and healthy relationship. There is also evidence he was disparaging of Ms. Okoye in
front of the children and negatively influenced their relationship with their mother.
{¶38} The factors are clearly not devoid of concern with regard to Ms. Okoye’s
parenting abilities, including evidence of her use of inappropriate corporal punishment on the
children. The trial court noted that Ms. Okoye “appear[ed] to be focused on becoming a better
parent” by “participat[ing] in individual counseling, parenting classes and domestic violence
classes * * *.” Specifically, the trial court’s journal entry provides:
[Ms. Okoye] has however taken numerous steps to improve her parenting ability.
She saw a psychiatrist at the University of Akron for three months. She took the
Stop the Cycle Program at the Battered Women’s Shelter in October 2014. She
started weekly counseling sessions with Curtis Williams, LSW[,] commencing
October 2014. She took parenting classes at Greenleaf Family Center for eight
weeks. She completed this program on March 3, 2015. The court finds that [Ms.
Okoye] has seriously worked to become a better parent.
Although there is evidence that the children had developed a fear and mistrust of their mother,
there was substantial evidence of Mr. Okoye’s influence on the relationship. And although Mr.
Okoye testified that Ms. Okoye had attempted to poison him, the trial court did not find the
testimony to be credible.
{¶39} Having considered the factors listed under R.C. 3109.04(F)(1), we conclude the
trial court’s decision to allocate parental rights and responsibilities primarily to Ms. Okoye was
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not unreasonable, arbitrary, or unconscionable. The trial court therefore did not abuse its
discretion.
{¶40} Mr. Okoye’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
ALTERNATIVELY, THE TRIAL COURT ERRED IN GRANTING ONLY
SUPERVISED VISITATION TO DEFENDANT FATHER CONTRARY TO
THE EVIDENCE AND THE PROVISIONS OF [R.C.] 3109.04.
{¶41} In his second assignment of error, Mr. Okoye argues the trial court erred in
granting only supervised visitation to him, and contends that decision is contrary to the evidence
and the provisions of R.C. 3109.04. We disagree.
{¶42} “The standard of review for matters concerning * * * visitation rights is whether
an ‘abuse of discretion’ was committed.” Shannon v. Shannon, 122 Ohio App. 3d 346, 350 (9th
Dist.1997). An abuse of discretion means more than an error of law or judgment; it implies that
the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219 (1983). When applying the abuse of discretion standard, a
reviewing court is precluded from simply substituting its own judgment for that of the trial court.
Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621 (1993).
{¶43} In its decree of divorce, the trial court found that based upon all of the evidence
presented: “Allocation of sole parental rights and responsibilities of the minor children to [Ms.
Okoye] is in the best interest of the children. * * * [Mr. Okoye] is granted supervised visitation
* * * one time per week on the weekend for two hours commencing April 6, 2016. This
parenting time is presently in the best interest of the children.”
{¶44} The trial court noted the recommendations of the guardian ad litem and the family
court services evaluator as set forth below.
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The guardian ad litem recommended as follows, to wit:
a. I recommend that this Court refer this case to Juvenile Court based on
Father’s medical neglect and Mother’s abusive conduct.
b. I recommend that the children could be placed in an appropriate foster setting,
where the children can be regularly engaged in counseling to reinstate their
relationship with Mother.
c. I recommend that Father and Mother have supervised parenting time so that
Father cannot undue the progress the children will make with their therapist
and Mother will be subject to correction for her lack of insight into the
children’s feelings.
d. I recommend that child support be direct to Children Services Board for
support of children.
Alissa Endicott, the Family Court Services Evaluator, recommended as follows,
to wit:
a. This evaluator recommends that Mother be immediately designated the legal
custodian and residential parent of the children. Father shall exercise
supervised visitation at Common Ground after at least 30 Days of no contact
with the children once custody is granted to Mother.
b. Mother shall remain in counseling at Minority Behavioral Health, and follow
through with all recommendations, until Mr. Williams initiates the subject of
termination.
c. Mother should complete parenting classes at Greenleaf.
d. Father shall engage in individual counseling and follow though [with] all
recommendations of the counselor and should also initiate involvement in
parenting classes.
{¶45} Mr. Okoye contends that because the wishes of the minor children to stay with
their father “were in contradiction” with the recommendation of the guardian ad litem, there
should have been an appointment of counsel for the children. Mr. Okoye further contends that
because the children’s relationship with him was “strong,” to “sever that relationship so abruptly
and to limit the contact between the children and their father so severely was extreme as to
constitute an abuse of discretion.”
{¶46} Mr. Okoye states that the only rationale the trial court relied upon in support of its
restrictive limitation on visitation was its finding that he was uncooperative in the visitation
process. He further contends there were far less restrictive alternatives that could have
17
adequately addressed the trial court’s concerns, and that the restriction is a “punitive reaction”
based upon “the perspective that [he] had orchestrated the failure of [Ms. Okoye] to reconnect
with the minor children.”
{¶47} We note that in his second assignment of error, Mr. Okoye acknowledges that
“much of the analysis in the above section [i.e., Assignment of Error One] applies.” We will not
repeat our discussion of the factors provided under R.C. 3109.04, and reiterate our conclusion
that the trial court did not abuse its discretion in its consideration of those factors to determine
the best interests of the children.
{¶48} Mr. Okoye provides us with no law in support of his assertion that the trial court
should have appointed counsel for the children. We note that the case In re Williams, referenced
in Ms. Okoye’s brief, held “that pursuant to R.C. 2151.352, as clarified by Juv.R. 4(A) and
Juv.R. 2(Y), a child who is the subject of a juvenile court proceeding to terminate parental rights
is a party to that proceeding and, therefore, is entitled to independent counsel in certain
circumstances.” In re Williams, 101 Ohio St. 3d 398, 2004-Ohio-1500, ¶ 29. We decline to
expand its holding beyond its stated parameters.
{¶49} While we recognize the restrictions placed upon Mr. Okoye’s visitation with his
children are impactful, we cannot say the trial court’s decision was unreasonable, arbitrary, or
unconscionable. We conclude the trial court did not err in granting only supervised visitation to
Mr. Okoye.
{¶50} Mr. Okoye’s second assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT ERRED IN AWARDING SPOUSAL SUPPORT OF
$1,254 PER MONTH FOR A PERIOD OF 37 MONTHS CONTRARY TO THE
PROVISIONS OF [R.C.] 3105.18.
18
{¶51} In his third assignment of error, Mr. Okoye argues that the trial court erred in
awarding spousal support in the amount of $1,254.00 per month, for a period of 37 months,
contrary to the provisions of R.C. 3105.18. We disagree.
{¶52} We review a trial court’s decision regarding spousal support for an abuse of
discretion. Barney v. Barney, 9th Dist. Summit No. 26855, 2013–Ohio–5407, ¶ 11, quoting
Tufts v. Tufts, 9th Dist. Summit No. 24871, 2010–Ohio–641, ¶ 7. An abuse of discretion implies
the court’s decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219 (1983). When applying this standard, a reviewing court is precluded from
simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66
Ohio St .3d 619, 621 (1993).
{¶53} In this assignment of error, Mr. Okoye lists the factor provided for by R.C.
3105.18, but provides little in the way of argument to support his assertion that the trial court
erred in awarding spousal support, nor does he cite to the applicable standard of review as
required by Loc.R. 7(B)(7). Mr. Okoye also fails to provide us with a theory as to why the
award is contrary to the provisions of R.C. 3105.18 as he contends, nor does he allege that the
court failed to consider the factors listed under R.C. 3105.18.
{¶54} Mr. Okoye notes that Ms. Okoye earned $15,071.77 in 2014, and states: “To
consider [Ms. Okoye]’s actual income level from 2014 suggest that she is not capable of full-
time employment in any capacity, let alone at a capacity consummate with a person who has
earned multiple degrees.” He then suggests that the trial court was allowed to consider imputed
income in calculating a support obligation. Mr. Okoye also states that his financial burden in
paying for out-of-pocket expenses as they relate to supervised visitation should have been
considered in determining an equitable award of support.
19
{¶55} Mr. Okoye goes on to contend that “the clear goal of the trial court was to achieve
income equalization,” and asserts that the equalization of income is not expressly mandated by
the Ohio Revised Code and that an award of spousal support does not have to provide a
beneficiary with a standard of living equivalent to that established during the marriage. He
suggests that because Mr. Okoye had established his standard of living prior to the couples’
marriage in 2001, “[t]he result of pure income equalization provides a benefit to [Ms. Okoye]
based on circumstances that predated the marriage.” Finally, Mr. Okoye states: “Income
equalization also fails to account for the fact that [Ms. Okoye] has a greater financial upside as
discussed previously,” an argument that again goes to his theory of imputed income.
{¶56} “Unlike the child support statute, the spousal support statute does not direct the
court to consider the ‘potential income’ of a spouse when considering the ‘income of the parties,
from all sources.’” Collins v. Collins, 9th Dist. Wayne No. 10CA0004, 2011–Ohio–2087, ¶ 16,
quoting R.C. 3119.01(C)(5). “Instead, the court is directed to examine the relative earning
ability of each party. The end result is not to arrive at a specific figure so as to ‘impute’ income;
rather, the end result is to consider and weigh the spouses’ relative earning abilities along with
the other factors in arriving at reasonable spousal support both as to amount and term.” Id. at ¶
19.
{¶57} Although R.C. 3105.18 does not mandate income equalization or require an award
that provides the parties with an equal standard of living, neither does it prohibit such an award.
See Stickney v. Stickney, 9th Dist. Medina No. 14CA0099-M, 2016-Ohio-3379, ¶ 27 (stating that
nothing in R.C. 3105.18 mandates that the trial court award a spouse equal income). Moreover,
R.C. 3105.18(C)(1)(g) does require the trial court to consider “[t]he standard of living of the
parties established during the marriage * * *.”
20
{¶58} In the decree of divorce, the trial court states that it has considered all of the
statutory factors under R.C. 3105.18, which includes a consideration of the relative earning
abilities of the parties and the standard of living established during the marriage. The award of
spousal support is further modifiable upon a showing of substantial change of circumstances by
either party. As we have noted, Mr. Okoye does not allege the trial court failed to consider the
statutory factors. The trial court was not required to impute income to Ms. Okoye, nor was it
prohibited from providing the parties with an equal standard of living. We conclude the trial
court did not abuse its discretion in awarding spousal support in the amount of $1,254.00 per
month, for a period of 37 months.
{¶59} Mr. Okoye’s third assignment of error is overruled.
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT ERRED IN FINDING [] THE BALANCE OF
DEFENDANT’S AMERIPRISE ACCOUNT TO BE MARITAL PROPERTY
OR ALTERNATIVELY, THAT THE FUNDS OWED TO ADTU ARE A
MARITAL DEBT.
{¶60} In his fourth assignment of error, Mr. Okoye argues the trial court erred in finding
the balance of the Ameriprise account to be marital property and argues that the funds owed to
ADTU should be considered a marital debt. We disagree.
{¶61} “R.C. 3105.171(B) provides that, in a divorce proceeding, the trial court must
classify the parties’ property as either marital property or separate property, after which it must
divide the property equitably.” Fetzer v. Fetzer, 9th Dist. Wayne No. 12CA0036, 2014–Ohio–
747, ¶ 22. Marital property includes all real and personal property owned by the parties that was
acquired by either or both of them during the marriage. R.C. 3105.171(A)(3)(a)(i). Whether
property is marital or separate “is a question of fact that this Court reviews under a civil manifest
21
weight standard.” Fetzer at ¶ 21, quoting Hahn v. Hahn, 9th Dist. Medina No. 11CA0064–M,
2012–Ohio–2001, ¶ 20.
{¶62} “[B]efore an appellate court will reverse a judgment as against the manifest
weight of the evidence in a civil context, the court must determine whether the trier of fact, in
resolving evidentiary conflicts and making credibility determinations, clearly lost its way and
created a manifest miscarriage of justice. Only in the exceptional case, where the evidence
presented weighs heavily in favor of the party seeking reversal, will the appellate court reverse.”
Boreman v. Boreman, 9th Dist. Wayne No. 01CA0034, 2002–Ohio–2320, ¶ 10. Manifest weight
of the evidence pertains to the burden of persuasion. Eastley v. Volkman, 132 Ohio St. 3d 328,
2012–Ohio–2179, ¶ 19. “In weighing the evidence, the court of appeals must always be mindful
of the presumption in favor of the finder of fact.” Id. 132 at ¶ 21.
{¶63} The trial court found there was financial misconduct by Mr. Okoye both before
and after the filing of the case. The court noted that on October 1, 2012, Mr. Okoye’s 401(k)
account had a balance of $224,305.78, and that by December 31, 2012, he has transferred all but
$21,920.30 to an Ameriprise account in his name only. The court further noted that Mr. Okoye
did not list the account on his affidavit that was required to be filed at the initiation of the case.
The trial court found that Mr. Okoye withdrew $70,530.00 from the Ameriprise account in
violation of the mutual restraining orders of the trial court, and that Ms. Okoye had no
knowledge of either the account or the withdrawals. The trial court further found:
The Ameriprise account in [Mr. Okoye]’s name had a balance of $175,236.39 at
trial. Defendant argued that this balance was not his but belonged to a Nigerian
organization called ADTU. This court did not find defendant’s testimony
credible. The entire remaining balance of the Ameriprise account is marital
property.
22
The trial court denied Mr. Okoye’s request “that an ADTU debt in the amount of $168,850
should be paid from the Ameriprise Account,” and found that the debt was not proven by a
preponderance of the evidence to be marital debt.
{¶64} Mr. Okoye argues that the funds in the Ameriprise account were not marital
property because he had previously pledged these funds to ADTU in consideration for loans he
had previously received for medical expenses and for the adoption of the minor children. He
also contends that the finding by the trial court that the debt was not proven by a preponderance
of the evidence to be marital debt is inconsistent with the evidence presented.
{¶65} Although Mr. Okoye offered his own testimony as to the existence of a debt to
ADTU, the trial court specifically found this testimony to be not credible. This Court recognizes
that “the trier of fact is in the best position to determine the credibility of witnesses and evaluate
their testimony accordingly.” State v. Johnson, 9th Dist. Summit No. 25161, 2010–Ohio–3296,
¶ 15. The trier of fact is free to believe all, part, or none of the testimony of a witness. State v.
Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 24. “The mere fact that testimony is
uncontroverted does not necessarily require [a court] to accept the evidence if [it] found that the
testimony was not credible.” Bradley v. Cage, 9th Dist. Summit No. 20713, 2002 Ohio App.
LEXIS 790, *4 (Feb. 27, 2002). “The trier of facts always has the duty, in the first instance, to
weigh the evidence presented, and has the right to accept or reject it.” Ace Steel Baling, Inc. v.
Porterfield, 19 Ohio St. 2d 137, 138 (1969). Because the trial court “[a]s the trier of fact is in the
best position to assess matters of credibility, this Court is loath to disturb those determinations on
appeal.” Wiseman v. Wiseman, 9th Dist. Medina No. 13CA0009–M, 2014–Ohio–2002, ¶ 28.
{¶66} Accordingly, we conclude that the trial court did not lose its way or create a
manifest miscarriage of justice when it found (1) Mr. Okoye’s testimony was not credible as to a
23
debt owed to ADTU; (2) the balance of Mr. Okoye’s Ameriprise account to be marital property,
and (3) the funds owed to ADTU were not proven to be a marital debt. We therefore cannot say
that the trial court’s finding was against the manifest weight of the evidence. Mr. Okoye’s fourth
assignment of error is overruled.
III.
{¶67} Mr. Okoye’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas Domestic Relations Division is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
24
CALLAHAN, J.
CONCURS.
CARR, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶68} I write separately to express my concern that the trial court did not follow the
recommendation of the children’s guardian ad litem to refer this case to juvenile court and/or
Summit County Children Services Board because both parents had exhibited wholly
inappropriate behavior around these children. The mental health and fitness of both parents was
called into question by the guardian ad litem, who was trained and duty-bound to represent the
children’s best interest in a neutral and detached manner. See Sup.R. 48. Even the trial judge
noted concern about both parents’ inappropriate behavior and potential mental health issues.
{¶69} The domestic relations court is best suited to resolve custody disputes involving at
least one presumptively-fit parent. The fitness of both parents was reasonably called into
question in this case. Intervention by a children services agency and the juvenile court, if
deemed to have been warranted, would have provided procedural protections to safeguard the
best interest of these children and the fundamental rights of both parents to raise them. See, e.g.,
In re S.N., 9th Dist. Summit No. 23571, 2007-Ohio-2196, ¶ 25. Neither parent would have had
the ability to potentially abuse the children and/or to prevent them from having regular
interaction with their other parent. Instead, through a case plan designed to address the specific
needs of the family members, these parents likely would have had the opportunity to have at
least supervised visitation with their children on a regular basis to maintain the parent-child
bond. See R.C. 2151.412. Moreover, the ongoing interaction between the parents and children
would have been facilitated and regularly monitored by an assigned caseworker. Necessary
25
counseling and other reunification services also would have been offered, which may have
prevented some of the inappropriate behavior by these parents and potential emotional damage to
these two children.
APPEARANCES:
ROBERT C. ALDRIDGE, Attorney at Law, for Appellant.
TODD ANTHONY MAZZOLA and SARAH E. HEID, Attorneys at Law, for Appellee.