Buskirk v. Buskirk , 2023 Ohio 70 ( 2023 )

[Cite as Buskirk v. Buskirk, 2023-Ohio-70.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
AUDREY BUSKIRK, :
Plaintiff-Appellee, :
No. 111399
v. :
ERIK K. BUSKIRK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 12, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-19-379187
Appearances:
Alan H. Kraus, for appellee.
Erik K. Buskirk, pro se.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Erik K. Buskirk (“Husband”), pro se, appeals
from the trial court’s judgment granting a divorce to him and Audrey Buskirk
(“Wife”). We affirm.
I. Background
On November 12, 2019, Wife filed her complaint for divorce from
Husband. Trial commenced in January 2022.
Prior to trial, the parties stipulated that (1) they were married on July
4, 2009, in Louisiana; (2) there were two minor children born of the marriage; (3)
the parties had lived separate and apart for more than one year; (4) the appraisal of
the marital home prepared by James P. Rosenblatt (Wife’s exhibit No. 28) was
authenticated and admissible as evidence; and (5) the financial records identified in
Wife’s exhibit list were authentic and did not require a custodian of records.
Husband offered no documentary evidence at trial. Wife’s 28
exhibits, which included the parties’ 2018, 2019, and 2020 joint tax returns, the real
estate appraisal for the marital home, various credit card statements, 401(k) account
statements, and the parties’ financial disclosure statements with affidavits, were
admitted into evidence.
Both Husband and Wife testified at trial that the marital residence
located on Traynham Road in Shaker Heights was acquired during the marriage
with marital funds. Neither party claimed in testimony nor in their financial
disclosure statements that any portion of the home was premarital or separate
property. Wife testified that Husband had sole possession of the home after she
moved out on July 17, 2019, and Husband testified that he made the mortgage
payments after Wife moved out. Wife’s exhibit Nos. 16 and 28 demonstrated that
the home was appraised at $240,000 as of July 21, 2021, and there was an
outstanding mortgage of $137,507.36 on the home as of November 11, 2021.
The trial court’s judgment entry of divorce found that the parties had
entered into an agreed judgment entry regarding shared parenting. Accordingly, the
trial court ordered that the parties share the rights and responsibilities for the care
of the children in accordance with the approved shared parenting plan. The trial
court further found that the fees and expenses for the guardian ad litem appointed
to the case for the children totaled $3,960. The trial court found that Wife had
posted a $750 bond as payment for the guardian ad litem fees and made additional
payments of $435 and that Husband had posted the initial bond of $750 but not
made any additional payments. Accordingly, the trial court ordered Wife to pay an
additional $795 to the guardian ad litem and Husband to pay $1,230.
With respect to the division of marital property, the court found that
the parties had divided their household goods and furniture when Wife left the
marital home. The trial court ordered that although Husband made an estimated
30 payments toward the mortgage and paid all expenses associated with the home
after Wife left the residence, the home was to be sold and the proceeds divided
equally between the parties. The court ordered that Wife’s Kia Sorento was her
separate property and Husband’s 2014 Cadillac XTS was his separate property.
With respect to the parties’ outstanding debt, the trial court found
that
[Wife] testified at trial that the parties had significant marital credit
card debt at the time of separation, around $28,000. [Wife] further
testified that she attempted to divide that marital debt as equally as
possible and took between $15,000 and $16,o00 of marital credit card
debt with her upon separation. [Wife] testified that the Chase Visa
Amazon account had a zero balance on the date of her exodus from the
marital home. [Wife] testified that the Chase Southwest card was
opened during the marriage for purposes of managing marital finances.
The Court found [Wife’s] testimony to be credible.
[Wife] presented testimony that she was unaware of the KeyBank line
of credit that was opened during the marriage. [Wife] testified that
[Husband] advised her this money was for his attorney fees incurred
during the domestic violence charge from 2018. The Court finds that
[Wife] was the victim of [Husband’s] 2018 domestic violence charge.
[Husband] testified that only about $3,000 went toward attorney fees.
[Husband testified that the other money was used for marital living
expenses but was unable to testify as to what marital expenses, or how
the money was spent. The Court finds [Wife’s] testimony regarding this
account to be credible. The Court finds that [Husband] lacked candor
in his testimony and failed to present evidence supporting his claims.
[Husband] presented no exhibits or evidence at trial as to his current
financial position, current credit card indebtedness, or savings or
assets. Testimony from [Husband] at trial as to the finances was
dubious. [Wife’s] testimony was consistent with exhibits presented
and was found to be credible.
The trial court ordered that Wife would retain her Capital One credit
card ending in 4766 with a $0 balance as of January 26, 2022, and her KeyBank
Mastercard account ending in 1086 with a balance of $5,530.48 as of June 15, 2021.
The court ordered that Husband would retain his Chase Visa Amazon account
ending in 4299 with a balance of $6,500 as of January 24, 2022; his Chase
Southwest account ending in 8424 with a balance of $3,690.57 as of August 10,
2019; his Wells Fargo account ending in 8307 with a balance of $7,000 as of January
24, 2022; and his American Express account with an unknown account number and
a balance of $500 as of January 24, 2022. In addition, the court ordered that
Husband would retain the KeyBank line of credit account ending in 2027 with a
balance of $8,006.19 as of February 7, 2019, his Navient student loan debt of
$150,000 (which Husband testified was acquired prior to the marriage), and any
other credit cards or lines of credit in his name.
The court found that the parties had four retirement accounts and
ordered that the marital portion of each account was to be divided equally between
Husband and Wife.
Finally, the court found, after considering the requirements of
R.C. 3105.171(E), that although the property division was not equal, it was equitable
because (1) Husband admitted at trial that he had liquidated a 401(k) account with
a balance of $23,650 as of June 3, 2021, in direct violation of the court’s mutual
restraining order and without consulting with Wife;1 and (2) Husband testified that
he borrowed on the KeyBank line-of-credit account to pay for expenses associated
with his 2018 domestic violence case in Shaker Heights Municipal Court, and such
debt was not marital debt despite Husband’s testimony that it was Wife’s fault that
he had been charged with domestic violence. This appeal followed.
1 R.C. 3105.171(E)(4) states that “[i]f a spouse has engaged in financial misconduct,
including * * * the dissipation * * * of assets, the court may compensate the offended
spouse with a distributive award or with a greater amount of marital property.”
II. Law and Analysis
A. Division of Marital Debt and Assets
In his first assignment of error, Husband contends that the trial court
erred “in assigning 90% of the marital debt to [him] even though both parties are
50/50 financial partners.” Husband takes issue with the trial court’s determination
that the debt on certain credit cards was marital debt rather than Wife’s personal
debt. He also contends that “all the cards in default were assigned to him” and “all
the bad debt [was] placed on [him] so that he cannot refinance his children’s home,
and [Wife] can take the kids to Texas.” (Husband’s brief, p. 12). In his second
assignment of error, Husband contends that the trial court erred in designating
premarital funds in one of the retirement accounts (the AIG Rollover IRA account)
as marital property.
R.C. 3105.171(C)(1) mandates an equal division of marital property,
but if an equal division is inequitable, the court must divide the marital property
equitably. Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, 791 N.E.2d 434,
¶ 5. We review a trial court’s division of marital property for an abuse of discretion.
Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989). We likewise review
a trial court’s division of debt under an abuse of discretion standard. Trolli v. Trolli,
8th Dist. Cuyahoga No. 101980, 2015-Ohio-4487, ¶ 32. An abuse of discretion
occurs when the court’s decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
When distributing property in a divorce proceeding, the trial court
must first determine what constitutes marital property and what constitutes
separate property. Comella v. Comella, 8th Dist. Cuyahoga No. 90969, 2008-Ohio-
6673, ¶ 38, citing R.C. 3105.171(B). The determination of whether property is
marital or separate is a mixed question of law and fact that will not be reversed
unless it is against the manifest weight of the evidence. Kobal v. Kobal, 2018-Ohio-
1755, 111 N.E.3d 804, ¶ 27 (8th Dist.). Once the characterization of the property is
made, the reviewing court will not disturb the trial court’s distribution of the
property absent an abuse of discretion. Id.; Williams v. Williams, 8th Dist.
Cuyahoga No. 95346, 2011-Ohio-939, ¶ 8.
Property currently owned by either or both of the spouses and
property acquired during a marriage is generally presumed to be marital property
unless it can be shown to be separate. Herrera v. Phil Wha Chung, 8th Dist.
Cuyahoga No. 109793, 2021-Ohio-1728, ¶ 38, citing Johnson v. Mills, 8th Dist.
Cuyahoga No. 102241, 2015-Ohio-4273, ¶ 18. Separate property includes “any real
or personal property or interest in real or personal property that was acquired by
one spouse prior to the date of the marriage.” Trolli at ¶ 33, citing R.C.
3105.171(A)(6)(a)(ii). “‘Marital debt has been defined as any debt incurred during
the marriage for the joint benefit of the parties or for a valid marital purpose.’” Id.,quoting Lucas v. Lucas, 7th Dist. Noble No. 382, 2011-Ohio-6411, ¶ 33.
We find no abuse of discretion in the trial court’s allocation of the
parties’ debt between Husband and Wife. The trial court found that Husband
presented no exhibits or evidence at trial as to his current financial position, current
credit card indebtedness, or savings or assets; all of the evidence came from Wife’s
exhibits and testimony. The trial court also found that Husband “lacked candor in
his testimony” and his testimony at trial about the parties’ finances was “dubious.”
It is for the trial court to resolve disputes of fact and weigh the credibility of the
witnesses. Pruitt v. Pruitt, 8th Dist. Cuyahoga No. 84335, 2005-Ohio-4424, ¶ 32,
citing Bechtol v. Bechtol, 49 Ohio St.3d 21, 23, 550 N.E.2d 178 (1990).
Our review of the record gives us no reason to overrule the court’s
factual or credibility determinations. There was ample competent, credible evidence
to support the trial court’s allocation of the parties’ debt. In light of Husband’s lack
of candor, and the trial court’s finding that Wife’s testimony was credible and
consistent with the exhibits presented, we find no abuse of discretion in the trial
court’s allocation.
Furthermore, there is no support in the record for Husband’s claim
that he was assigned 90 percent of the debt or that he was assigned all “the bad debt
so that he cannot refinance his children’s home and [Wife] can take the kids to
Texas.” Husband offered no evidence whatsoever at trial regarding his inability to
refinance the mortgage on the marital home in light of his outstanding debt nor
about Wife’s alleged intention to take the children to Texas.
With respect to the retirement accounts, the trial court likewise did
not abuse its discretion in ordering that the marital portion of the parties’ retirement
accounts was to be divided equally between the parties. Husband contends that the
trial court’s order was erroneous because the funds in the AIG Rollover IRA account
are “100 percent premarital retirement funds” earned through his employment prior
to the marriage.
It is well settled that the party contending that an asset is separate
property has the burden of proving that claim by a preponderance of the evidence.
Trolli, 8th Dist. Cuyahoga No. 101980, 2015-Ohio-4487 at ¶ 33, citing Hall v. Hall,
2d Dist. Greene No. 2013 CA 15, 2013-Ohio-3758, ¶ 14. “Oral testimony as evidence,
without corroboration, may or may not satisfy the burden.” Maloney v. Maloney,
160 Ohio App.3d 209, 2005-Ohio-1368, 826 N.E.2d 864, ¶ 23 (2d Dist.). We find
no abuse of discretion in the trial court’s equal allocation of the retirement funds
because Husband did not meet his burden of proof in demonstrating that the AIG
Rollover IRA account was his separate property.
Initially, we note that Husband made no claim of separate property
in his Financial Disclosure Statement filed with the court prior to trial. In fact, under
Section D of the statement, which provides an opportunity to list “separate property
claims as defined in Ohio Revised Code 3105.17(A)(6)(a),” including “property
owned before marriage,” Husband affirmatively stated he had “$0.00” in separate
property claims. Husband’s accompanying affidavit averred that the information
set forth in Disclosure Statement was “true, complete, and accurate.”
At trial, Wife testified that Husband had an account with the
Louisiana Teachers’ Union prior to the parties’ marriage in 2009 but that she did
not know the amount Husband contributed to the AIG Rollover IRA account prior
to the marriage. Husband testified that some unspecified amount of the account
was premarital, the account was rolled over several times during the marriage, and
the parties withdrew funds from the account during the marriage.
The comingling of separate property with other property does not
destroy the identity of separate property as separate property except when the
separate property is not traceable. Maloney, 160 Ohio App.3d 209, 2005-Ohio-
1368, 826 N.E.2d 864, at ¶ 21, citing R.C. 3105.171(A)(6)(b). A party who claims
that property is traceable to his separate property has, as with any separate property
claim, the burden of proving traceability by a preponderance of the evidence. Id. at
¶ 23.
Our review of the record demonstrates that Husband offered no
testimony and provided no exhibits regarding what, if any, portion of the AIG
Rollover IRA account was premarital in nature. Likewise, although he testified that
some monies were withdrawn from the account during the marriage, Husband did
not specify how much was removed from the account.
Accordingly, we find no abuse of discretion in the trial court’s finding
that “[Husband] failed to provide any testimony or exhibits that ascertain what
portion [of the AIG Rollover IRA] was premarital in nature.” Because Husband did
not meet his burden of demonstrating by a preponderance of the evidence that any
portion of the AIG Rollover IRA was separate property, the trial court did not abuse
its discretion in dividing the account equally between the parties.
To summarize, we find no abuse of discretion in the trial court’s
allocation of debt between Husband and Wife nor in its order that the marital
portion of the retirement accounts, including the AIG Rollover IRA, be divided
equally between the parties. The first and second assignments of error are therefore
overruled.
B. Child Support Order
In his third assignment of error, Husband contends that the trial
court erred in ordering that he pay Wife $1,048.96 monthly child support.
A trial court has broad discretion to calculate child support and,
absent an abuse of discretion, an appellate court will not disturb a child support
order. Pauly v. Pauly, 80 Ohio St.3d 386, 390, 686 N.E.2d 1008 (1997). Challenges
to factual determinations upon which the child support order is based are reviewed
using the “some competent credible evidence” standard. Jajola v. Jajola, 8th Dist.
Cuyahoga No. 83141, 2004-Ohio-370, ¶ 8.
Husband first contends that the child support computation
worksheet relied upon by the court to calculate child support was incorrect because
it calculated Wife’s annual income using an average of her last three years’ earnings
but used only one year of his annual salary to calculate his salary. We see no error.
Wife testified at trial that her annual wages are $64,000 and Husband testified that
his annual salary was $100,000, both of which were used on the child support
computation worksheet as Wife’s and Husband’s annual incomes. We see nothing
to indicate that Wife’s annual wages were calculated using a three-year average
wage.
Husband also complains that the trial court’s child support order was
an abuse of discretion because he (1) lost his job making $100,000 a year and now
works at only a minimum wage job; (2) is behind on paying his electric, gas, and
water bills; (3) takes care of the children 60 percent of the time; and (4) pays 100
percent of the fees for his children’s extracurricular activities. Again, we find no
abuse of discretion in the trial court’s order. Husband was employed at the time of
the divorce, earning $100,000 per year. The trial court’s support order was
calculated based on Husband and Wife’s earnings at that time, which they both
testified to at trial. Accordingly, there was competent, credible evidence to support
the trial court’s order. Furthermore, there was no testimony whatsoever from either
Husband or Wife at trial regarding the children’s extracurricular activities or
associated fees for those activities and, accordingly, there is nothing in the record to
support Husband’s assertion that the children are engaged in extracurricular
activities and that he pays 100 percent of the cost for the children’s activities. The
third assignment of error is overruled.2
2 With respect to Husband’s assertion that he is
now employed at a minimum wage
job and no longer makes $100,000 per year, we note that a trial court that enters a decree
for child support has continuing jurisdiction over matters relating to child support and
can modify its order as the parties’ changing circumstances require. Schumann v.
Schumann, 190 Ohio App.3d 824, 2010-Ohio-5472, 944 N.E.2d 705, ¶ 31 (8th Dist.). In
order to justify the modification of an existing support order, the moving party must
demonstrate a substantial change of circumstances that renders unreasonable an order
that once was reasonable. Id. at ¶ 25.
C. Special Expenses for the Daughter
In his fourth assignment of error, Husband contends that the trial
court’s child support order was an abuse of discretion because the court did not
consider the costs and expenses paid by Husband for the parties’ daughter to play in
the U.S. Kids Golf Tour. Husband contends that the court was “made fully aware”
that the daughter played golf and that he had paid over $30,000 in expenses and
fees for her golf over the last three years. Husband contends that the daughter will
no longer be able to play in the Kids Tour because, due to the child support order,
he can no longer afford to pay the fees and expenses.
There is nothing in the record to support Husband’s argument. There
was no testimony whatsoever at trial demonstrating that the daughter played golf or
that Husband paid expenses and fees associated with her golfing activity.
Furthermore, despite Husband’s assertion to this court that the trial court was
“made fully aware” of his receipts showing expenses of over $30,000 for the
daughter’s golf, no such documentary evidence or receipts were introduced at trial.
The trial court did not abuse its discretion in not considering evidence that was never
presented, and the fourth assignment of error is overruled.
D. Sale of the Marital Home
In his fifth assignment of error, Husband contends that the trial court
abused its discretion in ordering that the marital home be sold because bankruptcy
law requires that a home not be sold during bankruptcy proceedings. We find no
abuse of discretion in the trial court’s order. There was no evidence whatsoever at
trial that either party had filed or was even contemplating filing for bankruptcy.
Thus, the trial court did not erroneously order that the house be sold during the
pendency of a bankruptcy proceeding. The fifth assignment of error is overruled.
E. The Value of the Marital Home
Husband next contends that the trial court erred in determining the
value of the marital home because the trial court did not consider that he made the
mortgage payments and paid all expenses associated with the home after Wife
moved out in 2019.
The value of the home was determined by the appraisal completed by
James P. Rosenblatt (Wife’s exhibit No. 28), to which Husband stipulated. Rather
than disputing the value of the home, Husband apparently disagrees with the trial
court’s judgment that the home should be sold and the proceeds divided equally
between the parties.
Despite Husband’s assertion that the sale order was an abuse of
discretion because the trial court did not consider that he made the mortgage
payments after Wife moved out, the trial court’s judgment entry reflects that the
court did indeed consider Husband’s mortgage payments. Specifically, the trial
court stated that “[s]ince July 2019, [Husband] has lived in the marital home and
paid all expenses associated with the marital home.” Nevertheless, the court found
that “although [Husband] made an estimated thirty (30) payments towards the
mortgage of the home since [Wife] departed from the residence, the proceeds of the
sale of the home shall be split evenly between the parties.” We find no abuse of
discretion in the court’s order.
Husband’s argument ignores the fact that the court ordered the net
proceeds of the sale to be divided equally between the parties. Additionally, the
court specifically found that its division of the parties’ property, although not equal,
was equitable in light of Husband’s liquidation during the divorce proceedings of an
IRA account with a balance of over $23,000, in direct violation of the trial court’s
restraining order, and the $8,000 of debt Husband incurred in 2018 related to his
domestic violence charge involving Wife. A trial court has broad discretion in a
divorce proceeding to fashion an award that compensates a spouse for the financial
misconduct of the other spouse. Trolli, 8th Dist. Cuyahoga No. 101980, 2015-Ohio-
4487, at ¶ 51.
The sixth assignment of error is therefore overruled.
F. Alleged Misconduct by the Judge and Guardian Ad Litem
Although difficult to discern, it appears that in his seventh
assignment of error, Husband contends that during the divorce proceedings, the
domestic relations judge and guardian ad litem (“GAL”) attempted to use his poor
financial situation to force him to give up his children and allow Wife to take them
to Texas. Husband cites to nothing in the record to support this scurrilous
accusation. Absent specific references to the record, we need not consider
unsubstantiated assertions. See App.R. 12(A)(2). Moreover, upon our review of the
record, we find nothing whatsoever to support this argument and thus, summarily
overrule the assignment of error.
G. Various Issues
Husband next contends that the trial court denied him “fair and
effective representation” because although the judge knew he did not have money to
hire a lawyer, the judge told him that he could not take money from his retirement
account to hire a lawyer. Husband also contends that the lawyer he eventually hired
told him that the trial judge “is not listening to anything you say” and refused to
consider “detailed documents,” including bank statements and credit card
statements, that he provided to the court. He further contends that Wife “hid
details” and “provided meaningless balance statements” such that the court
“actually knew zero about each of the credit cards,” despite assigning the majority of
the debt to him.
Husband does not cite to portions of the record where these alleged
errors are reflected, as required by App.R. 16(A)(3). Absent specific references to
the record, we need not consider unsubstantiated assertions and are within our
authority to summarily overrule Husband’s assignment of error. App.R. 12(A)(2);
Univ. Hts. v. Johanan, 8th Dist. Cuyahoga No. 110887, 2022-Ohio-2578, ¶ 10, citing
State v. Fisher, 8th Dist. Cuyahoga No. 83098, 2004-Ohio-3123, ¶ 26; Marietta
College v. Valiante, 4th Dist. Washington No. 13CA12, 2013-Ohio-5405, ¶ 12.
Moreover, with respect to his alleged conversation with his lawyer,
Husband relies on facts that are outside the record and thus cannot form the basis
for review. State v. Jones, 8th Dist. Cuyahoga No. 102318, 2015-Ohio-4694, ¶ 91,
citing State v. Wittine, 8th Dist. Cuyahoga No. 90747, 2008-Ohio-5745, ¶ 4.
Furthermore, the trial court’s mutual restraining order issued on November 12,
2019, after the divorce complaint was filed, enjoined both Husband and Wife from
“[v]oluntarily liquidating, encumbering, borrowing against, [or] cashing in * * * any
retirement or pension plan or program that provides any benefit to a spouse or
child(ren) of the parties and/or of either or both spouses.” Thus, the trial court
correctly advised Husband that he could not withdraw funds from his retirement
plan during the pendency of the divorce proceedings. Finally, the record is clear that
Husband did not submit any bank statement or credit card statements to the court;
only Wife provided financial records to the court and Husband raised no objection
at trial to the accuracy of the records. The eighth assignment of error is therefore
overruled.
H. The Mental Health of the Parties and Minor Children
In his ninth assignment of error, Husband contends that the trial
court abused its discretion when rendering its decision because the court did not
consider the mental health of the parties or their minor children. Husband’s
argument is without merit.
R.C. 3109.04 requires a trial court in a divorce proceeding to consider
a child’s best interest when determining the allocation of parental rights and
responsibilities. R.C. 3109.04(F)(1)(e) identifies the mental health of the parents
and child as a factor in making that decision.
The trial court was not required to determine the allocation of
parental rights and responsibilities in this case because Husband and Wife entered
into an agreed shared parenting plan. Thus, R.C. 3109.04(F)(1)(e) does not apply.
Furthermore, our review of the record demonstrates that neither Husband nor Wife
raised any issue whatsoever during the case regarding either the parents’ or the
children’s mental health. Accordingly, the trial court did not abuse its discretion in
not considering an issue that was never raised. The ninth assignment of error is
overruled.
I. GAL Fees
In his tenth assignment of error, Husband contends that the trial
court erred in ordering him to pay additional fees for the GAL because he paid the
initial $750 fee. He also contends that the GAL “provided zero value” and thus his
charged fees were fraudulent.
The total GAL fee was $3,960. The trial court found that Wife had
paid $1,185 toward the fee and Husband had paid $750. The court ordered Wife to
pay an additional $795 for a total payment of $1,980, which is half of the $3,960
total GAL fee. The court ordered Husband to pay an additional $1,230, which would
bring his total payments for the GAL to $1,980, his half of the total $3,960 fee.
Significantly, Husband did not object to the GAL’s motion for fees,
which was filed on February 4, 2022, and set forth his itemized statement of fees,
including the hours he spent on the case and his hourly rate of pay. The motion also
listed the payments made by the parties, specifically noting that Father had paid
$750 to date and Wife had paid $1,185.
It is well settled that a litigant’s failure to raise an issue in the trial
court waives his right to raise that issue on appeal. Perk v. Tomorrows Home
Solutions, L.L.C., 8th Cuyahoga No. 104270, 2016-Ohio-7784, ¶ 8. An appellate
court may nevertheless recognize waived error if it rises to the level of plain error.
Black v. Hicks, 8th Dist. Cuyahoga No. 108958, 2020-Ohio-3976, ¶ 64. However,
the plain error doctrine is not favored and should be applied only in exceptional
circumstances where error to which no objection was made at trial seriously affects
the basic fairness, integrity, or legitimacy of the judicial process. Goldfuss v.
Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), at the syllabus.
Because he did not object to the GAL’s motion, Husband waived any
objection on appeal to the GAL’s fees, including any argument that the GAL
provided no value and overbilled. Furthermore, this case is not the extremely rare
case involving exceptional circumstances to which the plain error doctrine should
be applied. The GAL’s fees were reasonable in light of the hours he expended on the
case and it was not an abuse of discretion for the trial court to require Husband and
Wife to share those fees equally. The tenth assignment of error is therefore
overruled.
J. Alleged Fraud by Wife
In his eleventh assignment of error, Husband asserts that Wife
committed fraud when she testified that she had made a complete disclosure to the
court of all her assets, debts, and bank account information. Husband contends that
Wife’s testimony was fraudulent because she did not disclose that she “has been
depositing money into her Frost Bank, San Antonio, Texas account since 2019.”
Although Husband cites to Wife’s testimony that she had disclosed all
of her assets and debts to the court, he does not cite to any portion of the record
demonstrating that Wife has an account with Frost Bank and has deposited funds
there. Our review of the record demonstrates there was no testimony that Wife has
an account with Frost Bank and no exhibits were introduced regarding the alleged
account. Accordingly, Husband’s argument relies on facts that are outside the
record and that therefore cannot form the basis for review. Jones, 8th Dist.
Cuyahoga No. 102318, 2015-Ohio-4694, at ¶ 91, citing Wittine, 8th Dist. Cuyahoga
No. 90747, 2008-ohio-5745, at ¶ 4. Furthermore, Husband raised no objection at
trial to Wife’s testimony about the accuracy of her disclosures and thus has waived
any argument that she did not fully disclose her bank accounts. The eleventh
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
LISA B. FORBES, J., and
MARY J. BOYLE, J., CONCUR