Strauss v. Strauss , 2011 Ohio 3831 ( 2011 )

[Cite as Strauss v. Strauss, 2011-Ohio-3831.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95377
JULIE A. STRAUSS
PLAINTIFF-APPELLEE
vs.
MARC I. STRAUSS, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CP-D-311479
BEFORE: E. Gallagher, J., Blackmon, P.J., and Stewart, J.
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RELEASED AND JOURNALIZED: August 4, 2011
ATTORNEYS FOR APPELLANT
Jaye M. Schlachet
55 Public Square
Suite 1600
Cleveland, Ohio 44113
Eric M. Levy
55 Public Square
Suite 1600
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Joseph G. Stafford
Gregory J. Moore
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, Ohio 44114
Attorney for Guardian Ad Litem
John H. Lawson
Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
Attorney for Receiver
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Richard A. Rabb
McCarthy, Lebit, Crystal & Liffman
101 West Prospect Avenue
Suite 1800
Cleveland, Ohio 44115
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-appellant Marc I. Strauss (“Husband”) appeals from
the judgment entry of divorce entered in the Cuyahoga County Court of
Common Pleas, Domestic Relations Division on June 8, 2010. Husband
argues that the trial court erred in awarding plaintiff-appellee Julie Strauss
(“Wife”) the status of primary residential parent and legal custodian of the
parties’ minor child, P.S. Husband additionally argues that the trial court
erred in dividing the parties’ marital property and in assigning him costs and
attorney fees generated during the divorce. For the following reasons, we
affirm the decision of the trial court.
{¶ 2} The parties married on March 31, 2001 and have one child, P.S.,
born as issue of the marriage. During the course of their marriage, Wife
worked part- time as a perfusionist at Parma Community General Hospital,
operating a heart/lung machine during open heart surgery. Husband worked
part time as an attorney and engaged extensively in real estate investment
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ventures.
{¶ 3} In 2004, the parties separated and Husband vacated the marital
home in Solon, Ohio. Prior to the time of the parties’ separation, the couple
maintained an upper class standard of living. The parties attempted to
reconcile during 2004 and 2005, but ultimately separated permanently in
August of 2005. On July 13, 2006, Wife filed a complaint for divorce. On
August 14, 2006, Husband answered the complaint and filed a counterclaim.
{¶ 4} On July 13, 2006, the trial court issued a restraining order that
restrained Husband from engaging in various financial transactions including
encumbering his ownership in the marital home, transferring or encumbering
his ownership interest in various real estate ventures, and alienating,
encumbering, borrowing against, transferring, or disposing of any of Wife and
Husband’s property or any assets that Husband might own or possess. The
restraining order further prohibited Husband from re-entering the marital
home, entering the premises of Wife’s employer, and from harassing the Wife.
The trial court appointed a guardian ad litem for the parties’ minor child on
August 23, 2006, and appointed a receiver to conduct business valuations on
July 18, 2007.
{¶ 5} The case came to be heard on the issue of custody on October 1
and October 2, 2009. The trial resumed on February 9, 2010 on the issue of
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the division of marital property. The trial court also heard Wife’s motion for
attorney fees.
{¶ 6} The trial court issued its judgment entry of divorce on June 8,
2010, wherein the court named Wife primary residential parent and legal
custodian of the parties’ minor child. In regard to the division of marital
property, the trial court found that Wife established economic misconduct on
the part of Husband under R.C. 3105.171(E) justifying a distributive award.
The trial court awarded Wife the sum of $500,000 as her share of the marital
property, together with the contents of the former marital home. The trial
court awarded Wife an additional $100,000 of marital property in her
possession along with $80,000 of non-marital separate property. Husband
received his post-marital residence and his other real estate, partnership,
corporate, and trust holdings. As part of the distributive award, Husband
was ordered to sell the marital home along with other property and pay the
proceeds towards Wife’s $500,000 judgment, or alternatively, retain the
property and pay Wife $70,000 of the $500,000 award within 60 days.
Husband was ordered to replace $55,688 in P.S.’s 529 college account that
Husband had liquidated during the pendency of the divorce proceedings.
Husband was ordered to pay $200,000 of Wife’s outstanding $230,000 in legal
fees. The trial court also ordered Husband to pay the fees of the guardian ad
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litem, the receiver, the receiver’s attorney fees, and court costs. It is from this
order that Husband presently appeals, asserting the four assignments of error
contained in the appendix to this opinion.
I. Allocation of Parental Rights.
{¶ 7} Husband’s first assignment of error asserts that the trial court
abused its discretion in allocating parental rights and erred by awarding Wife
the status of primary residential parent and legal custodian of the parties’
minor child.
{¶ 8} When reviewing a ruling pertaining to the allocation of parental
rights, the trial court is to be afforded great deference. Miller v. Miller
(1988), 37 Ohio St. 3d 71, 523 N.E.2d 846. “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. The knowledge a trial court gains through
observing the witnesses and the parties in a custody proceeding cannot be
conveyed to a reviewing court by a printed record. In this regard, the
reviewing court in such proceedings should be guided by the presumption that
the trial court’s findings were indeed correct.” Id. at 74 (internal citations
omitted).
{¶ 9} An appellate court must uphold the trial court’s allocation of
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parental rights and responsibilities absent an abuse of discretion, which
implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.
Mason v. Mason, Cuyahoga App. No. 80368, 2002-Ohio-6042, citing Masters
v. Masters (1994), 69 Ohio St. 3d 83, 630 N.E.2d 665. Accordingly, absent a
clear showing of an abuse of discretion, we will not reverse the trial court’s
judgment.
{¶ 10} Provisions for the allocation of parental rights and responsibilities
are set forth in R.C. 3109.04, and the statute expresses a strong presumption
that shared parenting is in the best interest of the child. Dietrich v. Dietrich,
Cuyahoga App. No. 90565, 2008-Ohio-5740. The presumption in favor of
shared parenting can be overcome, however, by evidence showing that shared
parenting would not be in the child’s best interests. See R.C. 3109.04(A)(1.)
A “best interests” determination is at all times reposed in the court’s
discretion, and a decision that shared parenting is not in a child’s best interest
is reviewable only for an abuse of that discretion. Kong v. Kong, Cuyahoga
App. No. 93120, 2010-Ohio-3180, citing Braatz v. Braatz (1999), 85 Ohio
St.3d 40, 45, 706 N.E.2d 1218.
{¶ 11} In determining the best interests of a child, the court is to consider
all relevant factors, including, but not limited to, those factors set forth in R.C.
3109.04(F)(1). Also, in determining whether shared parenting is in the best
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interests of the child, the court is to additionally consider the relevant factors
enumerated under R.C. 3109.04(F)(2). R.C. 3109.04(F)(1) and (2) provide the
following factors for a trial court to consider:
“(1) * * * (a) The wishes of the child’s parents regarding the child’s care;
“(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child’s wishes and concerns as
to the allocation of parental rights and responsibilities concerning the
child, the wishes and concerns of the child, as expressed to the court;
“(c) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly affect the
child’s best interest;
“(d) The child’s adjustment to the child’s home, school, and community;
“(e) The mental and physical health of all persons involved in the
situation;
“(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
“(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that parent
pursuant to a child support order under which that parent is an obligor;
“(h) Whether either parent or any member of the household of either
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parent 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; whether either parent, in a case in which a child
has been adjudicated an abused child or a neglected child, previously
has been determined to be the perpetrator of the abusive or neglectful
act that is the basis of an adjudication; whether either parent or any
member of the household of either parent previously has been convicted
of or pleaded guilty to a violation of section 2919.25 of the Revised Code
or a sexually oriented offense involving a victim who at the time of the
commission of the offense was a member of the family or household that
is the subject of the current proceeding; whether either parent or any
member of the household of either parent previously has been convicted
of or pleaded guilty to any offense involving a victim who at the time of
the commission of the offense was a member of the family or household
that is the subject of the current proceeding and caused physical harm to
the victim in the commission of the offense; and whether there is reason
to believe that either parent has acted in a manner resulting in a child
being an abused child or a neglected child;
“(i) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the other
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parent’s right to parenting time in accordance with an order of the court;
“(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
“(2) * * * (a) The ability of the parents to cooperate and make decisions
jointly, with respect to the children;
“(b) The ability of each parent to encourage the sharing of love, affection,
and contact between the child and the other parent;
“(c) Any history of, or potential for, child abuse, spouse abuse, other
domestic violence, or parental kidnapping by either parent;
“(d) The geographic proximity of the parents to each other, as the
proximity relates to the practical considerations of shared parenting;
“(e) The recommendation of the guardian ad litem of the child, if the
child has a guardian ad litem.”
{¶ 12} The trial court’s judgment entry of divorce reveals that the court’s
decision to designate Wife as the residential parent and legal custodian of P.S.
was based upon the inability of Husband to communicate and cooperate with
Wife in regard to P.S. without verbally abusing or threatening her, his
inability to comply with court orders including child support and visitation
time, and the guardian ad litem’s positive testimony of Wife as a parent. It is
clear from the trial court’s adoption of many of the suggestions in the guardian
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ad litem’s report that the court placed significant weight on the
recommendations of the Guardian.
{¶ 13} A review of the record reveals that the trial court’s determination
is indeed supported by competent, credible evidence. The guardian ad litem
described Wife as a “very good mother” who “puts [P.S.’s] needs first.” (Oct. 1,
2009 Tr. 22.) She is “extremely objective,” possessing genuine concern for
P.S.’s situation. (Oct. 1, 2009 Tr. 90.) Wife does not yell and scream and
does not raise her voice. (Oct. 1, 2009 Tr. 34.) She is non-confrontational.
Though Wife has Multiple Sclerosis it does not affect her parenting of P.S.
(Oct. 2, 2009 Tr. 316.)
{¶ 14} Husband is an attorney involved in real estate and currently
employed with the Tanglewood National Golf Club. The guardian ad litem
stated that Husband is more than a “standard visitation dad.” (Oct. 1, 2009 Tr.
137.) Husband and P.S. have a loving relationship. (Oct. 1, 2009 Tr. 115.)
Husband wants to spend time with P.S and P.S. enjoys spending time with his
father. (Oct. 1, 2009 Tr. 115.) P.S. also has a close big brother relationship
with his two half-sisters, which are Husband’s daughters from his current
relationship. (Oct. 1, 2009 Tr. 116.)
{¶ 15} Under R.C. 3109.04(F)(2)(a), a primary factor to be considered
when determining whether shared parenting is in the best interest of a child is
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“the ability of the parents to cooperate and make decisions jointly.” Sadowski
v. Sadowski, Cuyahoga App. No. 88929, 2007-Ohio-5061, at ¶15. In the case
sub judice, extensive testimony was heard from the guardian ad litem, Wife,
and even Husband regarding Husband’s inability to communicate productively
with Wife regarding P.S.
{¶ 16} The guardian ad litem testified that the parties have had nonstop
conflict over visitation issues. (Oct. 1, 2009 Tr. 88.) The parties are often
unable to agree on matters and need the guardian ad litem to intervene.
(Oct. 1, 2009 Tr. 31.) The guardian ad litem testified that Husband has
created conflict in the case while Wife has attempted to shield P.S. from such
conflict. (Oct. 1, 2009 Tr. 38.) In one such instance, despite mediation
assistance from the guardian ad litem, the parties were unable to reach an
agreement in regard to P.S. Husband made threats resulting in a court order
restraining Husband from picking P.S. up at school so as to avoid P.S. being
treated like a “football” in the divorce dispute. (Oct. 1, 2009 Tr. 28.)
{¶ 17} The guardian ad litem testified that mediating disputes with
Husband is challenging as he will make demands when he knows Wife will
never agree. (Oct. 1, 2009 Tr. 144.) Wife testified that communication is a
big problem with Husband. If he doesn’t get his way he talks over Wife,
yelling at her and threatening her. (Oct. 2, 2009 Tr. 324.)
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{¶ 18} P.S. suffers from high anxiety issues. Extensive testimony was
heard regarding an incident wherein Husband was ordered to return P.S., six
years old at the time, from an out of town vacation earlier than Husband
desired. Husband indicated to Wife that he intended to put P.S. on a
commercial flight home, by himself, and that a third party would pick him up
at the airport and return him to the marital home. Husband, however, drove
P.S. home without telling Wife of the travel plans, keeping her in the dark
during the incident. (Oct. 1, 2009 Tr. 39-43, 270-276.) Husband testified
that he didn’t think it was a big deal to communicate his change of plans to
Wife and let her know that he in fact did not put P.S. on a plane by himself.
(Oct. 1, 2009 Tr. 276.) The guardian ad litem characterized the situation as
one involving an “element of torture” from Husband towards Wife. (Oct. 1,
2009 Tr. 44.)
{¶ 19} The guardian ad litem testified that Husband engages in verbal
abuse towards Wife including hostile and demeaning emails and text
messages. (Oct. 1, 2009 Tr. 26, 28, 29, 30, 36.) Husband himself admitted to
calling Wife a “bitch”, “asshole”, “f***ing bitch” and “c***.” (Oct. 1, 2009 Tr.
241.) Though P.S. never indicated to the guardian ad litem that he witnessed
name calling (Oct. 1, 2009 Tr. 46), Wife testified that Husband was verbally
abusive towards her and confrontational without regard to P.S.’s presence.
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(Oct. 2, 2009 Tr. 319.) Wife testified that Husband called her a “bitch” on
Mother’s Day in front of P.S. (Oct. 2, 2009 Tr. 320) and that Husband gave
her “the finger” in front of P.S. at a T-Ball function. (Oct. 2, 2009 Tr. 322.)
{¶ 20} The guardian ad litem testified that Husband tends to lose his
temper and that “he does get quite out of control.” (Oct. 1, 2009 Tr. 46, 69.)
The guardian ad litem further testified that Husband threatened, on more
than one occasion, to have him disbarred and sanctioned during the divorce
case. (Oct. 1, 2009 Tr. 92.) The guardian ad litem has also witnessed
Husband threaten others including the Receiver in the case. (Oct. 1, 2009 Tr.
70.) It was necessary for the guardian ad litem to reassure P.S.’s speech
therapist that Husband was not a physical threat. (Oct. 1, 2009 Tr. 24.)
Husband himself acknowledged that he occasionally engages in bad behavior
(Oct. 1, 2009 Tr. 244), and stated that the guardian ad litem testified
accurately regarding his behavior. (Oct. 1, 2009 Tr. 305.) Husband
acknowledged an email wherein he threatened to keep Wife in litigation for 12
years. (Plaintiff’s Exhibit 63, Oct. 1, 2009 Tr. 245-246.) The guardian ad
litem viewed Husband’s bullying conduct as not good for P.S. and stated that
Husband needs to be a better role model. (Oct. 1, 2009 Tr. 94.)
{¶ 21} Beyond the parties’ inability to communicate and resolve disputes
concerning P.S., extensive testimony was heard at trial regarding Husband’s
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inability to abide by court orders. In determining the best interests of a child,
R.C. 3109.04(F)(1)(f) instructs the trial court to consider, “[t]he parent more
likely to honor and facilitate court-approved parenting time rights or visitation
and companionship rights.”
{¶ 22} At trial, the guardian ad litem testified that Husband has a
problem following court orders. (Oct. 1, 2009 Tr. 78.) In regard to visitation
orders, Husband is often not on time. (Oct. 1, 2009 Tr. 23, 32.) The guardian
ad litem testified that Husband is often late picking P.S. up and late returning
him to Wife. (Oct. 1, 2009 Tr. 79.) Husband did not deny this charge. (Oct.
1, 2009 Tr. 267.) In contrast to Husband, the guardian ad litem testified that
Wife is good at following his directions and recommendations and that she
follows directions even when not happy about it. (Oct. 1, 2009 Tr. 91.)
{¶ 23} Beyond visitation times, Husband admitted that he took P.S. into
one of his personal counseling sessions despite a court order that prohibited
P.S. from being taken for any further evaluations or appointments with any
counselor. (Oct. 1, 2009 Tr. 258.) Husband additionally admitted that he
violated a court order by appearing at Wife’s place of employment. (Oct. 1,
2009 Tr. 260-261.) In contrast, when asked, Husband was unable to cite a
single instance where Wife did not follow court orders. (Oct. 1, 2009 Tr. 303.)
{¶ 24} Another best interests factor under R.C. 3109.04(F)(1)(g) is
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“[w]hether either parent has failed to make all child support payments,
including all arrearages, that are required of that parent pursuant to a child
support order under which that parent is an obligor.” Husband admitted that
he had been found in contempt of court for failing to pay child support. (Oct.
1, 2009 Tr. 225.) Husband failed to purge himself of the contempt by paying
the arrearage within thirty days as ordered by the court. (Oct. 1, 2009 Tr.
225.) Husband only purged his contempt and paid the arrearage on his child
support when the court indicated it would have him arrested. (Oct. 1, 2009
Tr. 226.) Further, despite a court order restraining Husband from
“alienating, encumbering, borrowing against, transferring, giving away,
destroying, or disposing of any of the Plaintiff’s and [Defendant’s] property or
any assets that the Defendant might own or possess * * *,” Husband cashed in
an IRA to pay the arrears. (Oct. 1, 2009 Tr. 226.) Finally, Husband
admitted that he had been on vacation and spent “some money” despite having
not paid child support. (Oct. 1, 2009 Tr. 235-236.)
{¶ 25} Lastly R.C. 3109.04(F)(2)(e) instructs the trial court to consider,
“[t]he recommendation of the guardian ad litem of the child * * *.” P.S.’s
guardian ad litem filed his report in this case on September 24, 2009. The
report contains a number of relevant observations. The report indicates that
Husband is sometimes capable of reaching agreement with Wife on matters
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affecting P.S., however, at other times Husband “gets angry and does not
allow for productive discussions or interactions between he and [Wife].”
G.A.L. Report p.3. “[Husband] clearly needs to place communication
regarding [P.S.] above his negative communication with [Wife].
Communicating by using swear words, derogatory remarks and, raised voices
to me states that a party cannot stay focused on the responsibility to place
[P.S.’s] well-being first.” G.A.L. Report p.3-4. The Guardian opined that,
“the issues with [P.S.] could have been resolved years ago but from time to
time [Husband’s] explosive anger has caused more problems than it has
solved.” G.A.L. Report p.4. The Guardian asserted that, “shared parenting
with joint responsibility will not work if [Husband] continues to be frenetic
and uncooperative and zealous and adversarial and on the edge of being out of
control.” G.A.L. Report p.4.
{¶ 26} The guardian ad litem’s report concluded by recommending a
“shared parenting plan” but under the Guardian’s plan Wife would be named
residential parent and residential parent for school purposes. At trial, the
guardian ad litem again reiterated that Wife should be named residential
parent and legal custodian of P.S. The guardian ad litem stated that while he
termed his plan “shared parenting” in his report, it really is not typical shared
parenting, rather that terminology was just used to save dignity. (Oct. 1,
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2009 Tr. 136, 148-150.) As noted by the guardian ad litem in his brief, the
trial court adopted many of the specific recommendations in the G.A.L. report
in whole or in part.
{¶ 27} Our review of the record indicates that the trial court considered
all of the relevant factors listed in R.C. 3109.04(F)(1) and (F)(2) and that there
is competent, credible evidence supporting the trial court’s conclusion that
designating Wife as the residential parent and legal custodian of P.S. is in the
child’s best interest. We conclude that the court did not act in an
unreasonable, arbitrary, or unconscionable manner by finding the
presumption in favor of shared parenting, in the traditional sense, was
rebutted by the evidence.
{¶ 28} Husband’s first assignment of error is overruled.
II. Division of Marital Property and Separate Property.
{¶ 29} In the interest of continuity, we examine Husband’s third and
fourth assignments of error out of order. In his third assignment of error,
Husband argues that the trial court erred in dividing the parties’ marital
property. Specifically, Husband argues that the trial court erred in allocating
marital assets, finding that Husband engaged in economic misconduct
throughout the course of the divorce, and in determining separate property.
De Facto Termination of Marriage Date
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{¶ 30} As an initial matter Husband argues that the trial court
erroneously selected the date of trial as being the date of the termination of
marriage because the parties had been permanently separated since August of
2005.
{¶ 31} Pursuant to R.C. 3105.171(A)(2)(a), the date of the final hearing is
presumed to be the appropriate termination date of the marriage unless the
court, in its discretion, uses a de facto termination. O’Brien v. O’Brien,
Cuyahoga App. No. 89615, 2008-Ohio-1098, at ¶40, citing Badovick v.
Badovick (1998), 128 Ohio App. 3d 18, 713 N.E.2d 1066; Berish v. Berish
(1982), 69 Ohio St. 2d 318, 321, 432 N.E.2d 183.
{¶ 32} “In general, trial courts use a de facto termination of marriage
date when the parties separate, make no attempt at reconciliation, and
continually maintain separate residences, separate business activities, and
separate bank accounts. However, courts should be reluctant to use a de
facto termination of marriage date solely because one spouse vacates the
marital home. Rather, a trial court may use a de facto termination of marriage
date when the evidence clearly and bilaterally shows that it is appropriate
based upon the totality of the circumstances. A court’s decision to use the
date of the final hearing or a de facto date is discretionary and will not be
reversed on appeal absent an abuse of discretion.” Id. at ¶41, (internal
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citations omitted).
{¶ 33} Here, we do not find that the trial court abused its discretion in
failing to find a de facto date of termination of the marriage that was earlier
than the final hearing date. Husband directs the Court to his memorandum
regarding de facto termination of marriage that was filed September 29, 2009.
None of the assertions of fact on which he bases his argument are supported
by an attached affidavit to this motion. Beyond Husband’s motion, significant
portions of the parties’ marital property and financial holdings remained
entangled until trial to the extent that the trial court specifically found that
Husband’s economic conduct during the divorce, routinely in violation of
restraining orders, directly dissipated marital assets. After initially
separating, the parties attempted to reconcile throughout 2004 and 2005.
Husband continued to pay the mortgage on the marital home where Wife
resided with P.S. throughout the divorce and he surreptiously placed a second
mortgage on the marital property without notifying Wife. Additionally,
during the divorce Husband failed to comply with court ordered support
obligations. Finally, the parties shared credit cards beyond August of 2005.
For these reasons, we find that the trial court did not err in refusing to find a
de facto termination date of the marriage.
Division of Marital Property
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{¶ 34} We next address Husband’s argument that the trial court erred in
its division of the parties’ marital property. In a divorce proceeding, a trial
court must divide the marital property of the parties equitably. R.C.
3105.171(B); Cherry v. Cherry (1981), 66 Ohio St. 2d 348, 421 N.E.2d 1293.
Marital property includes all real and personal property and interest in real
and personal property that is currently owned by either or both of the spouses
and that was acquired by either or both of the spouses during the marriage.
Separate property includes property acquired prior to the date of marriage, or
through inheritance or gift, or acquired with non-marital funds after
separation.
{¶ 35} We review a trial court’s division of property under an abuse of
discretion standard. Holcomb v. Holcomb (1989), 44 Ohio St. 3d 128, 131, 541
N.E.2d 597. In doing so, we consider whether the property division, as a
whole, was an abuse of discretion. See Briganti v. Briganti (1984), 9 Ohio
St.3d 220, 222, 459 N.E.2d 896. An abuse of discretion connotes more than
an error in judgment; it implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d
217, 219, 450 N.E.2d 1140. Accordingly, if there is some competent, credible
evidence in the record to support the trial court’s decision, there is no abuse of
discretion. Kapadia v. Kapadia, Cuyahoga App. No. 94456, 2011-Ohio-2255,
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citing Wilburn v. Wilburn, Lorain App. No. 05CA008740, 2006-Ohio-2553.
{¶ 36} R.C. 3105.171, which governs property distribution, expresses no
specific way for the trial court to determine property valuation. Crim v.
Crim, Tuscarawas App. No. 2007 AP 06 0032, 2008-Ohio-5367; Focke v. Focke
(1992), 83 Ohio App. 3d 552, 615 N.E.2d 327. An appellate court’s duty is not
to require the adoption of any particular method of valuation, but to determine
whether, based upon all the relevant facts and circumstances, the court
abused its discretion in arriving at a value. Focke; James v. James (1995),
101 Ohio App. 3d 668, 656 N.E.2d 399. A trial court must have a rational,
evidentiary basis for assigning value to marital property. McCoy v. McCoy
(1993), 91 Ohio App. 3d 570, 632 N.E.2d 1358.
{¶ 37} R.C. 3105.171(C)(1) mandates an equal division of marital
property, or if an equal division is inequitable, the court must divide the
marital property equitably. See Neville v. Neville, 99 Ohio St. 3d 275, 277,
2003-Ohio-3624, 791 N.E.2d 434. To determine what is equitable, a trial court
must consider the factors set forth in R.C. 3105.171(F). Id.
{¶ 38} R.C. 3105.171(E)(1) allows for a trial court to make a distributive
award to “facilitate, effectuate, or supplement a division of marital property.”
R.C. 3105.171(E)(4) sets forth a court’s authority to issue a distributive award
as follows: “If a spouse has engaged in financial misconduct, including, but not
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limited to, the dissipation, destruction, concealment, nondisclosure, or
fraudulent disposition of assets, the court may compensate the offended
spouse with a distributive award or with a greater award of marital property.”
{¶ 39} “The distributive award concept is consistent with the
well-established principle that trial courts have broad discretion when
creating an equitable division of property in a divorce proceeding.” Adams v.
Chambers (1992), 82 Ohio App. 3d 462, 612 N.E.2d 746, citing Teeter v. Teeter
(1985), 18 Ohio St. 3d 76, 479 N.E.2d 890.
{¶ 40} In the case sub judice, Husband argues that the trial court erred
in finding that he engaged in economic misconduct and in its division of
marital property. Contrary to Husband’s arguments, a review of the
transcript supports the trial court’s conclusions that Husband’s testimony was
evasive, internally inconsistent, contradictory, and lacking in credibility.
Husband’s own admissions at trial support the court’s finding that Husband:
“Repeatedly violated Court restraining orders by encumbering and
pledging assets during the course of the divorce proceedings. During the
divorce proceedings, increased debt was incurred and net assets were
diminished as a result of [Husband’s] dealings in violation of the
restrictions of the restraining orders.” (See for example, Feb. 9, 2010
Tr. 65, 76-77, 81-82, 112, 144, 147, 186, 204; Feb. 10, 2010 Tr. 305-306,
24
371, 484.)
{¶ 41} Husband testified that after the court order restrained him from
encumbering assets he incurred $13 million dollars in debt. (Feb. 10, 2010
Tr. 484.) Husband stated that he may have borrowed as much as $16 million
dollars during the divorce but justified this by stating, “* * * it’s down to $9.9
million, so I’ve done pretty well in [these] economic times, paid off seven
million in loans through developments.” (Feb. 10, 2010 Tr. 484-485.)
Husband admitted that at no point did he petition the court for relief from the
restraining order to incur such debts, nor did he consult Wife regarding the
debts during the divorce. (Feb. 9, 2010 Tr. 118; Feb. 10, 2010 Tr. 487.)
Husband admitted that he is a “gambling kind of risk taker” in his real estate
investments and he claims that he is presently broke due to poor investments.
(Feb. 10, 2010 Tr. 665-668.)
{¶ 42} In attempting to value the marital property in this case, the trial
court expressed its frustration that “[w]hile it would be desirable to divide the
parties’ property in terms of an accounting like balance sheet, in this case that
is simply not possible.” The court found that this was due in large part to
Husband’s obstructing of discovery. The testimony of the court appointed
receiver supported this conclusion. (Feb. 10, 2010 Tr. 402, 411, 443, 447,
452.) Husband himself acknowledged non-disclosure of certain financial
25
information. (Feb. 9, 2010 Tr. 147, 153; Feb. 11, 2010 Tr. 738.) Husband
claimed that his tax return for 2008 was still not completed at the time of trial
in February of 2010 because he owed his accountant money. (Feb. 9, 2010 Tr.
130.)
{¶ 43} Husband repeatedly denied receiving hundreds of thousands of
dollars in distributions from his real estate ventures throughout the course of
the divorce despite documentary evidence that reflected such distributions.
(Feb. 9, 2010 Tr. 98; Feb. 10, 2010 Tr. 275, 280-282, 293, 294-296, 301.)
Husband repeatedly testified that he was unable to recall or did not know
what happened to distributions he did receive. (Feb. 9, 2010 Tr. 69-70, 72,
82-83.)
{¶ 44} Despite Husband’s position that he was completely broke,
Husband admitted to completing a financial affidavit on September 22, 2008
for the purpose of borrowing money from Huntington National Bank. (Feb. 10,
2010 Tr. 371-383.) Husband’s financial disclosures to Huntington revealed
that he claimed total assets of $3,933,000 and a net worth of $2,374,000. (Feb.
10, 2010 Tr. 379.) Husband testified that he was telling the truth when he
completed this financial affidavit. (Feb. 10, 2010 Tr. 374.) The trial court put
significant weight upon this documentation in determining the overall value of
the parties’ marital property.
26
{¶ 45} It is for the trial court to resolve disputes of fact and weigh the
testimony and credibility of the witnesses. Pruitt v. Pruitt, Cuyahoga App.
No. 84335, 2005-Ohio-4424, at ¶32, citing Bechtol v. Bechtol (1990), 49 Ohio
St.3d 21, 23, 550 N.E.2d 178. Based on the testimony and related
documentation discussed above, the trial court found that Husband had
engaged in economic misconduct in violation of R.C. 3105.171(E)(4) and stated
that it would “fashion a distributive award consisting of property and a lump
sum monetary award for dissipated assets, as well as a significant sum
towards [Wife’s] attorney fees and costs.”
{¶ 46} The trial court awarded wife $500,000 as her share of the marital
property together, along with the contents of the former marital home. The
trial court additionally awarded Wife $100,000 worth of marital property
stemming from her retirement and pension plans, rollover accounts at FSC,
checking and savings account at Fifth Third Bank, a brokerage account, and a
motor vehicle. The trial court noted that the $600,000 total award of marital
property was less than a 50 percent division of Husband’s purported net worth
of $2,374,000, however, in consideration of the factors in R.C. 3105.171(F), the
court noted that the marriage was not one of great length and that husband
was “engaged in real estate transactions during a rapidly degenerating real
estate market and total reliance on a statement prepared for loan purposes is
27
somewhat suspect.”
{¶ 47} Based on the foregoing we find that the trial court’s finding that
Husband committed financial misconduct did not constitute an abuse of
discretion. The record strongly supports the trial court’s conclusion that
Husband ignored court orders and engaged in risky real estate ventures,
conducting business as usual to the detriment of marital assets.
Furthermore, the record reveals that the trial court considered the factors in
R.C. 3105.171(F) in determining an equitable division of marital property and
the court’s decision is supported by competent, credible evidence in the record.
We find that the trial court did not abuse its discretion in dividing marital
property.
Separate Property
{¶ 48} Husband argues that the trial court erred in determining the
separate property of both Husband and Wife. The determination of whether
property is marital or separate is a mixed question of law and fact and will not
be reversed unless it is against the manifest weight of the evidence. Torres v.
Torres, Cuyahoga App. Nos. 88582 and 88660, 2007-Ohio-4443, at ¶14. Once
the characterization is made, the actual distribution of the property will not be
disturbed absent an abuse of discretion. Larkey v. Larkey (Nov. 4, 1999),
Cuyahoga App. No. 74765, citing Cherry v. Cherry (1981), 66 Ohio St. 2d 348,
28
355, 421 N.E.2d 1293.
{¶ 49} Property acquired during a marriage is presumed to be marital
property. Williams v. Williams, Cuyahoga App. No. 95346, 2011-Ohio-939.
“The party seeking to have a particular asset classified as separate property
has the burden of proof, by a preponderance of the evidence, to trace the asset
to separate property.” Id., quoting Peck v. Peck (1994), 96 Ohio App. 3d 731,
734, 645 N.E.2d 1300. See, also, R.C. 3105.171.
{¶ 50} Marital property is defined as “[a]ll real and personal property
that currently is owned by either or both of the spouses, including, but not
limited to, the retirement benefits of the spouses, and that was acquired by
either or both of the spouses during the marriage.” R.C. 3105.171(A)(3)(a)(i).
Marital property also includes “ * * * all income and appreciation of separate
property, due to the labor, monetary, or in-kind contribution of either or both
of the spouses that occurred during the marriage.” R.C. 3105.171(A)(3)(a)(iii).
{¶ 51} By contrast, 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. R.C. 3105.171(A)(6)(a)(ii).
Separate property also includes inheritances by one spouse by bequest, devise,
or descent during the course of the marriage. R.C. 3105.171(A)(6)(a)(i). Such
property remains separate property, even when it is commingled with other
29
property, unless it is not traceable. R.C. 3105.171(A)(6)(b). However, if
commingled marital funds were used to pay the expenses of separate real
estate, the real estate is properly considered marital property subject to
equitable division. Robinette v. Robinette, Cuyahoga App. No. 88445,
2007-Ohio-2516 at ¶23. “The Party attempting to prove that the asset is
traceable separate property must establish such tracing by a preponderance of
the evidence.” Id., citing Price v. Price, 11th Dist. No. 2000-G-2320,
2002-Ohio-299. It is that party’s burden to trace the funds used to pay for the
real estate and establish, by a preponderance of the evidence, that his
separate property was not commingled with marital proeprty. Id. at ¶25,
citing Osborn v. Osborn, Trumbull App. No. 2003-T-0111, 2004-Ohio-6476.
{¶ 52} We note initially that the trial court left the marital home and
Husband’s Shaker Heights condominiums that Husband purchased prior to
the marriage to Husband. However, as part of the distributive award
addressed above, the trial court ordered Husband to immediately place the
properties up for sale and apply the proceeds to Wife’s $500,000 monetary
award or, if Husband preferred not to sell the properties, the court ordered
Husband to pay Wife an initial $70,000 of the monetary award within 60 days.
We find no error in the trial court’s distributive award in light of the fact that
at trial Husband submitted no documentation demonstrating that non-marital
30
funds were used for the mortgage, upkeep, and renovations of these properties
during the course of the marriage and divorce proceedings. (Feb. 11, 2010 Tr.
719, 754.)
{¶ 53} Additionally Husband was awarded his Willoughby, Ohio
residence, including its contents, all motor vehicles titled in his name, and all
his other real estate, partnership, corporate, and trust holdings.
{¶ 54} Husband argues that the trial court should have awarded him
non-marital property credit in the amount of $638,838.78 based on money that
he had inherited from his mother’s estate in 2002. Husband testified that he
placed this money in several UBS Paine Webber accounts in 2002. Husband
presented documentation of the UBS accounts including an April 2007
“summary of asset allocation” that reflected $682,416.22 in total account
values. Husband claimed that he used the money in his UBS accounts to
purchase shares of stock in various real estate ventures that later resulted in
distributions back to him. (Feb. 11, 2010 Tr. 645.)
{¶ 55} However, Husband testified that the UBS accounts had been
“wiped out” at the time of trial. He admitted that the money was lost on poor
real estate investments. (Feb. 10, 2010 Tr. 607.) Husband further testified
that during the course of the marriage and divorce, he never kept track of any
funds going out of or back into the UBS accounts despite the fact that all the
31
money that he had made during the course of the marriage he invested in real
estate. (Feb. 11, 2010 Tr. 721-722.) Husband further testified that it was
impossible for him to track what money went in and out of his real estate
dealings. (Feb. 11, 2010 Tr. 723.)
{¶ 56} Without documentation of money coming in and out of real estate
deals the trial court was free to disbelieve Husband’s self-serving testimony.
Deacon v. Deacon, Cuyahoga App. No. 91609, 2009-Ohio-2491, at ¶43, citing
Tokar v. Tokar, 8th Dist. No. 89522, 2008-Ohio-6467 (trial court properly
rejected Husband’s testimony regarding negative value of marital property
because he failed to submit independent evidence); Smith v. Smith, 12th Dist.
No. CA2001-11-259, 2002-Ohio-5449 (trial court did not abuse its discretion in
rejecting Husband’s claim that he used money withdrawn from savings plan
on marital household expenses when Husband failed to substantiate his
self-serving testimony).
{¶ 57} Based on the above testimony, the trial court did not abuse its
discretion when it found that Husband’s efforts to trace the inherited funds
through the UBS accounts and into his various real estate ventures failed to
establish, by a preponderance of the evidence, that his separate property was
not commingled with marital property.
{¶ 58} Finally, Husband argues that the trial court erred in finding
32
separate property in favor of Wife in the amount of $80,000. At trial Wife
testified that she had a brokerage account with Dean Witter containing
$9,000, which she had accumulated prior to the marriage, along with FSC
Rollover Accounts from jobs prior to marriage in the amounts of $10,000 and
$50,000. (Feb. 10, 2010 Tr. 554-555.) Husband did not challenge these
assertions. Wife further testified that she had a 401K from Parma General
Hospital. Wife’s testimony was that she did not know exactly how much
money was in the 401K prior to marriage. She estimated $20,000. (Feb. 10,
2010 Tr. 555.) Wife’s exhibit 136 indicates a balance in the 401K of
$102,128.57 as of December 31, 2009. Wife’s exhibit 160 reflects that the
401K’s balance was $17,833.17 as of March 31, 2001, the date of marriage.
Husband’s argument that wife provided “absolutely zero evidence of any
separate property” is refuted by the record and without merit.
{¶ 59} Husband’s third assignment of error is overruled.
P.S.’s 529 College Account
{¶ 60} Husband’s fourth assignment of error also pertains to separate
property. Husband argues that the trial court erred by ordering him to
replace $55,688 in a 529 College Savings Account for P.S. At trial Husband
testified that he liquidated P.S.’s 529 trust during the course of the divorce,
despite the restraining order, in order to repay a loan to Dollar Bank for one of
33
his real estate companies. (Feb. 9, 2010 Tr. 144.) Husband claimed that the
money that originally funded the 529 account came from the money that he
had inherited from his mother. (Feb. 11, 2010 Tr. 658.) Husband presently
argues that despite the restraining order, he had the right to unilaterally
remove the funds because he felt they constituted his separate property. As
discussed above, the trial court specifically found that Husband failed to
properly trace his inherited funds with documentary evidence and found
Husband’s self-serving testimony to be lacking credibility.
{¶ 61} Husband’s fourth assignment of error is overruled.
III. Attorney Fees, Guardian Ad Litem Fees, Receiver Fees and
Court
Costs.
{¶ 62} Lastly, we address Husband’s second assignment of error that
asserts that the trial court abused its discretion by ordering Husband to pay a
portion of Wife’s attorney fees as a lump sum spousal award, fees for the
receiver, the receiver’s attorney fees, the outstanding balance owed to the
guardian ad litem and court costs.
{¶ 63} A key factor in the trial court’s decision to hold Husband
responsible for each of the above fees and costs was an email from Husband to
Wife wherein Husband stated, “Lets have a global settlement with [P.S.] now
or I will keep you in Court for the next 12 years, not a threat just a reality * *
34
*” (Plaintiff’s Exhibit 63; Feb. 10, 2010 Tr. 532-533.) In regard to
assigning the above fees and costs the trial court explained it’s rationale as
follows:
“* * * the Court credits [Husband’s] e-mail to [Wife] where he threatened
to keep her in Court for twelve years. That e-mail served as a blunt
assessment of the legal strategy he employed to impede, obstruct, and
hinder the progress of this case, creating along the way exorbitant costs
in litigation. Since [Husband] chose this route, he must bare the expense
of this nonsense.”
Wife’s Attorney Fees
{¶ 64} In regard to Wife’s attorney fees, the trial court ordered Husband
to pay $200,000 of Wife’s outstanding attorney fee balance of $230,000. The
trial court fashioned Wife’s attorney fee award in the form of a lump sum
spousal award pursuant to R.C. 3105.73(D).
{¶ 65} The decision to award attorney fees rests in the sound discretion of
the court and will not be overturned on appeal absent an abuse of that
discretion. O’Brien v. O’Brien, Cuyahoga App. No. 89615, 2008-Ohio-1098, at
¶77, citing Layne v. Layne (1992), 83 Ohio App. 3d 559, 568, 615 N.E.2d 332.
R.C. 3105.73 sets forth the trial court’s authority to award attorney fees in a
divorce proceeding and provides in relevant part:
35
“(A) In an action for divorce, dissolution, legal separation, or annulment
of marriage or an appeal of that action, a court may award all or part of
reasonable attorney’s fees and litigation expenses to either party if the
court finds the award equitable. In determining whether an award is
equitable, the court may consider the parties’ marital assets and income,
any award of temporary spousal support, the conduct of the parties, and
any other relevant factors the court deems appropriate.”
{¶ 66} Beyond Husband’s candid email, extensive testimony was heard at
trial regarding Husband’s lack of cooperation in discovery and custody
matters. (See for example, Feb. 9, 2010 Tr. 113; Feb. 10, 2010 Tr. 402-403,
411, 443, 452, 457, 528-529.) The record reflects that Husband routinely
ignored court orders relating to both spousal and child support and the
transference and encumbrance of marital assets that resulted in additional
litigation. (See Feb. 9, 2010 Tr. 65, 76-77, 81-82, 112, 117-119, 139-142, 147,
153, 178, 204; Feb. 10, 2010 Tr. 390-391, 484.) The lengthy docket in this
case reveals the extensive litigation and court filings that the trial court
attributed, at least in part, to Husband’s conduct.
{¶ 67} In further support of the trial court’s decision to award Wife a
portion of her attorney fees, the trial court found that Husband engaged in
economic misconduct under R.C. 3105.171(E)(4) resulting in the dissipation of
36
marital assets. Husband ignored the trial court’s restraining order and
unilaterally gambled marital property on real estate ventures during the
course of the divorce proceedings. As discussed above, the record supports
the trial court’s conclusion that Husband engaged in economic misconduct.
{¶ 68} Finally, the trial court stated that it considered the factors in R.C.
3105.18 in determining that Wife’s attorney fees award should be treated as a
lump sum spousal support award in lieu of any periodic spousal support. An
award of spousal support will be reversed on appeal only if an abuse of
discretion is shown. Maloof-Wolf v. Wolf , Cuyahoga App. No. 94114,
2011-Ohio-701, at ¶53 citing Bechtol v. Bechtol (1990), 49 Ohio St. 3d 21, 24,
550 N.E.2d 178. R.C. 3105.18(C)(1) outlines the factors that the trial court
must consider when determining whether to order an award of spousal
support. R.C. 3105.18(C)(1) provides:
“In determining whether spousal support is appropriate and reasonable,
and in determining the nature, amount, and terms of payment, and
duration of spousal support, which is payable either in gross or in
installments, the court shall consider all of the following factors:
“(a) The income of the parties, from all sources, including, but not
limited to, income derived from property divided, disbursed, or
distributed under section 3105.171 of the Revised Code;
37
“(b) The relative earning abilities of the parties;
“(c) The ages and the physical, mental, and emotional conditions of the
parties;
“(d) The retirement benefits of the parties;
“(e) The duration of the marriage;
“(f) The extent to which it would be inappropriate for a party, because
that party will be custodian of a minor child of the marriage, to seek
employment outside the home;
“(g) The standard of living of the parties established during the
marriage;
“(h) The relative extent of education of the parties;
“(i) The relative assets and liabilities of the parties, including but not
limited to any court-ordered payments by the parties;
“(j) The contribution of each party to the education, training, or earning
ability of the other party, including, but not limited to, any party’s
contribution to the acquisition of a professional degree of the other
party;
“(k) The time and expense necessary for the spouse who is seeking
spousal support to acquire education, training, or job experience so that
the spouse will be qualified to obtain appropriate employment, provided
38
the education, training, or job experience, and employment is, in fact,
sought;
“(l) The tax consequences, for each party, of an award of spousal support;
“(m) The lost income production capacity of either party that resulted
from that party’s marital responsibilities;
“(n) Any other factor that the court expressly finds to be relevant and
equitable.”
{¶ 69} A trial court is not required to enumerate each factor in R.C.
3105.18(C)(1), but must merely provide a sufficient basis to support its award.
Kapadia v. Kapadia, Cuyahoga App. No. 94456, 2011-Ohio-2255; citing
Abram v. Abram, Medina App. No. 3233-M, 2002-Ohio-78.
{¶ 70} We find no error in the court’s analysis or conclusion on this issue.
Just as R.C. 3105.73 requires, the court considered whether an award of fees
to the parties would be equitable. The court additionally considered the
factors in R.C. 3105.18 in determining appropriateness of awarding Wife her
attorney fees in the form of spousal support. R.C. 3105.73(D) specifically
authorizes a court to designate an attorney fee award as spousal support.
Accordingly, based on the record, we find that the award of attorney fees was
neither unreasonable, arbitrary, nor unconscionable and affirm the trial
court’s decision.
39
Receiver Fees and Receiver Attorney Fees
{¶ 71} Husband argues that the trial court erred in ordering him to pay
the receiver’s outstanding fees and the receiver’s legal fees. As an initial
note, the trial court’s judgment entry denied compensation to Wife for a
claimed non-marital account seized by the receiver during the divorce. From
this account, $18,800 was applied to the receiver’s fees, $7,200 was applied to
the receiver’s attorney fees, and $2,500 was applied to the guardian ad litem’s
bill. The court denied Wife’s request for the return of these amounts and
treated them as Wife’s contribution to the litigation costs of having a receiver
and a guardian ad litem. The court ordered Husband to pay the outstanding
balance of the receiver’s fees, $42,157, and the receiver’s outstanding attorney
fees, $53,453.
{¶ 72} Husband cites absolutely no legal authority in support of his
argument that the trial court erred in assigning the remainder of these fees to
him. An appellate court may disregard an assignment of error pursuant to
App.R. 12(A)(2) if an appellant fails to cite to any legal authority in support of
an argument as required by App.R. 16(A)(7). State v. Martin (July 12, 1999),
Warren App. No. CA99-01-003, citing Meerhoff v. Huntington Mtge. Co. (1995),
103 Ohio App. 3d 164, 658 N.E.2d 1109; Siemientkowski v. State Farm Ins.,
Cuyahoga App. No. 85323, 2005-Ohio-4295. “If an argument exists that can
40
support this assigned error, it is not this court’s duty to root it out.” Cardone v.
Cardone (May 6, 1998), Summit App. Nos. 18349 and 18673.
{¶ 73} Instead of presenting a legal argument that the court erred in the
assignment of these fees, Husband argues that the Receiver essentially
provided no service of value to the divorce. Husband’s argument however is
not supported by the record. The Receiver testified in regard to his efforts at
trial that included uncovering assets, managing funds, and countless hours
spent mediating the case with both parties. (Feb. 10, 2010 Tr. 447, 401, 416.)
Additionally, the Receiver incurred legal fees generated by a number of
appeals that were initiated by Husband, many of which were dismissed as
non-final appealable orders. See, e.g., Strauss v. Strauss, Cuyahoga App. No.
92615, 2009-Ohio-5493; State, ex rel. Marc I. Strauss v. Celebrezze, Cuyahoga
App. No. 92369, 2009-Ohio-370.
{¶ 74} Receivers are entitled to compensation “as is reasonable in view of
the interest involved, the amount of skill necessary to conduct the business,
and the time and labor given to the business.” Nozik v. Mentor Lagoons, Inc.
(July 2, 1998), Lake App. No. 97-L-004, citing Postle v. Wolfram Guitar Co.
(C.P.1902), 13 Ohio Dec. 228, 229. Fixing this measure of compensation is
left to the sound discretion of the trial court. Id., citing Nowman v. Nowman
(May 12,1930), Butler App. No. 454, 8 Ohio Law. Abs. 429. Husband’s
41
argument as to this issue is without merit and further unsupported by legal
authority and is therefore disregarded.
Guardian Ad Litem Fees
{¶ 75} Husband argues that the trial court erred in ordering him to pay
“any outstanding balance owed the [guardian ad litem]” in the judgment entry
of divorce.
{¶ 76} A trial court’s appointment of a guardian ad litem and award of
fees must be upheld absent an abuse of discretion. Swanson v. Schoonover,
Cuyahoga App. Nos. 95213, 95517, 95570, 2011-Ohio-2264, citing Gabriel v.
Gabriel, 6th Dist. No. L-08-1303, 2009-Ohio-1814, ¶15. A trial court is given
considerable discretion in these matters. Id.
{¶ 77} The record reflects that Wife provided contributions to the
guardian ad litem’s fees during the pendency of the divorce. Furthermore, as
discussed above, the testimony of the guardian ad litem revealed that
throughout the divorce, Husband’s hostile behavior towards Wife in regard to
P.S. frequently necessitated intervention by the guardian ad litem. This
court has previously recognized that it may be proper to allocate the guardian
ad litem’s fees based on which party caused the work of the guardian ad litem.
Jarvis v. Witter, Cuyahoga App. No. 84128, 2004-Ohio-6628, at ¶100,
overruled on other grounds, Siebert v. Tavarez, Cuyahoga App. No. 88310,
42
2007-Ohio-2643.
{¶ 78} Under these circumstances, there is nothing to indicate that the
trial court’s decision to allocate the guardian ad litem’s fees to Husband was
unreasonable, arbitrary, or unconscionable. Therefore, we find no abuse of
discretion.
Court Costs
{¶ 79} Finally, Husband argues that the trial court erred in ordering him
to pay court costs. We review a trial court’s ruling on court costs for an abuse
of discretion. D’Hue v. D’Hue, Cuyahoga App. No. 81017, 2002-Ohio-5857, at
¶120. Civ.R. 54(D) provides that, “[e]xcept when express provision therefor is
made either in a statute or in these rules, costs shall be allowed to the
prevailing party unless the court otherwise directs.”
{¶ 80} Husband argues that the court abused its discretion by ordering
him to pay costs where there was no “prevailing party” and he testified to
having no source of income while Wife has “an ability to earn a substantial
income.” To begin, we have previously rejected the argument that a trial
court is precluded from assigning court costs to one party in a divorce where
neither party technically “prevails.” Id. Furthermore, the trial court found
Husband’s testimony regarding his lack of income to be lacking in credibility.
Based on the foregoing we cannot conclude that the trial court abused its
43
discretion in awarding costs against Husband.
{¶ 81} Husband’s second 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 lower 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.
EILEEN A. GALLAGHER, JUDGE
PATRICIA A. BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR
Appendix
Assignment of Error No. 1:
“The trial court erred and abused its discretion in its allocation of
parental rights and responsibilities by awarding Plaintiff-appellee the
status of primary residential parent and legal custodian of the parties’
minor child and by denying Defendant-appellant’s motion for shared
parenting.”
Assignment of Error No. 2:
44
“The trial court abused its discretion and erred by ordering
Defendant-appellant to pay Plaintiff-appellee the sum of $200,000 for
attorney fees, $42,157 in receiver fees, and $53,453 in receiver’s attorney
fees. Additionally, the court abused its discretion and erred by ordering
Defendant-appellant to pay any outstanding balance owed the Guardian
Ad Litem. The court also erred and abused its discretion by ordering
Defendant-appellant to pay the costs of the proceedings. The factual
conclusions upon which the trial court based the exercise of its discretion
were against the manifest weight of the evidence and was an abuse of
discretion.”
Assignment of Error No. 3:
“The trial court erred and abused its discretion when it found economic
misconduct, found that Defendant-appellant failed to prove separate
property, and by awarding Plaintiff-Appellee all of Defendant-appellant’s
separate property as a distributive award.”
Assignment of Error No. 4:
“The trial court abused its discretion by ordering Husband to replace the
529 college account.”