Walker v. Walker , 2013 Ohio 1496 ( 2013 )

[Cite as Walker v. Walker, 2013-Ohio-1496.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
TIMOTHY E. WALKER,
PLAINTIFF-APPELLANT, CASE NO. 9-12-15
v.
CARMEN L. WALKER, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Family Division
Trial Court No. 11 DR 0030
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: April 15, 2013
APPEARANCES:
Kevin P. Collins for Appellant
J.C. Ratliff, Jon L. Jensen and Jeff Ratliff for Appellee
Case No. 9-12-15
ROGERS, J.
{¶1} Plaintiff-Appellant, Timothy Walker, appeals the judgment of the
Court of Common Pleas of Marion County, Family Division, granting his
complaint for divorce against Defendant-Appellee, Carmen Walker. On appeal,
Timothy contends that the trial court committed the following three errors: (1)
finding that he engaged in financial misconduct and ordering him to pay Carmen
$7,500.00 as a result of his financial misconduct; (2) ordering him to pay
$2,058.00 to Carmen for failure to comply with trial court’s order to make
payments on the parties’ second mortgage; and (3) designating Carmen as Noah’s
residential parent for purposes of school placement. Based on the following, we
affirm in part and reverse in part the trial court’s judgment.
{¶2} Timothy and Carmen were married on September 15, 1990, and have
three children born as issue of the marriage, to wit: Samantha, born in 1991;
Allison, born in 1995; and, Noah, born in 2000.
{¶3} On January 27, 2011, Timothy filed a complaint for divorce,
requesting, in relevant part, permanent custody of Noah. In addition, Timothy
filed an Affidavit of Property, which listed the following property as martial
property: the marital residence, located at 1506 Hardin-Marion Rd., Larue, Ohio;
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six vehicles; two bank accounts; two retirement accounts; a life insurance policy;
and furniture.
{¶4} On March 1, 2011, Carmen filed her answer, requesting, in relevant
part, that she be designated as Allison and Noah’s residential parent. In addition,
Carmen filed an Affidavit of Property, which listed, among other things, numerous
firearms and a gun safe as marital property. Carmen also filed a motion requesting
the trial court to order Timothy to file a corrected and complete Affidavit of
Property.
{¶5} On March 9, 2011, the trial court granted Carmen’s motion and
ordered Timothy to file an amended Affidavit of Property. On March 15, 2011,
Timothy filed his amended Affidavit of Property, which, for the first time,
included a gun safe, valued at $500.00, as martial property. The amended
Affidavit of Property did not list any firearms.
{¶6} On April 5, 2011, the trial court issued orders pendente lite, which, in
relevant part, ordered Timothy to make payments on the parties’ second mortgage
(the “mortgage”).
{¶7} On May 27, 2011, Carmen filed a motion for contempt, requesting the
trial court to find Timothy in contempt for failure to make monthly payments on
the mortgage.
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{¶8} On September 12, 2011, Timothy filed a pretrial statement. Along
with his pretrial statement, Timothy included an affidavit which listed, in relevant
part, “[f]irearms and safe,” which he valued at $1,500.00. (Docket No. 68, p. 5).
{¶9} On October 6, 2011, the parties filed a document with the trial court
entitled “Agreement & Stipulations of the Parties.” (Docket No. 75). In it, the
parties stipulated, in relevant part, that Timothy failed to make payments on the
mortgage in contravention of the orders pendente lite.
{¶10} On January 18, 2012, the matter proceeded to the final hearing.
{¶11} On February 15, 2012, the trial court filed its judgment entry. At the
final hearing, Carmen alleged that Timothy committed financial misconduct when
he disposed of the parties’ firearms prior to filing the complaint for divorce, and
the trial court found as follows:
Both parties testified that there are thirty to thirty-one guns and a
gun safe among the assets of the marriage. There was no dispute
that all of the guns, save one, are martial property. * * * The Court
finds [Timothy] removed the guns from the marital home on January
24, 2011, three days prior to the filing of his Complaint for Divorce.
[Timothy] testified that he sold six or eight of the guns in order to
purchase a used bedroom set for his residence. The remainder he
claims to have sold to his brother for $2,000.00. [Timothy’s] March
15, 2011, Property Affidavit lists the gun safe at a value of $500.00.
The Court finds that his testimony indicating that several of the guns
are valued at $700.00 to $1,800.00 a piece causes the Court to
question the credibility of his testimony that he sold them for
$2,000.00. The Court finds that [Timothy’s] trading of guns for
used furniture and $2,000.00 grossly undervalues the asset. The
guns were not appraised due to them being made unavailable to
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[Carmen] for appraisal. The Court finds that [Timothy] committed
financial misconduct when he disposed of the guns in anticipation of
filing for divorce. Consequently[,] a value of the guns is not
possible. The Court finds however that [Timothy] shall pay,
pursuant to Ohio Revised Code §3109.05.171(E),[1] three times the
value of what he testified he sold the guns for and the affidavit of
property value of the gun safe for a total of $7,500.00 to [Carmen] as
her share of the property division with respect to the guns. Judgment
Entry, p. 7.
With respect to Timothy’s failure to make payments on the mortgage, the trial
court found as follows:
[Timothy] was ordered to pay the second mortgage pursuant to
temporary orders filed April 5, 2011. The evidence shows that
[Timothy] did not pay the months of April, May, June and July. He
did pay $50.00 towards the mortgage during the months of May,
June and July. The Court finds that he was responsible for the
second mortgage payment of $552.00 from the date of the temporary
orders, April 5, 2011 in lieu of child support. No evidence was
provided regarding the payments for the months of August forward.
The Court finds that [Timothy] did not comply with the temporary
orders for the months of April, May, June and July. [Timothy]
testified that the second mortgage payment is $552.00 per month.
He therefore should have paid $2,208.00 towards those four months.
The evidence shows he paid $150.00. The Court finds [Carmen’s]
Motion for Contempt regarding the payment of the second mortgage
to be well taken. [Timothy] shall pay [Carmen] in the amount of
$2,058.00. Id. at p. 7-8.
Finally, the trial court designated Timothy as Noah’s residential parent, and
designated Carmen as Noah’s residential parent for the purpose of school
placement.
1
We assume the trial court intended to cite to R.C. 3105.171(E), as the Revised Code does not contain a
statute numbered 3109.05.171(E).
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{¶12} Timothy timely appeals the trial court’s judgment, presenting the
following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY FINDING HE ENGAGED IN FINANCIAL
MISCONDUCT AND MAKING A DISTRIBUTIVE AWARD
TO APPELLEE.
Assignment of Error No. II
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY ORDERING HIM TO PAY $2,208.00 FOR
THE MORTGAGE.
Assignment of Error No. III
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT IN DESIGNATING APPELLEE AS THE
RESIDENTIAL PARENT FOR SCHOOL PURPOSES FOR
NOAH.
Assignment of Error No. I
{¶13} In his first assignment of error, Timothy contends that the trial court
erred when it found that he committed financial misconduct, and when it ordered
him to pay Carmen $7,500.00 as a result of his financial misconduct. In particular,
Timothy argues that the evidence does not support the trial court’s finding of
financial misconduct, and that the trial court’s award of $7,500.00 is contrary to
law. We disagree with Timothy’s contention concerning the trial court’s finding
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of financial misconduct, but agree that the trial court’s award of $7,500.00 is
contrary to law.
Financial Misconduct
{¶14} The trial court has discretion in determining whether a spouse
committed financial misconduct, and an appellate court will only reverse that
determination if it is against the manifest weight of the evidence. E.g., Eggeman
v. Eggeman, 3d Dist. No. 2-04-06, 2004-Ohio-6050, ¶ 19. Judgments supported
by some competent, credible evidence going to all the essential elements of the
case will not be reversed by a reviewing court as being against the manifest weight
of the evidence. C. E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279, 280
(1978). “[W]hen reviewing a judgment under a manifest-weight-of-the-evidence
standard, a court has an obligation to presume that the findings of the trier of fact
are correct.” State v. Wilson, 113 Ohio St.3d 382, 387, 2007-Ohio-2202, ¶ 24,
citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984). This
presumption arises because the trial court is in the best position “to view the
witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.”
Seasons Coal at 80. Accordingly, “[a] reviewing court should not reverse a
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decision simply because it holds a different opinion concerning the credibility of
the witnesses and evidence submitted before the trial court.” Id. at 81.
{¶15} In divorce proceedings, a trial court must classify property as marital
or separate property. R.C. 3105.171(B). Then, the trial court must divide the
marital property equally or, if an equal division is inequitable, the court must
divide the marital property equitably. R.C. 3105.171(C)(1).
{¶16} A trial court, however, may find an equal division of marital property
inequitable if one spouse demonstrates that the other has committed financial
misconduct.
If a spouse has engaged in financial misconduct, including, but not
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. R.C. 3105.171(E)(4).
“Financial misconduct requires more than just dishonest behavior, it requires a
wrongdoing that interferes with a spouse’s property rights and results in profit to
the wrongdoer from the alleged misconduct or stems from an intentional act meant
to defeat the other spouse’s distribution of assets.” Thomas v. Thomas, 5th Dist.
No. 11CAF090079, 2012-Ohio-2893, ¶ 63, citing Eggeman, 2004-Ohio-6050 at ¶
24; Jacobs v. Jacobs, 4th Dist. No. 02CA2846, 2003-Ohio-3466. “To find
financial misconduct, a court must look to the reasons behind the questioned
activity or the results of the activity and determine whether the wrongdoer profited
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from the activity or intentionally dissipated, destroyed, concealed, or fraudulently
disposed of the other spouse’s assets.” Id. For example, courts have affirmed
findings of financial misconduct where a spouse diminishes marital assets without
the knowledge or permission of the other spouse, e.g., Hoffman v. Hoffman, 10th
Dist. No. 94APF01-48 (Aug. 11, 1994), or diminishes martial assets during the
parties’ permanent separation, e.g., Babka v. Babka, 83 Ohio App.3d 428, 436 (9th
Dist. 1992) (upheld finding of financial misconduct where offending spouse
liquidated joint bank account just before the parties’ divorce); see also Rinehart v.
Rinehart, 4th Dist. No. 96 CA 10 (May 18, 1998) (finding the time frame in which
the alleged financial misconduct occurs may often demonstrate wrongful scienter).
Bearing this authority in mind, we turn our attention to the record before us.
{¶17} During the final hearing, Carmen introduced a document containing
a handwritten list of Timothy’s firearms (the “list”), which was later admitted into
evidence. The list identified a total of 30 firearms by their make, model, and serial
number. Timothy testified that the list was created approximately four or five
years prior to the final hearing. He explained that he directed his daughter,
Allison, to create the list after the martial residence had been burglarized.
{¶18} Timothy vacated the marital residence on or about January 7, 2011,
and moved to his father’s residence, located at 342 E. Farming St., Marion, Ohio.
Timothy testified that upon vacating the marital residence he removed, among
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other things, a gun safe and all of the firearms. Timothy conceded that all the
firearms he took from the marital residence were acquired during the marriage.
Though the list identified 30 firearms, Timothy testified that he owned fewer than
30 firearms at the time he vacated the marital residence. Timothy, however, did
not specify the exact number of firearms he owned at the time he vacated the
marital residence.
{¶19} Prior to filing his complaint for divorce, Timothy traded
approximately six or eight of the firearms to Kimberly Hall and her husband
(collectively “the Halls”). Timothy explained that he traded the firearms for a
bedroom suite for his eldest daughter, Samantha, who resided with him. Timothy
indicated that he and the Halls did not assign a value to the firearms, nor did he
have any intention of trading the bedroom suite back to the Halls in exchange for
the firearms.
{¶20} Like Timothy, Kimberly testified that she and her husband traded a
bedroom suite, which consisted of a dresser and a queen-size bed, to Timothy in
exchange for approximately six firearms. Kimberly explained that she could not
recall the exact date the transfer occurred, but testified that it occurred shortly after
Timothy had moved out of the marital residence because he was concerned about
obtaining some bedroom furniture for his daughter, Samantha. During redirect,
the following relevant exchange occurred:
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Q: When Tim[othy] appears on your premises and you felt that he
was at least out of his house, which did he appear to have more of an
interest in, the guns and their value or getting some furniture for his
daughter to sleep on?
A: Getting furniture.
Q: How do you know that?
A: Because he was - - he sat at my kitchen table and cried.
Hearing Tr., p. 169-70.
Kimberly indicated that she did not know the value of the bedroom suite, and that
she and her husband have no intention of getting the bedroom suite back or
returning the firearms to Timothy.
{¶21} As for the remainder of the firearms, Timothy testified that he sold
them to his brother. Timothy recalled selling the firearms on or about January 10,
2011. Despite his uncertainty concerning the date of sale, Timothy, when asked
whether he sold the firearms before or after he filed his complaint for divorce,
testified that he sold them “way before.” Hearing Tr., p. 222. Timothy testified
that he received approximately $2,000.00 in exchange for the firearms.
{¶22} On cross-examination, Timothy was questioned about the values of
the firearms on the list. Timothy testified that the most valuable firearm on the list
was worth $700.00. As for the values of the remaining firearms, the following
relevant exchange occurred:
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Q: * * * But values of guns, I mean, some of these guns were over
thousand dollar shotguns, aren’t they?
A: Like - -
Q: You’ve got the Brownings, you’ve got the Charles Daly?
***
A: Charles Daly, [$]450[.00].
Q: How much is the Encore?
A: The Encore I think we paid $600.00 for.
Q: The Winchester Super X Model 1?
A: I think that was $300.00. Hearing Tr., p. 260-1.
After this exchange, defense counsel continued to question Timothy about the
value of particular firearms on the list, but Timothy testified that he was unsure of
their value.
{¶23} Finally, Timothy testified that he sold the gun safe for $100.00 in
January 2011. When asked why the gun safe appeared on his amended Affidavit
of Property, Timothy asserted that his then-attorney made a mistake.
{¶24} Carmen testified that Timothy removed the firearms from the marital
residence on January 24, 2011. Though Carmen conceded that she was not aware
of the “specific value” of the firearms, she testified that she researched the subject.
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Based on her research, Carmen indicated that $11,000.00 was a conservative value
of the firearms.
{¶25} Upon review, we find that the record contained some competent,
credible evidence upon which the trial court could conclude that Timothy
committed financial misconduct when he sold and traded the parties’ firearms and
gun safe. In particular, the timing and secretive nature of the transactions
demonstrate the wrongful intent necessary for a finding of financial misconduct.
Timothy maintains that he exchanged the firearms and gun safe to support himself
and his children, thus suggesting that the timing of the transactions is not
indicative of any wrongful intent. Timothy’s argument, however, omits a crucial
fact, Carmen’s lack of knowledge concerning the transactions. There is no
evidence that Timothy, who was clearly aware that the firearms and gun safe were
marital assets, secured Carmen’s permission to sell the firearms and gun safe or
otherwise informed Carmen of their sale. In fact, the record reveals that Carmen
did not become aware of the transactions until sometime after the complaint for
divorce was filed. Aside from avoiding Carmen’s objection to the sale of the
firearms and gun safe, we cannot imagine, nor has Timothy provided, any
reasonable explanation for the secretive transactions. As such, we find that the
timing and secretive nature of the transactions sufficiently demonstrate the
wrongful intent necessary for a finding of financial misconduct.
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{¶26} Furthermore, the record reveals that the value of the firearms far
exceeded the value Timothy received in exchange for the same. According to
Timothy, four of the firearms on the list had a total value of $2,050.00. Though
four of the 30 firearms on the list had a total value of $2,050.00, Timothy only
received a used bedroom suite and $2,000.00 in exchange for all 30 guns. Also,
Timothy only received $100.00 for the gun safe, which he later valued at $500.00.
Clearly, Timothy grossly undervalued the firearms and gun safe, and consequently
dissipated a significant portion of Carmen’s property interest in the same.
{¶27} Given the foregoing, we find that the trial court’s determination that
Timothy committed financial misconduct was not against the manifest weight of
the evidence.
$7,500.00 Award
{¶28} Timothy contends that the trial court’s award is contrary to law.
Specifically, Timothy argues that the trial court erroneously applied R.C.
3109.171(E)(5) in determining the award. We agree.
{¶29} Generally, a trial court’s decision to compensate a spouse for the
other spouse’s financial misconduct is reviewed for an abuse of discretion.
Eggeman, 2004-Ohio-6050, ¶ 23, citing Thill v. Thill, 2d Dist. No. 2001-CA-23
(Aug. 17, 2001). However, in this matter, the error raised by Timothy presents an
issue of law. Questions of law are reviewed de novo. In re Guardianship of
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Elliott, 3d Dist. No. 12-10-02, 2010-Ohio-5405, ¶ 17, citing Ohio Bell Tel. Co. v.
Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992); Castlebrook, Ltd. v.
Dayton Properties Ltd. Partnership, 78 Ohio App.3d 340, 346 (2d Dist. 1992)
(“where a trial court’s order is based on an erroneous standard or a
misconstruction of the law, * * * an appellate court may properly substitute its
judgment for that of the trial court”).
{¶30} Having properly found that Timothy committed financial
misconduct, the trial court could have compensated Carmen “with a distributive
award or with a greater award of marital property.” R.C. 3105.171(E)(4). Review
of the judgment entry, however, reveals that the trial court neither compensated
Carmen with a distributive award nor a greater award of marital property. Instead,
the trial court multiplied $2,500.00 three times to arrive at $7,500.00.2 Given the
trial court’s explanation of its award, we find that it applied R.C. 3105.171(E)(5)
in determining the award, and that doing so was contrary to law.
{¶31} R.C. 3105.171(E)(5) provides:
If a spouse has substantially and willfully failed to disclose marital
property, separate property, or other assets, debts, income, or
expenses as required under division (E)(3) of this section, the court
may compensate the offended spouse with a distributive award or
with a greater award of marital property not to exceed three times
the value of the marital property, separate property, or other assets,
2
According to the trial court’s judgment entry, the $2,500.00 figure represents the value of the gun safe
($500.00) and the proceeds Timothy received from selling the firearms to his brother ($2,000.00).
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debts, income, or expenses that are not disclosed by the other
spouse.
Given the plain language of division (E)(5), the trial court may only impose the
penalty provided therein if the offending spouse violates division (E)(3), which
provides: “The court shall require each spouse to disclose in a full and complete
manner all marital property, separate property, and other assets, debts, income, and
expenses of the spouse.” R.C. 3105.171(E)(3).
{¶32} Contrary to Appellee’s assertions, Timothy did not violate division
(E)(3). It is undisputed, and the trial court found, that Timothy sold and traded all
of the parties’ firearms prior to filing the complaint for divorce.3 Accordingly,
Timothy was not required to disclose the firearms, as they were no longer an asset
of either party.4 Since Timothy was not required to disclose the firearms, he did
not violate division (E)(3). As such, the trial court erred as a matter of law when it
applied division (E)(5) to award Carmen $7,500.00.
{¶33} Carmen maintains that any error in how the trial court arrived at the
$7,500.00 award is harmless. In particular, Carmen argues that $7,500.00
represents roughly half of the total value of the firearms on the list. In reaching
this conclusion, Carmen relies on what she asserts is a fair average value for each
3
Specifically, the trial court found “that [Timothy] committed financial misconduct when he disposed of
the guns in anticipation of filing for divorce.” (Emphasis added.) Judgment Entry, p. 7.
4
Timothy was, however, required to disclose the assets he received in exchange for the firearms, since
those assets would be classified as marital property. While there is no finding as to whether Timothy made
this disclosure, it appears, based on our independent review of the record, that Timothy did disclose the
assets he received in exchange for the firearms.
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of the firearms on the list, i.e., $512.50. This value is derived from dividing the
total value of the firearms Timothy valued during the hearing ($2,050.00) by the
number of firearms Timothy valued (4). When Carmen’s average value of
$512.50 is multiplied by 30 firearms we reach a total value of $15,375.00 for all
the firearms on the list.
{¶34} While Carmen’s arithmetic is correct, we find her reasoning too
speculative. Absent the trial court’s erroneous application of division (E)(5), it
appears that the trial court would have awarded Carmen $2,500.00 as a distributive
award, not $7,500.00 as Carmen maintains. Under another scenario, the $7,500.00
award would likely not be justified if the trial court were to accept Carmen’s
testimony concerning the total value of the firearms. As previously mentioned,
Carmen testified that the total value of the firearms on the list was approximately
$11,000.00. If the trial court accepted this testimony, then clearly an award of
$7,500.00 would be problematic, as it would be an inequitable distribution of the
asset. In sum, there is too much uncertainty as to whether the $7,500.00 award is
appropriate. As the record stands, there are conceivably several amounts that
would be appropriate as an award to Carmen. As such, we cannot conclude that
trial court’s error is harmless, and remand the matter to the trial court to determine
an appropriate award pursuant to R.C. 3105.171(E)(4).
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{¶35} Accordingly, we overrule Timothy’s first assignment of error with
respect to the trial court’s finding that he committed financial misconduct, but
sustain the assignment of error with respect to the trial court’s award of $7,500.00
to Carmen.
Assignment of Error No. II
{¶36} In his second assignment of error, Timothy contends that the trial
court erred when it ordered him to pay Carmen $2,058.00 after finding him in
contempt. Specifically, Timothy argues that the evidence does not support the
trial court’s award of $2,058.00 to Carmen. We disagree.
{¶37} Contempt of court is a disregard of, or disobedience to, the orders or
commands of judicial authority “which brings the administration of justice into
disrespect, or which tends to embarrass, impede or obstruct a court in the
performance of its functions.” Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55(1971), paragraph one of the syllabus. “A finding of civil contempt requires clear
and convincing evidence that the alleged contemnor has failed to comply with the
court’s prior orders.” Ham v. Ham, 3d Dist. No. 16-09-04, 2009-Ohio-3668, ¶ 30,
quoting Moraine v. Steger Motors, Inc., 111 Ohio App.3d 265, 268 (2d Dist.
1996). Clear and convincing evidence is “[t]he measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the
allegations sought to be established. It is intermediate, being more than a mere
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preponderance, but not to the extent of such certainty as required beyond a
reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”
In re Estate of Haynes, 25 Ohio St.3d 101, 103-04 (1986).
{¶38} While there must be clear and convincing evidence for the trial court
to find an individual in contempt, an appellate court reviews a finding of
contempt, including a trial court’s imposition of any penalty, for an abuse of
discretion. Whitman v. Whitman, 3d Dist. No. 5-11-20, 2012-Ohio-405, ¶ 52,
citing Fidler v. Fidler, 10th Dist. No. 08AP-284, 2008-Ohio-4688, ¶ 11. A trial
court will be found to have abused its discretion when its decision is contrary to
law, unreasonable, not supported by the evidence, or grossly unsound. State v.
Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 16-18, citing Black’s Law Dictionary
11 (8th Ed.2004). When applying the abuse of discretion standard, a reviewing
court may not simply substitute its judgment for that of the trial court. State v.
Nagle, 11th Dist. No. 99-L-089 (June 16, 2000), citing Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). Bearing this authority in mind, we turn our attention
to the record before us.
{¶39} As previously mentioned, on April 5, 2011, the trial court issued
orders pendente lite that required Timothy, in relevant part, to make payments on
the parties’ mortgage. On May 27, 2011, Carmen filed a motion for contempt
requesting the trial court to find Timothy in contempt for failure to make monthly
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payments on the mortgage. On October 6, 2011, a document entitled “Agreement
& Stipulations of the Parties” was filed with the trial court. In it, the parties made
the following relevant agreements and stipulations:
1. [Timothy] to immediately pay the monthly second mortgage
payment on the marital residence. [Timothy] shall immediately (by
Oct. 7, 2011) pay the Sept[ember] payment. The payment is
$552.00 per month. [Timothy] shall make all future monthly
payments timely. All arrearages [and] money [paid] by [Carmen]
are reserved for final [hearing] as to allocation [and] reimbursement.
2. Issue of contempt for [Timothy’s] failure to pay [second]
mortgage is agreed as follows. [Timothy] has failed to pay as
ordered. (Docket No. 75, p. 2).
The document containing these agreements and stipulations was signed by the
parties and their counsel.
{¶40} During the final hearing, Timothy testified that he did not make three
full monthly payments on the mortgage after the trial court issued the orders
pendente lite. Timothy explained that he was financially unable to make full
payments on the mortgage, but did make payments of $50.00 on those months he
was unable to make full payments. On cross-examination, the following relevant
exchange occurred as follows:
Q: And did you post a $50.00 payment in May and a $50.00
payment in July?
A: Yeah.
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Q: You understand Carmen was paying the payment on that for all
those months?
A: Um-hum.
Q: Correct?
A: I don’t know.
Q: You don’t have any information one way or the other?
A: I don’t - - I know they was behind. Hearing Tr., p. 289.
Timothy further testified that he paid $1,657.00 to make up for the three mortgage
payments he could not pay in full. The record, however, contains no evidence
corroborating this testimony.
{¶41} Carmen testified that the April mortgage payment was due on the
April 20, 2011, and that Timothy did not make the April mortgage payment.
Carmen also testified that Timothy did not make full mortgage payments in May,
June, or July 2011, but did pay $50.00 towards the mortgage in May and July.
Contrary to Timothy’s testimony, Carmen testified that she made payments on the
mortgage during those months he did not make full payments.
{¶42} Having considered the evidence presented during the hearing and the
parties’ stipulations, we find that the trial court did not abuse its discretion when it
ordered Timothy to pay Carmen $2,058.00. First, there was evidence that
Timothy did not make full monthly mortgage payments for April, May, June, and
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July 2011. Since the parties stipulated that the monthly mortgage payment was
$552.00, the trial court appropriately determined that Timothy should have paid a
total of $2,208.00 towards the mortgage for those months he did not make full
payments. Second, there was evidence that Timothy paid $50.00 towards three of
the four mortgage payments he did not pay in full. Accordingly, the trial court
appropriately subtracted $150.00 from $2,208.00, which reduced the total amount
to $2,058.00. Finally, we acknowledge that there is a dispute as to whether
Carmen made payments on the mortgage during the months at issue or whether
Timothy made up for those missed payments after July 2011. Clearly, the record
contains evidence supporting both versions of facts. However, in this instance, the
trial court found Carmen’s testimony more credible, and thus ordered Timothy to
pay Carmen $2,058.00. Since the record contains competent and credible
evidence to support the trial court’s findings, we cannot say it erred, or otherwise
abused its discretion, when it ordered Timothy to pay Carmen $2,058.00.
{¶43} Accordingly, we overrule Timothy’s second assignment of error.
Assignment of Error No. III
{¶44} In his final assignment of error, Timothy contends that the trial court
erred when it designated Carmen as Noah’s residential parent for purposes of
school placement. Specifically, Timothy argues that there is no evidence that
remaining in the Elgin School District is in Noah’s best interests. We disagree.
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{¶45} Initially, we note that Timothy does not cite to the record in support
of his argument. Since the record contains evidence that supports the trial court’s
determination, as well as militates against the same, we find Timothy’s failure to
cite to the record violative of App.R. 16(A)(7), which requires appellants to
provide “[a]n argument containing the contentions of the appellant * * * and the
reasons in support of the contentions, with citations to the * * * parts of the record
on which appellant relies.” Although App.R. 12(A)(2) gives us the authority to
disregard this deficient assignment of error, we will address its merits in the
interests of justice. See State v. Galbraith, 3d Dist. No. 9-11-61, 2012-Ohio-5231,
¶ 15.
{¶46} Decisions concerning child custody matters rest within the sound
discretion of the trial court. Wallace v. Willoughby, 3d Dist. No. 17-10-15, 2011-
Ohio-3008, ¶ 22, citing Miller v. Miller, 37 Ohio St.3d 71, 74 (1988). “Where an
award of custody is supported by a substantial amount of credible and competent
evidence, such an award will not be reversed as being against the weight of the
evidence by a reviewing court.” Barto v. Barto, 3d Dist. No. 5-08-14, 2008-Ohio-
5538, ¶ 25, quoting Bechtol v. Bechtol, 49 Ohio St.3d 21 (1990), syllabus.
Accordingly, an abuse of discretion must be found in order to reverse the trial
court’s award of child custody. Id., citing Masters v. Masters, 69 Ohio St.3d 83,
85 (1994).
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{¶47} As previously mentioned, a trial court will be found to have abused
its discretion when its decision is contrary to law, unreasonable, not supported by
the evidence, or grossly unsound. Boles, 2010-Ohio-278, at ¶ 16-18, citing
Black’s Law Dictionary 11 (8th Ed.2004). When applying the abuse of discretion
standard, a reviewing court may not simply substitute its judgment for that of the
trial court. Nagle, 11th Dist. No. 99-L-089, citing Blakemore, 5 Ohio St.3d at 219.
{¶48} Where neither party files a pleading or motion requesting shared
parenting in accordance with R.C. 3109.04(G), the trial court shall do the
following:
* * * the court, in a manner consistent with the best interest of the
children, shall allocate the parental rights and responsibilities for the
care of the children primarily to one of the parents, designate that
parent as the residential parent and the legal custodian of the child,
and divide between the parents the other rights and responsibilities
for the care of the children, including, but not limited to, the
responsibility to provide support for the children and the right of the
parent who is not the residential parent to have continuing contact
with the children. R.C. 3109.04(A)(1); See Frey v. Frey, 3d Dist.
No. 5-06-36, 2007-Ohio-2991, ¶ 28.
In making an allocation of parenting rights, the trial court must consider the best
interests of the children. R.C. 3109.04(B)(1). In determining the children’s best
interests, the trial court is required to consider all relevant factors, including those
specifically enumerated under R.C. 3109.04(F)(1). Accordingly, we must
examine the record to determine whether the trial court considered all of the
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necessary factors listed in R.C. 3109.04(F)(1), and whether there is competent,
credible evidence supporting the trial court’s determination that designating
Carmen as Noah’s residential parent for the purpose of school placement was in
Noah’s best interest.
{¶49} Upon review of the record, we find that the trial court considered the
requisite factors listed in R.C. 3109.04(F)(1), and that there was competent,
credible evidence that designating Carmen as Noah’s residential parent for the
purpose of school placement was in Noah’s best interest.
{¶50} It appears that the trial court designated Carmen as Noah’s
residential parent for the purpose of school placement to ensure that Noah had
some stability in his life. The trial court found, and the record reveals, that “[t]he
turmoil of the divorce and the uncertainty of the outcome have had a negative
impact on [Noah].” Judgment Entry, p. 5. The only constant in Noah’s life was
school. Indeed, the record reveals that Noah has attended Elgin schools his entire
life, is well adjusted to the school environment, has friends through school, and
participates in school sponsored extracurricular activities. In light of the turmoil
caused by the parties’ divorce, it is reasonable to conclude that Noah’s continued
attendance in Elgin schools is in his best interest. Since Timothy lives outside of
the Elgin school district, the trial court designated Carmen as Noah’s residential
parent for the purpose of school placement. Under the circumstances of this
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matter, we find that this limited designation is reasonable, as it ensures that Noah
will continue to attend Elgin schools and consequently have some stability in his
life. Consequently, we find Timothy’s argument unavailing.
{¶51} Accordingly, we overrule Timothy’s third assignment of error.
{¶52} Having found no error prejudicial to Timothy, in the particulars
assigned and argued in his second and third assignments of error, but having found
error prejudicial to Timothy, in the particulars assigned and argued in his first
assignment of error, we affirm in part and reverse in part the trial court’s judgment
and remand for further proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
PRESTON, P.J. and SHAW, J., concur.
/jlr
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