Chaney v. Chaney , 2022 Ohio 1442 ( 2022 )

[Cite as Chaney v. Chaney, 2022-Ohio-1442.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
CHRISTOPHER CHANEY, :
Appellant, : CASE NO. CA2021-09-087
: OPINION
- vs - 5/2/2022
:
CHERYL CHANEY, :
Appellee. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 20DR41732
Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle; Schiavone Law Office, and Frank J.
Schiavone IV, for appellant.
Law Offices of Andrea N. Hicks, and Andrea N. Hicks; and Andrew P. Meier, for appellee.
S. POWELL, P.J.
{¶ 1} Appellant, Christopher Chaney ("Husband"), appeals from the judgment entry
and decree of divorce issued by the Warren County Court of Common Pleas, Domestic
Relations Decision, granting him a divorce from his now ex-wife, appellee, Cheryl Chaney
("Wife"). For the reasons outlined below, we affirm.
Warren CA2021-09-087
The Parties
{¶ 2} On April 21, 2001, Husband and Wife were married in Park City, Utah. There
were two children born issue of the marriage, boys, A.C., born on March 27, 2002, and V.C.,
born on August 11, 2008. From a previous relationship, Husband is the biological father of
M.C., a girl, born on April 29, 1992. Also from a previous relationship, Wife is the biological
mother of B.C., a girl, born on July 28, 1999. Given their ages, there is no dispute that V.C.
is Husband's and Wife's only remaining unemancipated child, whereas A.C., M.C., and B.C.
are now all emancipated adults. There is also no dispute that A.C. and B.C. are currently
enrolled in college, with A.C. attending school out of state on a full athletic scholarship.
Facts and Procedural History
{¶ 3} On February 13, 2020, Husband filed a complaint for divorce from Wife.
Shortly thereafter, on February 21, 2020, Wife filed an answer and counterclaim for divorce
from Husband. On September 15, 2020, a one-day final divorce hearing was held on the
matter before a domestic relations court magistrate. During this hearing, the magistrate
heard testimony from just two witnesses: Husband and Wife. On December 2, 2020, the
magistrate issued a decision addressing, among other things, the division of Husband's and
Wife's property, spousal support, and parental rights and responsibilities of their lone
remaining unemancipated child, V.C.
{¶ 4} On December 16, 2020, Husband filed objections to the magistrate's decision.
Husband supplemented his objections to the magistrate's decision on March 1, 2021. Upon
reviewing Husband's objections, which included an objection to the magistrate's decision
ordering Husband to pay Wife spousal support, the trial court issued a decision overruling
Husband's objections. The trial court issued this decision on April 6, 2021. On August 20,
2021, the domestic relations court issued a judgment entry and decree of divorce. Husband
now appeals from that judgment entry, raising six assignments of error for review.
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Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ERRED IN AWARDING TO WIFE EXPENSES
INCURRED BY HER AFTER THE TERMINATION OF THE MARRIAGE.
{¶ 6} In his first assignment of error, Husband argues the trial court erred by
ordering him to reimburse Wife for certain expenses she incurred after the stipulated de
facto termination date of their marriage, March 15, 2020. We disagree.
Payment for Wife's Expenses from March 15, 2020 to June 12, 2020
{¶ 7} Husband initially argues the trial court erred by ordering him to reimburse Wife
for all of the expenses she incurred between March 15, 2020 to June 12, 2020. To support
this claim, Husband argues that it was improper for the trial court to order him to reimburse
Wife for these expenses because those were Wife's "expenses paid or incurred by her after
the termination of the marriage." However, as the record indicates, Husband and Wife
stipulated that Wife could make a claim seeking reimbursement from Husband for expenses
that she incurred after the de facto termination date of their marriage.1 This would include
all of the expenses Wife incurred between March 15, 2020 to June 12, 2020.
{¶ 8} The record also indicates that the trial court had previously ordered Husband
to continue to "pay all household expenses" as part of its temporary spousal support order.
This included Husband paying the parties' mortgage, home utilities, cell phone bills, and
"the children's expenses." Specifically, as the trial court stated in that temporary order:
Effective June 12, 2020, [Husband] shall pay $500.00 per week
in spousal support to [Wife]. Additionally, [Husband] shall pay
all household expenses including the mortgage, utilities and cell
phone bills. Spousal support and the payment of expenses,
1. This stipulation was read into the record by Wife's counsel as follows: "We agreed that the date of
termination of marriage will be March 15, 2020," but that "each part[y] would… could ask for reimbursement
payment, expenses, distribution of bonuses, commission, or [restricted stock units] otherwise agreed upon by
the parties." When asked by the trial court if Husband had "any additions or corrections to the agreements"
that Wife's counsel had read into the record, Husband's counsel stated, "No, I don't." Husband later testified
on cross-examination when asked by Wife's counsel if he had heard, understood, and agreed to the stipulation
as it was read into the record, "I did" and "I do."
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including the payment of the children's expenses shall be
retroactively reviewable.
{¶ 9} When considering the overall circumstances surrounding Husband's and
Wife's marriage, as well as the trial court's temporary spousal support order that specifically
ordered Husband to pay "all household expenses," we find no error with the trial court's
decision ordering Husband to reimburse Wife for all of the expenses she incurred between
March 15, 2020 to June 12, 2020. In so holding, we note that Husband had previously paid
for all of Wife's expenses that she had incurred during their nearly 20-year marriage. This
was because, as the record indicates, Wife had not worked outside of the home since
quitting her job and moving to Utah with Husband in 2001. This move to Utah undoubtedly
resulted in Wife's loss of income production given the significant marital responsibilities that
Wife undertook during the marriage. This move, and subsequent return to Ohio in 2004,
also undoubtedly benefitted Husband's career aspirations and earning capacity given
Husband's testimony that he was expecting to earn over $250,000 from his employer for
the year 2020. Therefore, for these reasons, we find no error in the trial court's decision
ordering Husband to reimburse Wife for all of the expenses she incurred between March
15, 2020 to June 12, 2020. Husband's argument otherwise lacks merit.
Payment for Wife's Expenses from June 12, 2020 to August 28, 2020
{¶ 10} Husband also argues the trial court erred by ordering him to reimburse Wife
for 63% of the expenses she incurred between June 12, 2020 to August 28, 2020. To
support this claim, Husband argues that "[n]o rational basis based on any fact can be
discerned for the 63/37% division of the second term of assigned expenses." However, as
the record indicates, the trial court ordered Husband to reimburse Wife for 63% of the
expenses she incurred between June 12, 2020 to August 28, 2020 because that was
Husband's percentage of his and Wife's combined income during that two-and-one-half
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month period.2 Therefore, when again considering the overall circumstances surrounding
Husband's and Wife's marriage, as well as Husband's and Wife's respective finances
between June 12, 2020 to August 28, 2020, we find no error in the trial court's decision
ordering Husband to reimburse Wife for 63% of the expenses she incurred between June
12, 2020 to August 28, 2020. Husband's argument otherwise lacks merit.
Payment for Wife's Cell Phone Bill
{¶ 11} Husband further argues the trial court erred by ordering him to reimburse Wife
for payment of her cell phone bill.3 This is because, according to Husband, "[t]o the extent
the award of expenses for Wife's phone bill, as a separate part of her claim, and again as
part of her credit card debt where she paid it, and not applying credit for Husband's
payments to one or both, is making Husband pay twice." That is to say, Husband argues
the trial court gave Wife "double-credit" for payment of her cell phone bill, once as a general
household expense and again as a separate cell phone expense. However, when faced
with this exact same argument as part of Husband's objections to the magistrate's decision,
the trial court found Wife was not getting "double-credit" for payment of her cell phone bill.
This is because, as the trial court found, the magistrate had given Husband credit for paying
Wife's cell phone bill as of September 1, 2020. We find no error in the trial court's decision.
Therefore, just as the trial court found, Husband's argument alleging the trial court erred by
ordering him to reimburse Wife for payment of her cell phone bill lacks merit.
2. Wife obtained employment on May 20, 2020 after having not worked full-time outside of the home since
March of 2001. Wife received her first paycheck from her employer on May 30, 2020. The money Wife
received from that paycheck, however, was a nominal amount of $237.40.
3. The record indicates Husband was ordered to reimburse Wife a total of $568.61 for the payment of her cell
phone bill for the period beginning on March 30, 2020 to August 28, 2020. This equates to approximately
$113.72 per month for those five months. Husband was then ordered to pay 63% of Wife's cell phone bill for
the time period beginning on September 1, 2020 to December 31, 2020. Effective January 1, 2021, Wife was
ordered to pay her own cell phone.
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Payment for A.C.'s College Expenses
{¶ 12} Husband additionally argues the trial court erred by ordering him to reimburse
Wife "for voluntarily paying moving and other expenses" she incurred moving their older,
now emancipated adult son, A.C., into his college dorm room.4 To support this claim,
Husband argues the trial court lacked jurisdiction to order him to reimburse Wife for a portion
of those expenses because A.C. is no longer a minor. However, at the divorce hearing,
Husband specifically testified and agreed that it would be appropriate for him to reimburse
Wife a portion of the expenses she incurred taking A.C. to college. Specifically, as Husband
testified on cross-examination:
Q: Do you think it would be appropriate for you to pay a portion
of the cost[s] that were incurred by [Wife] for taking [A.C.] to
college?
A: Yeah, I do.
Q: And do you feel it was appropriate…
A: Not extravagant costs, but yes. I do think [A.C.'s] costs and
[Wife's], maybe, to take [A.C.] down there. Yeah.
Q: And what about costs for things that he needed for his dorm,
like bedding and towels and stuff like that?
A: Yeah. Whatever he needs. Yeah. I don't know what that is,
but I will do what I have to do for him. Yeah. I've already done
a lot.
{¶ 13} Because Husband specifically testified and agreed that it would be
appropriate for him to reimburse Wife for a portion of the expenses she incurred taking A.C.
to college, the trial court found "the [m]agistrate had every reason to require [Husband] to
do as he promised." We find no error in the trial court's decision. Therefore, just as the trial
4. The record indicates Husband was ordered to reimburse Wife a total of $503.28 for A.C.'s college expenses,
which was 63% of the total expenses Wife incurred moving A.C. into his college dorm room during the summer
of 2020.
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court found when ruling on Husband's objections to the magistrate's decision, we find no
merit to Husband's argument alleging the trial court erred by ordering him to reimburse Wife
for a portion of the expenses she incurred moving their older, now emancipated adult son,
A.C., into his college dorm. Husband's claim otherwise lacks merit.
{¶ 14} For the reasons outlined above, and finding no merit to any of the four
arguments Husband raised herein in support of Husband's first assignment of error,
Husband's first assignment of error lacks merit and is overruled.
Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED IN DIVIDING THE PARTIES' INTEREST IN THE
MARITAL REAL ESTATE.
{¶ 16} In his second assignment of error, Husband argues the trial court erred by
rejecting his claim that he had a "pre-marital interest" in the marital home he and Wife
purchased in 2004 located in Mason, Warren County, Ohio. We disagree.
{¶ 17} "In divorce proceedings, the Revised Code requires the domestic relations
court to determine what constitutes marital property and what constitutes separate
property." Bauer v. Bauer, 12th Dist. Warren Nos. CA2019-04-033 and CA2019-04-040,
2020-Ohio-425, ¶ 24, citing R.C. 3105.171(B). "Marital property" does not include any
separate property. R.C. 3105.171(A)(3)(b). "Marital property" is instead defined by R.C.
3105.171(A)(3)(a)(i) to include:
[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.
{¶ 18} "Marital property" is also defined by R.C. 3105.171(A)(3)(a)(ii) to include:
[a]ll interest that either or both of the spouses currently has in
any real or personal property, 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.
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{¶ 19} "Separate property" is defined by R.C. 3105.171(A)(6)(a)(ii) to mean "[a]ny
real or personal property or interest in real or personal property that was acquired by one
spouse prior to the date of the marriage." "Separate property" is also defined by R.C.
3105.171(A)(6)(a)(ii) to mean "[a]ny real or personal property or interest in real or personal
property that was acquired by one spouse prior to the date of the marriage." "The
commingling of separate property with other property of any type does not destroy the
identity of the separate property as separate property, except when the separate property
is not traceable." R.C. 3105.171(A)(6)(b). "Thus, when one spouse contributes equity in
the parties' marital home and that spouse can trace the equity to his or her pre-marital funds,
those funds remain the spouse's separate property." Jones v. Jones, 4th Dist. Athens No.
07CA25, 2008-Ohio-2476, ¶ 21, citing Moore v. Moore, 12th Dist. Brown No. CA2000-03-
006, 2000 Ohio App. LEXIS 5648 (Dec. 4, 2000).
{¶ 20} "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." Casper v. Casper, 12th Dist. Warren Nos. CA2012-12-128 and CA2012-12-129,
2013-Ohio-4329, ¶ 16, citing Zollar v. Zollar, 12th Dist. Butler No. CA2008-03-065, 2009-
Ohio-1008, ¶ 9. "'Preponderance of the evidence' means the greater weight of the
evidence, or evidence that leads the trier of fact to find that the existence of the contested
fact is more probable than its nonexistence." Mather v. Hilfinger, 12th Dist. Warren No.
CA2020-12-083, 2021-Ohio-2812, ¶ 16, citing Eckstein v. Colian, 7th Dist. Columbiana No.
11 CO 22, 2012-Ohio-4038, ¶ 14. "'The greater weight may be infinitesimal, and it is only
necessary that it be sufficient to destroy the equilibrium.'" Schwab v. Schwab, 5th Dist.
Stark No. 2019CA00082, 2020-Ohio-560, ¶ 28, quoting Travelers' Ins. Co. v. Gath, 118
Ohio St. 257, 261 (1928). "The characterization of the parties' property is a factual inquiry
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and will not be reversed where supported by some competent, credible evidence." Ghai v.
Ghai, 182 Ohio App.3d 479, 2009-Ohio-2449, ¶ 9 (12th Dist.), citing Barkley v. Barkley, 119
Ohio App.3d 155, 159 (4th Dist.1997).
{¶ 21} Husband claims the trial court erred by finding he "did not sufficiently trace his
separate interest" from the home he and Wife purchased in Utah in 2001 to the purchase
of the marital home located in Mason in 2004. However, when considering Husband did
not provide the trial court with any documentary evidence to support his claim that he used
the money he received from the sale of several pre-marital assets, plus an additional
unknown amount of money taken from his separate money market account, to pay the down
payment on the home in Utah, we find no error in the trial court's decision. See, e.g., Petit
v. Petit, 12th Dist. Fayette No. CA2011-08-018, 2012-Ohio-1801, ¶ 50-53 (overruling
appellant's argument that he had successfully traced a portion of the funds he and appellee
used to purchase the couple's marital home to his separate property where appellant's claim
was based on appellant's testimony alone without any supporting documentary evidence).
{¶ 22} In reaching this decision, we note that Husband could not even remember the
exact amount that he and Wife had paid to purchase the home in Utah in 2001, the total
amount of separate property that he supposedly used to pay the down payment for the
purchase of the home in Utah, or the amount for which he and Wife sold the home in Utah
prior to purchasing the marital home in Mason in 2004. Husband instead testified that he
did not "remember exactly" what he and Wife paid for the home in Utah, but that it was
somewhere around $390,000 "[g]ive or take a few… a thousand." Husband also testified
that he did not have any records indicating the purchase price of the home in Utah, no
closing statement from the purchase of the home in Utah, no statement showing where the
proceeds from the sale of the home in Utah went, or any records showing where the money
put down as a down payment on the home in Mason came from. Therefore, given this lack
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of documentary evidence, we find no error in the trial court's decision rejecting Husband's
claim that he had a "pre-marital interest" in the marital home he and Wife purchased in 2004
located in Mason. Husband's argument otherwise lacks merit.
{¶ 23} Husband also argues the trial court erred by valuing the marital home located
in Mason at $365,000 rather than for a higher figure closer to $380,000 or $400,000. To
support this claim, Husband argues the trial court's valuation of the marital home was a
"random" figure that was not supported by the evidence. However, as the record indicates,
there were two appraisals of the marital home admitted into evidence: Husband's appraisal
of the home at $380,000 and Wife's appraisal of the home at $350,000. There was also
evidence indicating the marital home would need a new roof within two to three years with
an estimated cost of $15,000. Given this evidence, we find it clear that the trial court
accepted Husband's appraisal of the home at $380,000, minus the estimated $15,000 in
repairs needed to the home's roof, to reach its ultimate decision finding the marital home
had a value of $365,000. Therefore, because the trial court's decision valuing the marital
home at $365,000 was supported by competent, credible evidence, we find no error in the
trial court's decision by valuing the marital home located in Mason at $365,000 rather than
for a higher figure closer to $380,000 or $400,000. Husband's argument otherwise lacks
merit.
{¶ 24} For the reasons outlined above, and finding no merit to either of the arguments
raised by Husband herein in support of his second assignment of error, Husband's second
assignment of error lacks merit and is overruled.
Assignment of Error No. 3:
{¶ 25} THE TRIAL COURT ERRED IN DIVIDING THE PARTIES' INTEREST IN
STOCK OPTIONS.
{¶ 26} In his third assignment of error, Husband argues the trial court erred by finding
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the restricted stock units he was granted from his employer after the parties' de facto
termination date of their marriage, March 15, 2020, was not his separate property.
Husband, however, provided no documentary evidence to support his claim that he was
granted the disputed restricted stock units from his employer prospectively to ensure his
continued employment with the company. Given this lack of documentary support, the trial
court clearly found Husband's testimony that his employer granted him with the restricted
stock units as a motivation for future performance or an incentive for continued employment
with the company was not credible. This was well within the trial court's purview as the trier
of fact tasked with determining what constitutes the parties' marital and separate property.
Tincher v. Tincher, 5th Dist. Fairfield No. 2019 CA 00028, 2020-Ohio-3352, ¶ 65 ("[w]hile
the characterization of property as separate or marital must be supported by sufficient,
credible evidence, the appellate court is not the trier of fact"). In so holding, we note that,
despite Husband's claims, "the unvested status of the restricted stock units does not
otherwise deprive the asset of its character as marital property." Anderson v. Anderson,
12th Dist. Warren No. CA2019-10-118, 2020-Ohio-4415, ¶ 11. Therefore, finding no merit
to the any of the arguments raised by Husband herein, Husband's third assignment of error
lacks merit and is overruled.
Assignment of Error No. 4:
{¶ 27} THE TRIAL COURT ERRED IN NOT ACCOUNTING FOR WIFE'S
CONVERSION OF HUSBAND'S PAYCHECK.
{¶ 28} In his fourth assignment of error, Husband argues the domestic relations court
erred by not ordering Wife to reimburse him, or, at the very least, provide him with an offset
for the money he claims Wife improperly removed from their joint bank account after the
stipulated de facto termination date of their marriage, March 15, 2020. This is because,
according to Husband, the money that Wife removed was his paycheck that he received
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after the parties' stipulated de facto termination date of their marriage, thereby rendering
that money his separate property.5 However, although the record indicates Husband
received his paycheck from his employer after the parties' stipulated de facto termination
date of their marriage, the money Husband claims Wife improperly removed from their joint
bank account was earned by Husband prior to that date, thus making those funds marital
property and not, as Husband claims, his separate property.6 Therefore, Husband's
argument alleging the trial court erred by not ordering Wife to reimburse him, or, at the very
least, provide him with an offset for money he claims was his separate property that Wife
improperly removed from their joint bank account, lacks merit. Accordingly, finding no merit
to any of the arguments raised by Husband herein, Husband's fourth assignment of error
lacks merit and is overruled.
Assignment of Error No. 5:
{¶ 29} THE TRIAL COURT ERRED IN AWARDING SPOUSAL SUPPORT.
{¶ 30} In his fifth assignment of error, Husband argues the trial court erred by
awarding Wife with such a "considerable" spousal support award when accounting for
Wife's "understated income" and "historical earnings," Husband's "overall financial
responsibility and contribution," and "the fact of [Wife] literally being a 'millionaire' after this
divorce." We disagree.
{¶ 31} "A trial court has broad discretion in determining whether to award spousal
support, as well as the amount and duration of such award, based on the facts and
5. We note that Husband is not challenging the manner in which the trial court ultimately divided this property,
but only the trial court's classification of this property as separate or marital.
6. The record indicates the paycheck Husband claims was his separate property was deposited in the joint
back account on March 20, 2020, five days after the parties' stipulated de facto termination date of their
marriage. However, although deposited after the de facto termination date of their marriage, the record
indicates that paycheck represented the money Husband earned during the marriage for the two-week pay
period beginning on March 1, 2020 and ending on March 14, 2020.
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circumstances of each case." Spillane v. Spillane, 12th Dist. Butler No. CA2019-12-206,
2020-Ohio-5052, ¶ 12, citing Curry v. Curry, 12th Dist. Butler No. CA2016-07-136, 2017-
Ohio-8127, ¶ 15. Because of this, "an appellate court will not disturb a spousal support
decision absent an abuse of discretion." Delgado v. Delgado, 12th Dist. Clermont No.
CA2018-03-007, 2018-Ohio-4938, ¶ 22, citing Hutchinson v. Hutchinson, 12th Dist.
Clermont No. CA2009-03-018, 2010-Ohio-597, ¶ 16; Bixler v. Bixler, 12th Dist. Clermont
No. CA2016-12-081, 2017-Ohio-7022, ¶ 15 ("a reviewing court will not disturb a spousal
support award on appeal absent an abuse of discretion"). "An abuse of discretion is more
than an error of law or judgment, it is an attitude of the court that is unreasonable, arbitrary,
and unconscionable." Rigby v. Rigby, 12th Dist. Brown No. CA2020-07-005, 2021-Ohio-
271, ¶ 23, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 32} "A trial court has a statutory duty to base a spousal support order on a careful
and full balancing of the factors in R.C. 3105.18(C)(1)." Gaffney v. Gaffney, 12th Dist. Butler
No. CA2019-10-172, 2020-Ohio-5051, ¶ 10, citing Kedanis v. Kedanis, 12th Dist. Butler No.
CA2012-01-015, 2012-Ohio-3533, ¶ 8. Pursuant to that statute, the trial court is required
to consider certain enumerated factors including, but not limited to, the income of the
parties, earning abilities of the parties, ages, duration of marriage, standard of living,
education of parties, as well as assets and liabilities of the parties. McCarty v. McCarty,
12th Dist. Warren Nos. CA2016-07-055 and CA2016-07-056, 2017-Ohio-5852, ¶ 17. "The
trial court need not comment on each factor individually, but rather, 'must indicate the basis
for its award in sufficient detail to enable a reviewing court to determine that the award is
fair, equitable and in accordance with the law.'" Bixler v. Bixler, 12th Dist. Clermont No.
CA2016-12-081, 2017-Ohio-7022, ¶ 17, quoting Campbell v. Campbell, 12th Dist. Warren
No. CA2009-04-039, 2009-Ohio-6238, ¶ 22. "A reviewing court will presume each factor
was considered, absent evidence to the contrary." Davis v. Davis, 12th Dist. Butler No.
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CA2018-01-018, 2018-Ohio-4935, ¶ 9, citing Casper v. Casper, 12th Dist. Warren Nos.
CA2012-12-128 and CA2012-12-129, 2013-Ohio-4329, ¶ 42.
{¶ 33} After a thorough review of the record, we find no error in the trial court's
decision ordering Husband to pay Wife spousal support. The same is true as it relates to
the amount and duration of spousal support award the trial court ordered Husband to pay
to Wife. This is because, despite Husband's claims, the record clearly indicates the trial
court based its spousal support award on a careful and full balancing of the relevant factors
set forth in R.C. 3105.18(C)(1). This includes the length of the parties' nearly 20-year
marriage, the great disparity in the parties' income, as well as Wife's loss of income
production resulting from the marital responsibilities Wife undertook during the marriage.
This also includes the fact that, following their divorce, both Husband and Wife will receive
a significant amount of assets without incurring any amount of debt. 7 Therefore, given
totality of the circumstances, we agree with the trial court's decision finding "the reality is
that [Husband] is also leaving the marriage with a substantial amount of money, and on top
of that also has a much greater earning capacity than [Wife] – thus making this a spousal
support case." Accordingly, finding no merit to any of the arguments advanced by Husband
herein, Husband's fifth assignment of error lacks merit and is overruled.
Assignment of Error No. 6:
{¶ 34} THE TRIAL COURT ERRED IN ALLOCATING PARENTING RIGHTS.
{¶ 35} In his sixth assignment of error, Husband claims the trial court erred in its
allocation of parental rights and responsibilities related to his and Wife's only remaining
unemancipated child, V.C. To support this claim, Husband argues the evidence does not
7. The record indicates that, following their divorce, Husband will retain over $1,400,000 in
retirement/investment accounts and over 3,000 shares of stock, stock options, and restricted stock units,
whereas Wife will have a pension, over $650,000 in retirement/investment accounts, and over 3,000 shares
of stock, stock options, and restricted stock units
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support the trial court's decision denying him shared parenting or, if nothing else, expanded
parenting time beyond that which is set forth in the trial court's standard parenting time
schedule. We disagree.
{¶ 36} "R.C. 3109.04 governs the award of parental rights and responsibilities."
Lykins v. Lykins, 12th Dist. Clermont Nos. CA2017-06-028 and CA2017-06-032, 2018-
Ohio-2144, ¶ 21. In making this determination, the primary concern is the best interest of
the child. Albrecht v. Albrecht, 12th Dist. Butler Nos. CA2014-12-240 and CA2014-12-245,
2015-Ohio-4916, ¶ 22. To determine what is in the best interest of a child, R.C.
3109.04(F)(1) requires the trial court to consider all relevant factors. Bristow v. Bristow,
12th Dist. Butler No. CA2009-05-139, 2010-Ohio-3469, ¶ 8. These factors include, but are
not limited to, (1) the wishes of the parents; (2) the child's interaction and interrelationship
with his parents, siblings, and other persons who may significantly affect the child's best
interest; (3) the child's adjustment to home, school, and community; (4) the mental and
physical health of all persons involved; and (5) the likelihood that the caregiver would honor
and facilitate visitation and parenting time. Denier v. Carnes-Denier, 12th Dist. Warren No.
CA2015-11-106, 2016-Ohio-4998, ¶ 14. "[N]o single factor is determinative of the best
interest of a child; rather, the determination should be made in light of the totality of the
circumstances." Suess v. Suess, 12th Dist. Warren Nos. CA96-01-006 and CA96-01-008,
1996 Ohio App. LEXIS 4400, *6 (Oct. 7, 1996).
{¶ 37} When determining whether shared parenting is in a child's best interest, the
trial court must consider the additional factors set forth in R.C. 3109.04(F)(2). Adkins v.
Adkins, 12th Dist. Butler No. CA2016-12-227, 2017-Ohio-8636, ¶ 11. These factors are (1)
the ability of the parents to cooperate and make decisions jointly, with respect to the child;
(2) the ability of each parent to encourage the sharing of love, affection, and contact
between the child and the other parent; (3) any history or potential for abuse; (4) the
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geographic proximity of the parents to one another; (5) and the recommendation of the
guardian ad litem, if the child has a guardian ad litem. R.C. 3109.04(F)(2)(a) thru (e). "While
no factor in R.C. 3109.04(F)(2) is dispositive, effective communication and cooperation
between the parties is paramount in successful shared parenting." Seng v. Seng, 12th Dist.
Clermont No. CA2007-12-120, 2008-Ohio-6758, ¶ 21. An appellate court reviews a trial
court's custody determination for an abuse of discretion. In re S.K., 12th Dist. Butler No.
CA2013-06-108, 2014-Ohio-563, ¶ 12. As noted above, an abuse of discretion implies that
the court's attitude was unreasonable, arbitrary, or unconscionable. In re B.K., 12th Dist.
Butler No. CA2010-12-324, 2011-Ohio-4470, ¶ 12, citing Blakemore, 5 Ohio St.3d at 219.
{¶ 38} After thorough review of the record, we find no error in the trial court's decision
denying Husband's request for shared parenting. We also find no error in the trial court's
denying Husband's request for any additional parenting time above the trial court's standard
parenting time schedule. This is because, as the record indicates, there are significant
concerns that Husband would be unwilling and/or unable to communicate with Wife, the
parent who had been V.C.'s primary caregiver since V.C.'s birth, regarding V.C.'s schedule
and other needs following the divorce. The record indicates that these concerns were
justified given the fact that V.C. missed one of his basketball games due to Husband
ignoring Wife's repeated attempts to contact Husband via e-mail and text message
regarding V.C. during the pendency of this case.
{¶ 39} The record also indicates that there are real concerns Husband would not
encourage V.C.'s sharing of love, affection, and contact with Wife after Husband's and
Wife's divorce was finalized. This is evidenced by the fact Wife heard Husband making
derogatory comments about her to V.C., i.e., Husband referring to Wife as a "witch." This
is also evidenced by the fact Husband admittedly ignored and ostracized B.C., Wife's child
from a previous relationship whom Husband testified he raised as if she were his own since
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B.C. was one year old, after B.C. "took [Wife's] side" in the divorce. Because of this, we
agree with the trial court's finding that, if Husband's negative feelings towards Wife affect
him this strongly, there is a good chance Husband "will behave this way towards [Wife] in
front of [V.C.], if he has not already." Therefore, when considering this evidence, and when
taking into account the trial court interviewed the then 12-year-old V.C. to determine his
wishes, we find no error in the trial court's allocation of parental rights and responsibilities
as it relates to Husband's and Wife's only remaining unemancipated child, V.C.
Accordingly, finding no merit to any of Husband's arguments raised herein, Husband's sixth
assignment of error lacks merit and is overruled.
{¶ 40} Judgment affirmed.
HENDRICKSON and BYRNE, JJ., concur.
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