Gallion v. Gallion

[Cite as Gallion v. Gallion, 2018-Ohio-3060.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kimberly C. Gallion, :
Plaintiff-Appellant, :
No. 17AP-556
v. : (C.P.C. No. 16DR-3162)
Paul J. Gallion, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on August 2, 2018
On brief: Eugene R. Butler Co., LPA, and Eugene R. Butler,
for appellant. Argued: Eugene R. Butler.
On brief: Law Offices of William L. Geary, and Tracy Q.
Wendt, for appellee. Argued: Tracy Q. Wendt.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
HORTON, J.
{¶ 1} Plaintiff-appellant, Kimberly C. Gallion, appeals from a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, which granted a
divorce to appellant and appellee, Paul J. Gallion, and determined the division of property,
spousal support, and all issues related to the parties' two children. For the following
reasons, we reverse in part and affirm in part the judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The parties were married on September 24, 2011 and had two children. On
August 17, 2016, appellant was represented by counsel and filed for divorce. Appellant
requested that the court designate her as residential parent, divide the marital property,
and order appellee to pay child support, spousal support, and attorney fees.
{¶ 3} On August 31, 2016, appellee filed an answer and counterclaim for divorce.
Appellee also filed a motion for psychological examination of appellant because she had
No. 17AP-556 2
been hospitalized for psychiatric reasons on two occasions during the course of the
marriage and also participated in an outpatient program for mental health issues. Appellee
cited this history and "recent conduct" to argue that he had concerns regarding the safety
of the children. (Aug. 31, 2016 Mot. at 2.) On September 22, 2016, the trial court appointed
a guardian ad litem ("GAL") for the children.
{¶ 4} Each party filed a motion for exclusive use of the marital residence. On
September 22, 2016, the trial court filed an agreed entry in which appellee agreed to move
out of the residence but would continue to pay the mortgage, taxes, insurance due on the
marital residence, and the monthly utilities. Appellee also was ordered to pay for the oldest
child's pre-school expenses and tuition.
{¶ 5} On November 4, 2016, appellant's counsel requested leave to withdraw and
the trial court granted the motion on November 8, 2016. On November 15, 2016, the trial
court issued an order sustaining appellee's motion for a vocational evaluation and issued
an interim order granting appellee parenting time until the temporary orders were issued.
The magistrate then issued temporary orders on December 1, 2016.
{¶ 6} On December 19, 2016, appellee filed a motion seeking the appointment of a
guardian to represent the interests of appellant. On December 28, 2016, appellee filed a
motion for ex-parte emergency custody order based on appellant sending emails to
appellee, his counsel, and the GAL that demonstrate the continued existence of possible
mental health issues. That same day, the trial court granted appellee's motion granting him
emergency custody of the children and granting appellant supervised parenting time.
{¶ 7} On January 24, 2017, appellant filed a pro se counter affidavit for change of
parental rights and responsibilities seeking sole custody of the children, along with child
and spousal support. In her memorandum in support, appellant alleged that appellee
kidnapped the children and emptied their joint bank accounts. She argued that the
emergency custody order was fraudulent.
{¶ 8} On January 27, 2017, the trial court appointed a guardian ad litem for
appellant but used the standard form for appointing guardians for minor children. On
March 9, 2017, the trial court ordered appellant to submit to a psychological examination
and sign a release for her GAL to obtain a copy of the report.
{¶ 9} On July 10, 2017, the trial court held a hearing and denied the request of
appellant's GAL for a continuance. Two witnesses testified during the hearing, appellee
No. 17AP-556 3
and Lorna Freimoth. At the conclusion of the hearing, the trial court signed the prepared
divorce decree, findings of fact regarding a deviation for child support, and the document
regarding the division of assets and liabilities. In the entry decree of divorce, the trial court
indicated that appellant was provided notice of the hearing but failed to appear.
II. ASSIGNMENTS OF ERROR
{¶ 10} Appellant filed a timely notice of appeal and raised the following assignments
of error for our review:
[I.] The trial court erred as a matter of law and abused its
discretion in awarding sole custody of the parties' minor
children to defendant and in limiting plaintiff's parenting
time, both on an emergency basis and as a final order.
[II.] The trial court erred as a matter of law and abused its
discretion in failing to delineate the statutory factors for its
award of spousal support.
[III.] The trial court erred as a matter of law and abused its
discretion in failing to take evidence on the value of the assets
and liabilities to support the findings of fact required by R.C.
3105.171.
[IV.] The trial court erred as a matter of law and abused its
discretion in failing to appoint a guardian ad litem for plaintiff
which guardian had all of the powers needed to prosecute the
claims and defenses of plaintiff.
[V.] The trial court erred as a matter of law and abused its
discretion in failing to determine the needs and standard of
living of the children and the parties.
III. STANDARD OF REVIEW
{¶ 11} The standard of review for appellate courts in domestic relations cases is
whether the trial court abused its discretion. Scinto v. Scinto, 10th Dist. No. 09AP-5, 2010-
Ohio-1377, ¶ 4, citing Booth v. Booth, 44 Ohio St. 3d 142 (1989). An abuse of discretion
connotes more than an error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219
(1983).
No. 17AP-556 4
IV. DISCUSSION
{¶ 12} Initially, we note that, at oral argument to this court, counsel for both parties
informed this court that the parties had resolved assignments of error one and three. Thus,
this court need not address them.
{¶ 13} In her second assignment of error, appellant contends that the trial court
erred and abused its discretion in failing to delineate the statutory factors for its award of
spousal support. R.C. 3105.18(B) authorizes the trial court to award reasonable spousal
support. When determining whether spousal support is appropriate and reasonable, the
trial court must consider the factors set forth in R.C. 3105.18(C)(1). The 13 factors provided
in R.C. 3105.18(C)(1) include:
(a) The income of the parties, from all sources, including, but
not limited to, income derived from the property divided,
disbursed, or distributed under property divided, disbursed,
or distributed under section 3105.171 of the Revised Code;
(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;
No. 17AP-556 5
(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 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.
{¶ 14} It is not necessary that the trial court expressly comment on each factor, but
it must indicate the basis for an award of spousal support in sufficient detail to enable a
reviewing court to determine that the award is fair, equitable, and in accordance with the
law, and there must be a clear indication that the factors were considered. Hightower v.
Hightower, 10th Dist. No. 02AP-37, 2002-Ohio-5488, ¶ 24, citing Casper v. DeFrancisco,
10th Dist. No. 01AP-604 (Feb. 19, 2002).
{¶ 15} The trial court has broad discretion in determining what is equitable and
whether or not to award spousal support given the facts and circumstances of the case and
an appellate court will not disturb a spousal support award unless the trial court abused its
discretion. Leimbach v. Leimbach, 10th Dist. No. 09AP-509, 2009-Ohio-6991, ¶ 20, citing
Kunkle v. Kunkle, 51 Ohio St. 3d 64, 67 (1990).
{¶ 16} In this case, the trial court did not provide any analysis regarding the spousal
support. Only two witnesses testified at the hearing, appellee and his friend, who testified
that appellee is truthful and honest. The trial court asked questions of the children's GAL,
but the GAL was not under oath. The only evidence provided at the hearing regarding the
factors was the date of the marriage and the division of assets and liabilities, although no
value as to the assets and liabilities was provided. The children's GAL informed the court
that appellant was unemployed. Although there is some evidence regarding the factors,
there is no evidence that the trial court considered the factors. Since the trial court must
indicate that it considered the R.C. 3105.18(C) factors and did not do so here, we remand
this cause for it to consider the factors and indicate that it did so.
No. 17AP-556 6
{¶ 17} Appellee's argument in his brief to this court is unclear whether he is arguing
that appellant waived her right to argue that the trial court should follow the provisions of
R.C. 3105.18. Since appellant did not appear for the final hearing, in her brief to this court,
she anticipated that appellee would make this argument in his brief to this court. " 'As a
general rule, the doctrine of waiver is applicable to all personal rights and privileges,
whether secured by contract, conferred by statute, or guaranteed by the Constitution,
provided that the waiver does not violate public policy.' " Sanitary Commercial Servs., Inc.
v. Shank, 57 Ohio St. 3d 178, 180 (1991), quoting State ex rel. Hess v. Akron, 132 Ohio St.
305, 307 (1937). "A waiver is a voluntary relinquishment of a known right, with the intent
to do so with full knowledge of all the facts." N. Olmstead v. Eliza Jennings, Inc., 91 Ohio
App.3d 173, 180 (8th Dist.1993), citing Kiefer Mach. Co. v. Niemes, 82 Ohio App. 310 (1st
Dist.1948). Here, considering appellee requested the appointment of a GAL for appellant
because he did not think she could knowingly make decisions, we will not find that
appellant voluntarily and knowingly waived her rights. Thus, having determined that the
trial court failed to comply with the requirements of R.C. 3105.18 and that appellant never
expressly or impliedly waived these rights, we sustain appellant's second assignment of
error.
{¶ 18} By her fourth assignment of error, appellant contends that the trial court
erred in failing to appoint a GAL for her who possessed all of the powers needed to
prosecute her claims and defenses. Appellant's contention is that the GAL, which was
appointed to represent her, did not have all the power necessary to prosecute her claims
and defenses because the appointment was not as her attorney-advocate. The trial court
used the form typically utilized for the appointment of a GAL for minor children but the
GAL was not authorized by this appointment to act in the capacity as appellant's attorney.
{¶ 19} A trial court has the power under Civ.R. 17(B) to appoint a GAL for an
incompetent litigant. That rule provides, in pertinent part:
When, a[n] * * * incompetent person is not otherwise
represented in an action the court shall appoint a guardian ad
litem or shall make such other order as it deems proper for the
protection of such * * * incompetent person.
{¶ 20} Civ.R. 17(B) authorizes a court to appoint a GAL for the protection of an
individual that the court believes to be incompetent. Dailey v. Dailey, 11 Ohio App. 3d 121,
No. 17AP-556 7
123 (2d Dist.1983). "The trial court's obligation to appoint a guardian or other
representative, or make some other proper order, arises when the court determines that a
minor or incompetent person is not otherwise represented." State v. Kendrick, 10th Dist.
No. 98AP-1305 (Sept. 30, 1999), citing In re Guardianship of Carter, 10th Dist. No. 90AP-
755 (Feb. 8, 1991).
{¶ 21} In this case, appellee requested that the trial court appoint a GAL for
appellant arguing that appellant was not in a position to knowingly act in the pending
divorce and suggesting that she was mentally incompetent. Appellant was never
determined as incompetent. The trial court did "make such other order as it deems proper"
by appointing a GAL, although with a limited role. The trial court did order appellant to
submit to a psychological examination, however, the record does not reflect that appellant
completed the assessment. The trial court did attempt to investigate the incompetency
allegation and followed Civ.R. 17(B), which allows the court to appoint a GAL or make such
other order as it deems proper. Civ.R. 17(B) does not mandate the appointment of a GAL
for the purpose of prosecuting a party's case, especially when no finding of incompetency
has been made. Appellant has not demonstrated that the trial court abused its discretion.
Appellant's fourth assignment of error is overruled.
{¶ 22} Finally, in her fifth assignment of error, appellant contends that the trial
court erred in failing to determine the needs and standard of living of the children and the
parties. Essentially, appellant argues that the trial court did not consider the factors in R.C.
3119.04(B) before fashioning the child support order. A trial court has considerable
discretion when calculating child support and, absent an abuse of discretion, an appellate
court will not disturb a child support order. Roubanes v. Roubanes, 10th Dist. No. 13AP-
369, 2013-Ohio-5778, ¶ 5.
{¶ 23} R.C. 3119.04(B) provides that if the combined income of the parties is greater
than $150,000 per year, the court shall determine the child support amount on a case-by-
case basis and shall consider the needs and the standard of living of the children and the
parents. Here, appellee makes more than $150,000 and appellant is unemployed. We note
that R.C. 3119.04(B) " 'does not require any explanation of [the trial court's] decision unless
it awards less than the amount awarded for combined incomes of $150,000.' " Guertin v.
Guertin, 10th Dist. No. 06AP-1101, 2007-Ohio-2008, ¶ 6, quoting Cyr v. Cyr, 8th Dist. No.
84255, 2005-Ohio-504, ¶ 56.
No. 17AP-556 8
{¶ 24} The trial court did file an entry setting forth the findings of fact and
conclusions of law supporting the deviation from child support. The child custody order
awarded custody to appellee with appellant receiving supervised visitation time only. After
imputing $28,000 in income to appellant and following the guideline, the trial court
determined that appellant would owe $599.02 per month, plus processing charge, for a
total of $611 for the support of the two children per month. However, given that appellant
is unemployed, the trial court determined that the amount of support would be unjust and
inappropriate and not in the best interest of the minor children, therefore, the trial court
deviated the amount to $0.
{¶ 25} Appellant argues that the trial court could have ordered appellee to pay child
support to her even though she is the noncustodial parent. See Warren v. Warren, 10th
Dist. No. 09AP-101, 2009-Ohio-6567, ¶ 18-23. In Warren, the trial court's plan resulted in
equal parenting time overall, although not equal time for both parents with both children.
This court, in Warren, determined that a case-by-case approach is best to determine
whether a custodial parent can be ordered to pay child support. In this case, appellant only
has supervised visitation. We do not find that the trial court abused its discretion in failing
to require appellee to pay child support given that appellant has such restricted parenting
time. The trial court's decree of divorce and its findings of fact and conclusions of law for
deviation from child support demonstrate that the trial court considered the needs and the
standard of living of the children and the parents as required by R.C. 3119.04. Appellant's
fifth assignment of error is overruled.
{¶ 26} For the foregoing reasons, appellant's second assignment of error is
sustained, her fourth and fifth assignments of error are overruled, the parties settled the
first and third assignments of error, and this cause is remanded to the Franklin County
Court of Common Pleas, Division of Domestic Relations, for that court to consider the
factors set forth in R.C. 3105.18(C)(1) and to provide a basis for its spousal support order.
Judgment affirmed in part, reversed in part;
cause remanded.
DORRIAN, J. concurs.
LUPER SCHUSTER, J., concurs in judgment only.
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