Vaughn v. Vaughn

[Cite as Vaughn v. Vaughn, 2022-Ohio-1805.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
LINDSAY VAUGHN, :
Appellee, : CASE NO. CA2021-08-078
: OPINION
- vs - 5/31/2022
:
JEFFERY A. VAUGHN, :
Appellant. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 17DR39921
Stagnaro Hannigan Koop, Co., LPA, and Michaela M. Stagnaro, for appellee.
Stafford Law Co., L.P.A., and Joseph G. Stafford and Nicole A. Cruz, for appellant.
S. POWELL, J.
{¶ 1} Appellant, Jeffery A. Vaughn ("Husband"), appeals from the judgment entry
and decree of divorce issued by the Warren County Court of Common Pleas, Domestic
Relations Division, granting his now ex-wife, appellee, Lindsay Vaughn ("Wife"), a divorce
on the basis that Husband and Wife are incompatible. For the reasons outlined below, and
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finding no merit to any of the arguments raised by Husband herein, we affirm.
The Parties
{¶ 2} Husband and Wife were married in Mason, Warren County, Ohio on October
8, 2011. There were two children born issue of the marriage, a boy, J.A.V., born on May
18, 2012, and a girl, E.C.V., born on February 24, 2015. Husband was previously employed
as a financial advisor/consultant with a Series 6 securities license that provided him a yearly
salary of well over $300,000 per year. Husband claims that he is now employed at a
business with three other individuals where he makes closer to $60,000 per year in total
income.1 Mother works at a local pharmaceutical company that pays her a base salary of
$120,000 per year, plus commission. The record indicates Mother has also worked as a
barre instructor one day a week.
Facts and Procedural History
{¶ 3} On October 12, 2017, one day before she left the marital residence for the
last time, Wife filed a complaint for divorce from Husband.2 Several months later, on March
26, 2018, Husband filed an answer and counterclaim for divorce from Wife.3 Husband's
answer and counterclaim was filed by his then attorney, Brooke L. Logsdon. On January
4, 2019, after serving as Husband's counsel for nearly a year, Attorney Logsdon moved the
domestic relations court to withdraw as counsel due to Husband's "lack of communication
1. Husband's Series 6 securities license was revoked by the Financial Industry Regulatory Authority in the
early part of 2017 after a two-day disciplinary hearing was held on the matter in the fall of 2016. Similar to
what happened in this case, which will be discussed more fully below, Husband was precluded from offering
any exhibits at that disciplinary hearing because Husband missed the deadline for filing and serving his exhibit
list.
2. Wife left the marital residence once before in the summer of 2016 following an alleged domestic violence
incident that resulted in Husband's arrest and a protection order against Husband being put in place.
3. There was a significant delay in serving Husband with Wife's complaint for divorce. This was due, in part,
to Husband intentionally letting the complaint sent to him by Wife via certified mail go unclaimed. The
domestic relations court later commented that Husband's refusal to retrieve this certified mailing established
early on that Husband "would not make this process easy" for Wife. The record fully supports the domestic
relations court's characterization of Husband's conduct throughout this case.
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and cooperation and a failure to abide by the terms of the written fee agreement." The
domestic relations court granted Attorney Logsdon's motion to withdraw as Husband's
counsel on January 15, 2019.
{¶ 4} On the morning of May 9, 2019, a final divorce hearing was scheduled to take
place before a domestic relations court magistrate. Because Husband had not retained a
new attorney, Husband was to appear at this hearing pro se. However, approximately 15
minutes before that hearing was scheduled to begin, Husband notified the domestic
relations court that he would not be able to attend the hearing because he had supposedly
become sick and vomited several times after eating bad Mexican food the day prior, on May
8, 2019.4 Staff with the domestic relations court attempted to call Husband back while on
the record to determine the severity of Husband's illness and whether it would be possible
for Husband to participate in the final divorce hearing via phone. Husband, however, did
not answer his phone.
{¶ 5} On May 10, 2019, the magistrate issued an order requiring Husband to
reimburse Mother $7,700 for the costs and fees, including attorney fees, that Mother had
incurred as a result of Husband's failure to appear at the May 9, 2019 final divorce hearing.
That same day, the magistrate also issued a decision prohibiting Husband from presenting
any evidence or witnesses (other than himself) that Husband would try to introduce at any
part of what ultimately turned into a three-day final divorce hearing held on June 28, 2019,
September 18, 2019, and October 7, 2020. The magistrate found such a draconian order
was necessary given Husband's repeated failures to comply with the domestic relations
court's local rules and apparent refusal to comply with Wife's discovery demands. This
4. The record indicates Husband went to an urgent care at 10:31 a.m. on the morning of May 9, 2019
complaining of nausea and vomiting. However, the medical records generated from Husband's visit to that
urgent care indicate Husband's vital signs were normal, that Husband did not have a sickly appearance, and
that Husband was smiling, conversing, and did not appear to be sick with food poisoning as Husband had
claimed.
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included Husband's failure to comply with the domestic relations court's Local Rule 3.7,
entitled "Exchange of Exhibits and Witness Lists," which provides:
Both parties shall exchange all exhibits expected to be used at
trial and a list of all witnesses to be called to testify at trial at
least seven days prior to trial, unless otherwise ordered.
{¶ 6} On May 24, 2019, Attorney John D. Smith and Attorney Mark D. Webb filed a
notice of appearance as Husband's newly retained counsel. That same day, Attorneys
Smith and Webb also filed an objection to the magistrate's decision barring Husband from
presenting any evidence or calling any witnesses (other than himself) at any portion of the
final divorce hearing. Shortly thereafter, on June 5, 2019, Attorneys Smith and Webb
moved the domestic relations court to continue the final divorce hearing that had been
rescheduled to take place on June 10, 2019. The domestic relations court granted Attorney
Smith's and Attorney Webb's motion to continue and thereafter continued the final divorce
hearing to June 28, 2019. The domestic relations court also remanded the matter back to
the magistrate with instructions that the magistrate hear arguments on Husband's objection
to the magistrate's decision.
{¶ 7} On June 18, 2019, Husband filed a shared parenting petition requesting the
domestic relations court issue a shared parenting plan regarding the parties' two children,
J.A.V. and E.C.V. Ten days later, on June 28, 2019, the rescheduled final divorce hearing
took place. Both Husband and Wife appeared at this hearing with counsel. During this
hearing, Wife's vocational expert, Dr. Carl W. Sabo, testified that Husband had a "very good
work history in the past," a "very high level of employment," and, in his expert opinion,
Husband could expect to earn a median yearly salary of $127,708, plus benefits. One other
witness, Wife's friend, M.C., also testified at this hearing. However, because Wife was
unable to complete her case-in-chief, the final divorce hearing was continued in progress
to September 11, 2019. On July 30, 2019, the domestic relations court issued an order
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pushing that final divorce hearing back one week to September 18, 2019.
{¶ 8} On September 5, 2019, under two weeks before the final divorce hearing was
scheduled to resume, Attorneys Smith and Webb moved the domestic relations court to
withdraw as Husband's counsel. To support their motion, the attorneys stated that "[t]he
reasons for withdrawal include, but are not limited to, a breakdown in communication
between Counsel and client as well as failure to comply with the representation agreement."
Attorneys Smith and Webb also notified the domestic relations court that "[m]ore cause can
be made known if necessary at a hearing on this matter." The domestic relations court
granted Attorney Smith's and Attorney Webb's motion to withdraw as Husband's counsel
on September 13, 2019.
{¶ 9} On September 18, 2019, the final divorce hearing resumed before the same
domestic relations court magistrate. Given Attorney Smith's and Attorney Webb's
withdrawal as Husband's counsel, Husband appeared at this hearing pro se. Upon entering
his appearance, Husband moved for a continuance of the final divorce hearing to allow him
time to retain yet another new attorney. The magistrate denied Husband's motion from the
bench and advised Husband that he "was free to object at a later date" if he believed the
magistrate erred by denying him a continuance to obtain new counsel. Wife then proceeded
with her case-in-chief. This included Wife herself taking the stand to testify. Following this
hearing, which concluded with Wife's direct examination, the magistrate continued the final
divorce hearing in progress to November 7, 2019.
{¶ 10} On October 15, 2019, Husband, who was at that time still appearing pro se,
moved the domestic relations court for a continuance of the November 7, 2019 final divorce
hearing. The domestic relations court denied Husband's motion later that same day.
Shortly thereafter, on October 30, 2019, Attorney John C. Kasper filed a notice of
appearance as Husband's newly retained counsel. The next day, October 31, 2019,
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Attorney Kasper filed a motion requesting a continuance of the final divorce hearing
scheduled to take on November 7, 2019. The domestic relations court granted Attorney
Kasper's motion for a continuance and thereafter rescheduled the final divorce hearing to
resume on February 10, 2020.
{¶ 11} Unsurprisingly, throughout the first few months of 2020, the final divorce
hearing was continued several more times due to the emergence of the COVID-19
pandemic. This ultimately resulted in the final divorce hearing being continued to, and
completed on, October 7, 2020. Approximately one month prior to that hearing, however,
Attorney Kasper moved the domestic relations court to withdraw as Husband's counsel "for
the reason that there has been an irreparable breakdown of attorney-client communication."
The domestic relations court issued a decision granting Attorney Kasper's motion to
withdraw as Husband's counsel on September 23, 2020.
{¶ 12} In so holding, the domestic relations court specifically stated that the October
7, 2020 final divorce hearing would not be continued "solely based on [Husband] seeking
new counsel."5 Therefore, just as Husband had done at the final divorce hearing held on
September 18, 2019, Husband also appeared at the October 7, 2020 final divorce hearing
pro se. During this hearing, which Mother appeared at with counsel, the magistrate limited
Wife's counsel's questioning of Wife to events that had happened in the year since Wife
had testified at the September 18, 2019 final divorce hearing. The magistrate also
prohibited Husband from cross-examining Wife regarding anything that she had previously
testified to at the September 18, 2019 final divorce hearing.
5. We note that the decision and entry entered on September 23, 2020 granting Attorney Kasper's motion to
withdraw as Husband's counsel was issued by a domestic relations court magistrate. Husband filed an
objection to the magistrate's decision granting Attorney Kasper's motion to withdraw on September 30, 2020.
However, because Husband proceeded with the final divorce hearing held on October 7, 2020 without raising
the issue again, the domestic relations court found Husband's objection to the magistrate's decision granting
Attorney Kasper's motion to withdraw had been rendered moot. The domestic relations court issued this
decision on December 31, 2020.
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{¶ 13} On October 21, 2020, Attorney Joseph G. Stafford filed a notice entering his
appearance as Husband's newly retained counsel. Attorney Stafford, along with Attorney
Nicole A. Cruz, have remained on as Husband's counsel ever since.
{¶ 14} On February 5, 2021, the magistrate issued a decision recommending the
domestic relations court grant Wife a divorce from Husband on the grounds of
incompatibility. The magistrate also recommended the domestic relations court deny
Husband's petition for shared parenting. The magistrate instead recommended Wife be
designated as the residential parent and legal custodian of the children, with Husband
receiving parenting time based on a slightly modified basic parenting time schedule. The
magistrate further recommended that, based on the expert testimony offered by Dr. Sabo,
Husband's income for child support purposes should be set at $127,708. The magistrate
additionally recommended the domestic relations court deny all other motions not
specifically addressed within its decision. This necessarily included the motions for
contempt Wife filed against Husband between August 15, 2018 and July 9, 2020.
{¶ 15} On February 18, 2021, Husband filed preliminary objections to the
magistrate's decision. Father then supplemented his objections to the magistrate's decision
on May 5, 2021. Within his various objections, Husband argued (1) the magistrate erred by
denying his motion to continue the final divorce hearings held on September 18, 2019 and
October 7, 2020 to allow him time to obtain new counsel; (2) the magistrate violated his
right to due process by refusing to allow him to cross-examine Wife about topics that she
had testified to at the September 18, 2019 final divorce hearing; and (3) the magistrate erred
by prohibiting him from introducing any evidence or calling any witnesses during any of the
three days in which the final divorce hearing was held. Husband also argued (4) the
magistrate erred by denying his petition for shared parenting and designating Wife as the
residential parent and legal custodian of the children; (5) the magistrate erred by "imputing
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income" to him in the amount of $127,708 for purposes of calculating child support; and (6)
the magistrate erred in its division of marital property and the classification of marital and
separate property regarding, among other items, a U.S. Bank trust account.
{¶ 16} On February 26, 2021, Wife filed her own objections to the magistrate's
decision. Specifically, Wife objected to the magistrate's decision implicitly overruling the
motions for contempt she had filed against Husband between August 15, 2018 and July 9,
2020. To support this claim, Wife argued the magistrate erred by not finding Husband in
contempt for (1) Husband's failure to pay on the domestic relations court's temporary child
support order; (2) Husband's failure to abide by the domestic relations court's temporary
parenting time order; and (3) Husband's failure to reimburse her for the costs and fees,
including attorney fees, that she had incurred as a result of Husband's failure to appear at
the final divorce hearing scheduled to take place nearly two years earlier, on May 9, 2019.
{¶ 17} On June 18, 2021, the domestic relations court issued a decision overruling
Husband's objections to the magistrate's decision and sustaining Mother's objections to the
magistrate's decision. In so holding, the domestic relations court initially noted this case
had a "significant history" that it found to be "unprecedented." The domestic relations court
also noted that "[t]he procedural posture illustrates why each of [Husband's] objections [to
the magistrate's decision] must be overruled." The domestic relations court then explained,
in detail, why it had come to that decision. This includes the domestic relations court stating,
in pertinent part, the following:
[Husband] chose three attorneys to represent him who have
extensive experience in this Court and enjoy excellent
reputations for meeting deadlines, being respectful to other
attorneys and the Court, and aggressively representing their
clients. The Court is not permitted to inquire about the
relationship [Husband] had with any of his attorneys, such as
who was at fault in the breakdown and why, but the Court knows
that on all three occasions the attorneys asked this Court to
withdraw as his attorney. It demonstrates [Husband] was no
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more compliant with his attorneys than he was with complying
with discovery demands, following Court Orders regarding
disclosure of witnesses and exhibits, and communicating
respectfully with [Wife].
It is unfortunate [Husband] chose not to prioritize his
responsibility with his attorneys so he could have the benefit of
their counsel at trial. The Court does not regard his lack of
having an attorney as anything the Magistrate did to him, but
rather as a choice [Husband] made that created the very risk he
now complains about.
{¶ 18} The domestic relations court also noted Husband "chose to hide information,
then failed to disclose his evidence," a "strategy" the domestic relations court found must
lead to but one remedy: "[t]hey do not get to present their case." The domestic relations
court further noted:
All of [Husband's] aggressive techniques have hurt him in the
end. Had he instead been forthcoming with information from the
beginning, respectful with [Wife] in his communication, and
cooperative with his attorneys, this case could have been over
a long time ago with [Husband] likely enjoying everything he
now continues to fight for.
{¶ 19} This is in addition to the domestic relations court finding:
[Husband's] obstinance in failing to complete discovery, his
disregard of support orders, and his lack of cooperative
communication with [Wife] have all combined to demonstrate
why he should not be a residential parent of the children in a
Shared Parenting Plan.
{¶ 20} As well, as the domestic relations court found:
[T]he Court has no doubt that had [Husband] taken an hour
before any of the trial dates to make sure he had complied with
discovery and forwarded his proposed exhibits to [Wife's]
attorney, he could have at least presented a case for a
premarital interest in the U.S. Bank Trust. It is also possible that
he could have proven that point even without the documentation
had he projected himself in a manner that was credible. But
[Husband] failed to follow the Civil Rules and Court Orders, and
seemed more focused on defeating [Wife] than working
cooperatively with her.
{¶ 21} The domestic relations court found the same to be true as it relates to the
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magistrate's decision recommending Husband's income be set at $127,708 for child support
purposes. The domestic relations court, in fact, specifically stated that it found Husband's
testimony regarding his purported total income being closer to $60,000 per year, or, at the
very least, less than $120,000 per year, lacked credibility.
{¶ 22} After addressing each of Husband's six objections, the domestic relations
court then explained its decision sustaining Wife's objections to the magistrate's decision
finding Husband in contempt. This ultimately resulted in the domestic relations court
sentencing Husband on the contempt to a suspended 30-day jail sentence that Husband
could purge by (1) making "steady payments" on his $34,500 child support arrearage, in
addition to regular support payments, for a period of three years; (2) reimbursing Mother
$1,000 for trial expenses she unnecessarily incurred due to Husband's absence at the May
9, 2019 final divorce; and (3) paying Mother an aggregate, total amount of $8,850 in attorney
fees.
{¶ 23} On August 13, 2021, the domestic relations court issued its final judgment
entry and decree of divorce. Shortly thereafter, on August 26, 2021, Husband filed a timely
notice of appeal. Oral argument was held before this court on May 2, 2022. Husband's
appeal now properly before this court for decision, Husband raises six assignments of error
for this court's review.
Assignment of Error No. 1:
{¶ 24} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION BY FAILING TO GRANT THE APPELLANT A REASONABLE
CONTINUANCE OF THE DIVORCE TRIAL TO OBTAIN COUNSEL.
{¶ 25} In his first assignment of error, Husband argues the domestic relations court
erred by overruling his objections to the magistrate's decision denying his motions to
continue the September 18, 2019 and October 7, 2020 final divorce hearings to allow him
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time to obtain new counsel. We disagree.
{¶ 26} The grant or denial of motion for a continuance is a matter entrusted to the
broad and sound discretion of the domestic relations court. Alomari v. Almajali, 12th Dist.
Butler No. CA2019-11-187, 2020-Ohio-4349, ¶ 48. Because of this, an appellate court will
not disturb a domestic relations court's decision denying a motion for a continuance absent
an abuse of that discretion. Haynes v. Owens-Haynes, 12th Dist. Clermont No. CA2008-
01-003, 2008-Ohio-4963, ¶ 7 ("[a]bsent an abuse of discretion, a reviewing court will not
disturb a trial court's decision denying a motion for a continuance"). An abuse of discretion
means more than an error of law or judgment. In re E.W., 12th Dist. Warren Nos. CA2017-
01-001 thru CA2017-01-003, 2017-Ohio-7215, ¶ 21. Rather, an abuse of discretion implies
that the domestic relations court's attitude was unreasonable, arbitrary, or unconscionable.
Sparks v. Sparks, 12th Dist. Warren No. CA2015-10-095, 2016-Ohio-2896, ¶ 7, citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The vast majority of cases in which
an abuse of discretion is asserted involve claims that the decision is unreasonable.
Bonifield v. Bonifield, 12th Dist. Butler No. CA2020-02-022, 2021-Ohio-95, ¶ 11. "A
decision is 'unreasonable' when there is no sound reasoning process to support it." Vaughn
v. Vaughn, 12th Dist. Warren No. CA2007-02-021, 2007-Ohio-6569, ¶ 12, citing AAAA
Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d
157, 161 (1990).
{¶ 27} "[T]here is no bright line test for determining when an abuse of discretion
occurs in the context of the denial of a motion for a continuance * * *." In re Shepherd, 4th
Dist. Highland No. 97CA941, 1998 Ohio App. LEXIS 2194, *5 (May 11, 1998). Rather, in
determining whether the domestic relations court abused its discretion, this court should
consider several factors. Harmon v. Baldwin, 107 Ohio St.3d 232, 2005-Ohio-6264, ¶ 21.
These factors include "(1) the length of the delay requested; (2) whether other continuances
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have been requested and received; (3) the inconvenience to witnesses, opposing counsel,
and the court; (4) whether there is a legitimate reason for the continuance; (5) whether the
defendant contributed to the circumstances giving rise to the need for the continuance, and
(6) other relevant factors, depending on the unique facts of each case." Caramico v.
Caramico, 12th Dist. Clermont No. CA2015-03-025, 2015-Ohio-4232, ¶ 10, citing Black v.
Black, 12th Dist. Clinton No. CA2008-06-022, 2009-Ohio-92, ¶ 12; and Kirkpatrick v.
Kirkpatrick, 5th Dist. Tuscarawas No. 2014AP050018, 2015-Ohio-427, ¶ 22. These factors
are used to ensure the domestic relations court "balances its interest in controlling its own
docket and the public's interest in an efficient judicial system with the possibility of prejudice
to the parties." Jones v. Wall, 12th Dist. Warren No. CA2015-10-088, 2016-Ohio-2780, ¶
37, citing Tener v. Tener-Tucker, 12th Dist. Warren No. CA2004-05-061, 2005-Ohio-3892,
¶ 42.
{¶ 28} As noted above, Husband argues the domestic relations court erred by
overruling his objections to the magistrate's decisions denying his motions to continue the
September 18, 2019 and October 7, 2020 final divorce hearings to allow him time to obtain
new counsel. However, just as the domestic relations court found, the record firmly
establishes that Husband had already driven away three highly competent, experienced
attorneys prior to the September 18, 2019 final divorce hearing, a number that Husband
was able to increase to four in the weeks leading up to the final divorce hearing held on
October 7, 2020. The domestic relations court found this revolving door of attorneys with
reputations of aggressively advocating for their clients demonstrated Husband "was no
more compliant with his attorneys than he was with complying with discovery demands,
following Court Orders regarding disclosure of witnesses and exhibits, and communicating
respectfully with [Wife]." The domestic relations court also found it unfortunate that
Husband had chosen not to "prioritize his responsibility with his attorneys so he could have
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the benefit of their counsel at trial," but that Husband's lack of counsel to represent him at
the final divorce hearings held on September 18, 2019 and October 7, 2020 was not the
result of anything the magistrate did to him. The domestic relations court instead
determined that Husband being left without an attorney to represent him at the September
18, 2019 and October 7, 2020 final divorce hearings was the natural result of the choices
Husband had made that "created the very risk he now complains about."
{¶ 29} After a full and thorough review of the record, which includes the transcript for
both the September 18, 2019 and October 7, 2020 final divorce hearings, it is clear the
domestic relations court found it was Husband, and Husband alone, who created the
circumstances giving rise to the need for Husband to twice move for a continuance so that
he could obtain new counsel. We agree. Husband, having already engaged in every
dilatory tactic possible, was doing nothing more than trying to delay the final divorce
hearings held on September 18, 2019 and October 7, 2020 even further after learning of
the motions to withdraw filed by his various attorneys. The record indicates this occurred
after Husband had already received multiple continuances, many of which were due to
Husband's own contrived actions or feigned surprise, that ultimately resulted in this
generally straightforward divorce taking multiple years rather than mere months, or possibly
a year, to complete.6 Under these circumstances, and when considering the totality of the
record, it was not error for the domestic relations court to overrule Husband's objection to
the magistrate's decision denying his motions to continue the September 18, 2019 and
6. For example, Husband claims he did not know Attorneys Smith and Webb had moved to withdraw as his
counsel until September 16, 2019, two days before the September 18, 2019 final divorce hearing was
scheduled to begin. The record does not support this claim and instead indicates Attorneys Smith and Webb
both mailed and e-mailed their motion to withdraw to Husband on September 4, 2019. Husband claims within
his appellate brief that the magistrate learned of this through an "improper investigation" made "off the record"
in violation of the Ohio Rules of Evidence and the Ohio Code of Judicial Conduct. This court disagrees with
Husband's characterization of what transpired at the September 18, 2019 final divorce hearing and finds
nothing untoward about the magistrate's conduct in attempting to verify Husband's claims, which, as it turns
out, proved to be false.
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October 7, 2020 final divorce hearings to allow him time to obtain new counsel. Therefore,
finding no error, Husband's first assignment of error lacks merit and is overruled.
Assignment of Error No. 2:
{¶ 30} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION BY VIOLATING THE APPELLANT'S RIGHT TO DUE PROCESS AND
RIGHT TO CROSS-EXAMINATION OF WITNESSES.
{¶ 31} In his second assignment of error, Husband initially argues it was error for the
domestic relations court to overrule his objection to the magistrate's decision barring him
from presenting any evidence or calling any witnesses (other than himself) during any part
of the three-day final divorce hearing. To support this claim, Husband argues that denying
him the ability to present his case constitutes a violation of his due process rights. The
magistrate, however, did not simply decide on a whim that it was going to prohibit Husband
from presenting his case due to some perceived bias against him. The magistrate even
stated, on the record, that Husband had "never offended" the magistrate and that the
magistrate was not mad at Husband. The record instead indicates the magistrate issued
this decision as a discovery sanction based on Husband's repeated failures to comply with
the domestic relations court's local rules and apparent refusal to comply with Wife's
discovery demands. As noted above, this included Husband's failure to comply with the
domestic relations court's Local Rule 3.7, entitled "Exchange of Exhibits and Witness Lists,"
which provides:
Both parties shall exchange all exhibits expected to be used at
trial and a list of all witnesses to be called to testify at trial at
least seven days prior to trial, unless otherwise ordered.
{¶ 32} The domestic relations court overruled Husband's objection upon finding
Husband "chose to hide information, then failed to disclose his evidence, and there can only
be one remedy when litigants elect this 'strategy.' They do not get to present their case."
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We find no error in the domestic relations court's decision.7 That is to say, we find the
discovery sanction imposed by the magistrate, which was subsequently affirmed and
adopted by the domestic relations court, was not an abuse of discretion. See Nakoff v.
Fairview Gen. Hosp., 75 Ohio St.3d 254, 256 (1996) ("The discovery rules give the trial
court great latitude in crafting sanctions to fit discovery abuses. A reviewing court's
responsibility is merely to review these rulings for an abuse of discretion."). This is because,
under the facts and circumstances of this case, imposing that type of discovery sanction for
Husband's willful noncompliance with the domestic relations court's local rules and Wife's
discovery demands was not arbitrary, unreasonable, or unconscionable. See Nead v.
Brown Cty. Gen. Hosp., 12th Dist. Brown No. CA2005-09-018, 2007-Ohio-2443, ¶ 17
("exclusion of otherwise reliable and probative evidence is an extreme sanction for a
discovery violation and a trial court should exclude evidence only when clearly necessary
to enforce willful noncompliance or to prevent unfair surprise"); see, e.g., Black v. Hicks, 8th
Dist. Cuyahoga No. ¶ 108958, 2020-Ohio-3976, ¶ 61 (exclusion of evidence as a discovery
sanction "was warranted by appellants' utter failure to comply with [appellee's] discovery
requests"). Therefore, finding no error, Husband's first argument lacks merit.
{¶ 33} Husband also argues it was error for the domestic relations court to overrule
his objection to the magistrate's decision barring him from cross-examining Wife at the
October 7, 2020 final divorce hearing about matters that Wife had testified to at the final
divorce hearing held on September 18, 2019. This court, just like the domestic relations
7. Husband tried to introduce several exhibits at the final divorce hearing held on October 7, 2020. The
magistrate refused to accept any of Husband's exhibits noting that it did not matter that Husband was at that
time appearing pro se because "whether it was Attorney Kasper, Attorney Smith, or Attorney Webb
representing you, none of those were coming in the record" given its earlier May 10, 2019 decision. The
magistrate explained that the same was not true for Wife "because she followed the rules of evidence. You
did not. Therefore, the penalty is you can't present the exhibits." The magistrate further explained to Husband
"that's not a you thing. If it was Mr. Webb here, if it's Mr. Kaspar, I would tell them what I'm telling you. You've
already missed the deadline, you can't present it."
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court before us, believes the magistrate should have given Husband the full opportunity to
cross-examine Wife regarding the testimony she provided at both the September 18, 2019
and October 7, 2020 final divorce hearings. However, upon review of the transcript of the
October 7, 2020 final divorce hearing, it is clear that Husband did not proffer what he
believed Wife would testify to had he been given that opportunity. "'[W]e adhere to the long-
standing rule that a reviewing court will uphold the trial court's decision to exclude evidence
if the record does not contain a proffer.'" Clamp v. Szekeres, 5th Dist. Stark No. CA-9103,
1993 Ohio App. LEXIS 1601, *3 (Mar. 15, 1993), quoting State v. Chapin, 67 Ohio St.2d
437, 444 (1981).
{¶ 34} This holds true even in circumstances such as these where Husband was at
that time appearing pro se. This is because pro se litigants are "not to be accorded greater
rights and must accept the results of their own mistakes and errors, including those related
to correct legal procedure." Cox v. Zimmerman, 12th Dist. Clermont No. CA2011-03-022,
2012-Ohio-226, ¶ 21. Therefore, because this court has nothing to review, Husband cannot
demonstrate any resulting prejudice from the domestic relations court's decision. See, e.g.,
Fox v. Fox, 12th Dist. Clermont No. CA2013-08-066, 2014-Ohio-1887, ¶ 12-17 (domestic
relations court did not abuse its discretion in excluding so-called "pre-divorce evidence of
the relationship between Wife and [another man]" where "Husband did not proffer the
substance of the evidence into the record"). Accordingly, finding no error, Husband's
second argument also lacks merit.
{¶ 35} In light of the foregoing, and finding no merit to either of the two 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:
{¶ 36} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
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DISCRETION BY ISSUING AN UNREASONABLE AND ARBITRARY PURGE ORDER
THAT IS IMPOSSIBLE TO COMPLY WITH.
{¶ 37} In his third assignment of error, Husband argues the domestic relations court
erred by issuing an unreasonable and arbitrary purge order that was impossible for him to
comply with. We disagree.
{¶ 38} "A [domestic relations] court may employ sanctions to coerce a party who is
in contempt into complying with a court order." Rose v. Rose, 8th Dist. Cuyahoga No.
99933, 2013-Ohio-5136, ¶ 7. However, "[i]n a case such as this one, involving a finding of
civil contempt, a court must provide the contemnor a reasonable opportunity to purge the
contempt." Cornell v. Shain, 1st Dist. Hamilton No. C-19072, 2021-Ohio-2094, ¶ 46, citing
Burchett v. Miller, 123 Ohio App.3d 550, 552 (6th Dist.1997). "A trial court abuses its
discretion when it orders conditions for purging that are unreasonable or impossible for the
contemnor to meet." Mackowiak v. Mackowiak, 12th Dist. Fayette No. CA2010-04-009,
2011-Ohio-3013, ¶ 51. "The determination of whether a particular purge condition is
unreasonable or impossible varies on a case-by-case basis." Schuman v. Cranford, 4th
Dist. Vinton No. 02CA571, 2003-Ohio-2117, ¶ 11. "Unsubstantiated claims of financial
difficulties do not establish an impossibility defense to a contempt charge." Wagshul v.
Wagshul, 2d Dist. Montgomery No. 23564, 2010-Ohio-3120, ¶ 41; Pettit v. Pettit, 8th Dist.
Cuyahoga No. 64582, 1993 Ohio LEXIS 6200, *12 (Dec. 23, 1993) ("[a]n unsupported
statement of 'I have been broke' will not establish an inability to comply with a court order
of child support").
{¶ 39} In this case, we can find no abuse of discretion in the domestic relations
court's decision setting purge conditions that required Husband to (1) make "steady
payments" on his $34,500 child support arrearage, in addition to regular child support, for
a period of three years; (2) reimburse Mother $1,000 for the expenses she unnecessarily
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incurred due to Husband's absence at the originally scheduled May 9, 2019 final divorce
hearing; and (3) pay Mother an aggregate, total amount of $8,850 in attorney fees. 8 The
record indicates Husband received more than enough money following his divorce from
Wife to make these payments in the timeframe specified by the domestic relations court
had Husband not continued doing everything in his power to avoid actually doing so. This
is particularly true here when considering the record indicates Husband had paid thousands
of dollars in country club membership fees during the pendency of this case rather than
make any meaningful payments towards the domestic relations court's temporary child
support order.9 "A contemnor's unsupported claims of financial difficulty or an inability to
pay are insufficient to establish that the trial court's conditions are unreasonable." In re
I.L.J., 8th Dist. Cuyahoga No. 109564, 2020-Ohio-5434, ¶ 14. Therefore, finding nothing
unreasonable, arbitrary, or impossible in the domestic relations court's purge order,
Husband's third assignment of error lacks merit and is overruled.
Assignment of Error No. 4:
{¶ 40} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION IN ITS ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES
OF THE PARTIES' MINOR CHILDREN.
{¶ 41} In his third assignment of error, Husband argues the domestic relations court
erred by overruling his objection to the magistrate's decision denying his petition for shared
8. The domestic relations court ordered Husband reimburse Mother the $1,000 in expenses and to pay Mother
the $8,850 in attorney fees by August 15, 2021. Husband claims this only gave him two days to make those
payments. This is incorrect. The domestic relations court's decision ordering Husband to make those
payments was issued on June 18, 2021, not August 13, 2021. Therefore, Husband was actually given 58
days to make those payments, not two.
9. Husband did admit, however, to making $500 monthly child support payments to his other ex-wife with
whom he has another child who is now in his teens. The record indicates this other child support order was
put into place in 2013 when Husband was making $260,000 per year. The record also indicates that Husband
had never attempted to modify that child support order despite Husband now claiming within these divorce
proceedings that his total income had decreased by $200,000 to $60,000.
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parenting and designating Wife as the residential parent and legal custodian of their two
children. We disagree.
{¶ 42} "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 domestic relations 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).
{¶ 43} "When determining whether shared parenting is in a child's best interest, the
[domestic relations] court must consider the additional factors set forth in R.C.
3109.04(F)(2)." Chaney v. Chaney, 12th Dist. Warren No. CA2021-09-087, 2022-Ohio-
1442, ¶ 37, citing 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
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potential for abuse; (4) the 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 domestic relations court's custody determination for an abuse
of discretion. Blessing v. Blessing, 12th Dist. Clermont No. CA2019-01-011, 2019-Ohio-
3951, ¶ 13.
{¶ 44} The domestic relations court did not err by denying Husband's objection to the
magistrate's decision to deny Husband's petition for shared parenting. The domestic
relations court also did not err by denying Husband's objection to the magistrate's decision
designating Wife as residential parent and legal custodian. In reaching this decision, we
believe the magistrate said it best in its February 5, 2021 decision:
The inability to communicate effectively renders the concept of
shared parenting not in the best interest of [J.A.V.] and [E.C.V.]
Further, throughout the pendency of this case [Husband] has
demonstrated he is not interested in working with [Wife].
Rather, [Husband] prefers to belittle [Wife], at times in front of
the children, drive by [Wife's] residence to make [Wife]
uncomfortable, object during questioning at trial to make sure
Mother's sister refers to herself as "stepsister," and in general
has not provided any examples of actions he has taken to
improve the situation for [Wife] and the children.10
Requesting shared parenting is easy. However, [Husband] has
failed to demonstrate how shared parenting would benefit
[J.A.V.] and [E.C.V.], or what procedures he has implemented
to help his communication with [Wife].
10. The record indicates the comments Husband made to Wife in front of their two children include, but are
not limited to, Husband calling Wife a "bitch" and a "gold digger," Husband sarcastically referring to Wife as
"mother of the year," and Husband stating to Wife that he was going to "bury her ass" in these divorce
proceedings. The record also indicates Husband gave an anniversary card to Wife signed by both children
after Wife filed her complaint for divorce.
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{¶ 45} The fact that Husband clearly loves his children and wants to be with them
does not change this decision. This is because, as noted above, the primary concern is
J.A.V.'s and E.C.V.'s best interest, not whether Father loves, cares for, and wants to be with
his children. See Hall v. Hall, 12th Dist. Butler No. CA2018-05-091, 2019-Ohio-81, ¶ 26 (a
father's "wishes about the care and control of his children * * * should not be placed above
the children's best interests"). To hold otherwise would render the best-interest factors set
forth in R.C. 3109.04(F)(1) and R.C. 3109.04(F)(2) meaningless to a domestic relations
court when awarding parental rights and responsibilities under R.C. 3109.04. That is not
what the law plainly states. Therefore, finding no error, Husband's fourth assignment of
error lacks merit and is overruled.
Assignment of Error No. 5:
{¶ 46} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION BY IMPUTING INCOME TO THE APPELLANT IN THE AMOUNT OF
$127,708.00 FOR THE CALCULATION OF CHILD SUPPORT.
{¶ 47} In his fifth assignment of error, Husband argues the domestic relations court
erred by overruling his objection to the magistrate's decision "imputing income" to him in
the amount of $127,708 for child support purposes. The domestic relations court, however,
did not "impute income" to Husband. The domestic relations court, just like the magistrate
before it, instead accepted the only evidence establishing Husband's income that the
domestic relations court found credible: the expert testimony offered by Wife's vocational
expert, Dr. Carl W. Sabo. Therefore, given the domestic relations court's finding no credible
evidence was presented indicating Husband's total income was closer to $60,000 per year,
or, at the very least, less than $120,000 per year, we find the domestic relations court did
not err by overruling Husband's objection to the magistrate's decision "imputing income" to
him in the amount of $127,708 for child support purposes. Accordingly, finding no error,
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Husband's fifth assignment of error is overruled.
Assignment of Error No. 6:
{¶ 48} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION IN ITS DIVISION OF PROPERTY AND THE CLASSIFICATION OF
MARITAL AND SEPARATE PROPERTY.
{¶ 49} In his sixth assignment of error, Husband initially argues the domestic
relations court erred by overruling his objection to the magistrate's decision finding the
proper date to value his and Wife's financial accounts for property division purposes was
October 12, 2017, the date that Wife filed her complaint for divorce. We disagree.
{¶ 50} "Generally, the proper date for the termination of a marriage, for purposes of
property division, is the date of the final divorce hearing." Dellinger v. Dellinger, 12th Dist.
Butler No. CA2015-12-229, 2016-Ohio-4995, ¶ 20, citing Fillis v. Fillis, 12th Dist. Clermont
No. CA2008-10-093, 2009-Ohio-2808, ¶ 8. This is a "statutory presumption" that is set forth
under R.C. 3105.171(A)(2)(a). Williams v. Williams, 12th Dist. Warren No. CA2012-08-074,
2013-Ohio-3318, ¶ 24. However, pursuant to R.C. 3105.171(A)(2)(b), if the domestic
relations court finds the time period between the date of the marriage and the date of the
final divorce hearing would be "inequitable," the domestic relations court may select dates
that it considers equitable in determining marital property. See Doyle v. Doyle, 12th Dist.
Warren No. CA2006-02-027, 2007-Ohio-2554, ¶ 15. Because the domestic relations court
has broad discretion to select dates it considers equitable, and because the determination
of the termination date of a marriage is largely a question of fact, this court will not disturb
the domestic relations court's finding absent an abuse of discretion. Roberts v. Roberts,
12th Dist. Clinton Nos. CA2012-07-015 and CA2012-07-016, 2013-Ohio-1733, ¶ 28. "The
abuse of discretion standard is based upon the principle that a trial court must have the
discretion in domestic relations matters to do what is equitable given the facts and
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circumstances of each case." Jefferies v. Stanzak, 135 Ohio App.3d 176, 179 (12th
Dist.1999), citing Booth v. Booth, 44 Ohio St.3d 142, 144 (1989)
{¶ 51} After a full and thorough review of the record, we find no error in the domestic
relations court's decision finding the date Wife filed her complaint for divorce, October 12,
2017, was the proper date to value his and Wife's financial accounts for property division
purposes. This is because, as the record indicates, this was the closest date upon which
the domestic relations court was provided credible, documentary evidence as to the
valuation of those disputed financial accounts. This is also because, as this court has stated
previously, "the act of filing a divorce complaint formally and clearly shows the spouse's
intent regarding the marriage." Roberts, 2013-Ohio-1733, at ¶ 29 (domestic relations court
did not err by using the date that appellee filed for divorce as an equitable termination date
of a marriage for purposes of property division given "the lengthy history" of the case and
the "somewhat complicated financial transactions and appraisals" involved in the divorce
proceedings). That the domestic relations court never made an explicit "equitable" finding
is immaterial. Nothing within R.C. 3105.171(A)(2)(b) requires the domestic relations court
to explicitly state an "equitable" or "inequitable" finding. The statute only requires the
domestic relations court to "select dates that it considers equitable in determining marital
property" if it "determines that the use of either or both of the dates specified [R.C.
3105.171(A)(2)(a)] would be inequitable." That is exactly what the domestic relations court
did here.
{¶ 52} In so holding, we note that Husband does not specifically state what date he
believes the domestic relations court should have used to value his and Wife's financial
accounts for property division purposes. Husband merely claims the domestic relations
court should have used "the date of the divorce hearing." But, as set forth in the recitation
of facts above, given the numerous continuances the domestic relations court afforded
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Husband throughout the pendency of this case, the final divorce hearing took place on three
different dates that spanned over a year. Under these circumstances, it was certainly
reasonable for the domestic relations court to select a specific date, like the date that Wife
filed her complaint for divorce, rather than some other date before, after, or somewhere in
between. Had that been the case, we are certain that Husband would have objected to that
date, as well. Therefore, finding no error in the domestic relations court's decision finding
the date Wife filed her complaint for divorce, October 12, 2017, was the proper date to value
Husband's and Wife's financial accounts for property division purposes, Husband's first
argument lacks merit.
{¶ 53} Husband also argues the domestic relations court erred by overruling his
objection to the magistrate's decision classifying his and Wife's marital and separate
property. To support this argument, however, Husband states only that:
the trial court erred in allocating [Husband's] separate property
to [Wife] and in the determination of marital and separate
property. The trial court's exclusion of evidence by [Husband]
prevented him from establishing his separate property interests
in the PNC Trust account x3515 and resulted in an inequitable
and unjust division of property.
This type of argument is a clear violation of App.R. 16(A)(7), an argument that this court
may disregard in accordance with App.R. 12(A)(2). See, e.g., Ossai-Charles v. Charles,
12th Dist. Warren Nos. CA2010-12-129 and CA2011-01-007, 2011-Ohio-3766, ¶ 21 (citing
App.R. 12[A][2] in a divorce case when declining to address the appellant's argument
alleging the domestic relations court erred by "failing to hold [appellee] responsible for their
children's past due healthcare expenses" because appellant "failed to comply" with App.R.
16[A][7]); In re L.S., 12th Dist. Brown Nos. CA2019-03-001 and CA2019-03-002, 2019-
Ohio-3143, ¶ 27, fn. 8 (citing App.R. 12[A][2] in a permanent custody case when declining
to address appellant's ineffective assistance of counsel claim given that appellant "did not
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take the time to support his argument in even the most basic of terms" as required by App.R.
16[A][7]).
{¶ 54} However, even when ignoring this clear violation of the Ohio Rules of
Appellate Procedure, we find no error in the domestic relations court's decision classifying
any Husband's and Wife's marital and separate property. This includes the PNC Bank trust
account specifically identified by Husband within this assignment of error. This is because,
just like with many of Husband's and Wife's other assets, the record is devoid of any
evidence the PNC Bank trust account at issue held any monies that were earned by either
Husband or Wife prior to their marriage on October 8, 2011. "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. Therefore, given the
record properly before this court, the domestic relations court did not err by classifying the
PNC Bank trust account as marital property and dividing the monies held within that account
equally between Husband and Wife. Accordingly, finding no error, Husband's second
argument also lacks merit.
{¶ 55} In light of the foregoing, and finding no merit to either of the two arguments
Husband raised herein in support of his sixth assignment of error, Husband's sixth
assignment of error lacks merit and is overruled.
Conclusion
{¶ 56} For the reasons outlined more fully above, and finding no merit to any of the
arguments raised herein, Husband's six assignments of error lack merit and are overruled.
{¶ 57} Judgment affirmed.
M. POWELL, P.J., and PIPER, J., concur.
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