Owens v. Owens

[Cite as Owens v. Owens, 2022-Ohio-3450.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JASON P. OWENS, : APPEAL NO. C-210488
TRIAL NO. DR-2000165
Plaintiff-Appellant, :
vs. : O P I N I O N.
JACQUELINE OWENS, :
Defendant-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Releations
Division
Judgment Appealed From Is: Affirmed in Part and Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 30, 2022
Daryle C. Tibbs, for Plaintiff-Appellant,
Cathy R. Cook, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Plaintiff-appellant Jason Owens (“husband”) appeals from the divorce
decree entered by the Hamilton County Court of Common Pleas, Domestic Relations
Division. In the divorce decree, the trial court terminated husband’s marriage with
defendant-appellee Jacqueline Owens (“wife”), designated wife the sole residential
parent and legal custodian of the parties’ children, granted husband parenting time,
ordered that husband pay child support, rendered a division of property, and awarded
wife attorney fees. Husband now challenges the trial court’s judgment in four
assignments of error. For the reasons that follow, we affirm the judgment of the trial
court in part, reverse the judgment of the trial court in part, and remand the cause for
further proceedings consistent with this opinion and the law.
I. Factual and Procedural History
{¶2} Husband and wife met in Philadelphia and moved to Ohio together in
2009. They purchased a home together in 2011 and were married on July 12, 2012.
At the time of the marriage, husband held an Equiniti account which contained stock
from The Proctor and Gamble Company (“P&G”). The parties had their first child in
2015 and their second child in 2018. Issues arose during the marriage related to
husband’s sexual addiction issues and infidelity with prostitutes, as well as wife’s use
of pain medication and other mental-health related issues. Husband started seeing a
therapist, and wife engaged in mental-health treatment. The parties also engaged in
couple’s counseling.
{¶3} Ultimately, husband filed for divorce on January 28, 2020. In May of
2020, the parties’ oldest child, L.O., made comments to wife that created a concern of
sexual abuse by husband. Wife took L.O. to the emergency room, where she was told
to follow up with the Mayerson Clinic. L.O. was interviewed by the Mayerson clinic
2
OHIO FIRST DISTRICT COURT OF APPEALS
and wife was told that the Mayerson Clinic would be following up with the Hamilton
County Department of Job and Family Services (“HCJFS”). L.O. was interviewed by
an assessment worker from HCJFS. Wife ultimately learned that the allegations were
not going to be pursued by the authorities.
{¶4} On June 18, 2020, agreed temporary orders were entered that husband
was to have no contact with the children until further order of the court, and husband
was to have exclusive occupancy of the marital residence. On August 18, 2020,
another agreed order was entered providing husband with two hours per week of
supervised visitation. Husband filed a motion for additional parenting time on March
17, 2021, which was granted by the trial court on May 12, 2021. Under the parenting-
time order, husband was to have parenting time with the children on Saturdays from
noon until Sunday at 6:00 p.m., supervised at the home of paternal grandmother, and
Wednesdays from 1:00 p.m. to 7:00 p.m., supervised by “Aunt Kathy” or “Meagan.”
The order provided that, once the children were ready for bed, husband was to say
goodnight, return to and sleep at his own residence, and not return until the morning.
The order also provided that the Wednesday parenting time would be conducted in a
public place. This schedule was to continue for a period of eight weeks, and then,
beginning on July 17, 2021, husband was to have parenting time on alternating Fridays
at 5:00 p.m. until Sunday evening at 6:00 p.m., supervised by paternal grandmother
at her home, and Wednesdays from 1:00 p.m. to 7:00 p.m., supervised by “Aunt Kathy”
or “Meagan.” The requirement for husband to sleep at his own residence was to
remain in place under the new schedule, but the Wednesday visit was no longer
required to be in a public place. The order further provided, “All parenting time
supervision shall be conducted as follows: only the Supervisor shall help the girls
3
OHIO FIRST DISTRICT COURT OF APPEALS
bathe, go to the bathroom, dressing [sic], etc., and the Supervisor shall make sure the
children are not alone with Father at any time.”
{¶5} On June 15, 2021, husband filed a “proposed allocation of parental
rights and responsibilities,” which proposed shared parenting. Hearings were held on
August 10, August 11, August 12, and August 27, 2021. The evidence presented at trial
included testimony from husband, wife, husband’s therapist, wife’s nurse practitioner
from Lee Side Wellness, the parties’ couple’s counselor, the assessment worker from
HCJFS, a social worker and forensic interviewer from the Mayerson Clinic, L.O.’s
therapist, paternal grandmother, two individuals who each completed an appraisal of
the marital home, wife’s attorney, and the guardian ad litem. Two experts in
psychology also testified at the hearing, Dr. Taylor and Dr. Bassman.
{¶6} Dr. Taylor testified that he completed an assessment with husband and
concluded that husband did not display any form of sexual thoughts, behaviors,
beliefs, or attitudes that would be consistent with other males who have been involved
in sexual abuse of a child. When asked if, within a reasonable degree of scientific
certainty, husband was a risk or danger to his daughter, he answered, “No, he’s not.”
{¶7} Dr. Bassman testified that, in situations where there have been
allegations which have not been substantiated, he strongly suggests that a safety plan
be developed. He described a safety plan as the precautions that someone would take
to ensure the safety of the child. He said that L.O. making these statements was a cry
for help, understanding, and compassion. He explained that husband and wife should
help L.O. understand that certain precautions are in place in the relationship. He
clarified that creating a safety plan did not mean that someone was acknowledging
that they did sexually offend. He said, “It’s just meaning that you love the person
4
OHIO FIRST DISTRICT COURT OF APPEALS
enough, that you’re compassionate enough to make some changes in your life, that
you’re really so devoted to your children that you’ll go through this process.”
{¶8} Dr. Bassman’s report recommended that husband engage in individual
psychotherapy to assist with understanding and addressing the dynamics of his
intimacy issues, to assist in understanding the dynamics of his daughter making the
allegations of sexual abuse, and to acquire resources that would help him, including
developing a prevention and safety plan to ensure his daughter’s safety. He advised
that it would be helpful to have a third-party professional, other than husband’s
therapist, evaluate husband’s progress in this regard. He also advised that more than
one session per month of psychotherapy would be needed for this to be accomplished.
{¶9} The trial court entered a “final order” regarding all issues on September
2, 2021, and entered a decree of divorce on September 16, 2021. The trial court
awarded sole residential and legal custody of the children to wife and ordered that
husband was to have parenting time on the first, second, and fourth Saturday of the
month beginning at 11 a.m. until 5 p.m., and Wednesdays after school until 6 p.m. The
trial court also ordered that (1) husband’s parenting time need not be supervised,
except that naps–if required–should be supervised by paternal grandmother at her
house, (2) holidays should be according to the court’s standard parenting order, but
no overnights or extended time shall occur, (3) husband must have another adult
available during his parenting time to take the children to the restroom if necessary
and is not do so himself, and (4) the children should be encouraged to speak on the
telephone to husband or wife on the other’s parenting time and, if either child requests
such contact, the means shall be provided to them with no discouragement. The court
additionally stated:
5
OHIO FIRST DISTRICT COURT OF APPEALS
A ‘safety plan’ needs to be developed to allow the minor child to
feel safe as recommended by Dr. Bassman, including but not limited to
total honesty in his dealings with the child and her mother, making sure
the child is aware that only honesty is acceptable and that she will be
heard no matter what she has to say, and to incorporate compassion in
his dealings with the child and her mother. Father should follow the
recommendations of Dr. Bassman (including participating in
psychotherapy for more than one session per month with a psychologist
who has been provided with a copy of Dr. Bassman’s report, not a sex
therapist). Once he has done so, Father may file a motion to lift the
restrictions of his parenting time and/or increase parenting time.
{¶10} The trial court further ordered that husband pay child support, effective
June 1, 2020. Regarding the division of property, in relevant part, the trial court found
that all shares of the Equiniti stock should be allocated as marital and found that any
equity in the parties’ home was marital. Finally, the trial court ordered that husband
pay wife $15,000 in attorney fees. Husband timely appealed and now raises four
assignments of error for our review.
III. Law and Analysis
A. First Assignment of Error - Division of Assets
{¶11} In his first assignment of error, husband argues that the trial court erred
in its valuation and division of marital property. Specifically, he challenges the trial
court’s orders related to the marital home and the Equiniti stock. In a divorce
proceeding, the trial court must “determine what constitutes marital property and
what constitutes separate property” and divide the marital property and separate
property equitably between the spouses in accordance with R.C. 3105.171. R.C.
6
OHIO FIRST DISTRICT COURT OF APPEALS
3105.171(B). “Generally, this means that the court should award each spouse his or
her separate property and then distribute the marital estate equally, unless an equal
division would be inequitable.” Boolchand v. Boolchand, 1st Dist. Hamilton Nos. C-
200111 and C-200120, 2020-Ohio-6951, ¶ 5, citing R.C. 3105.171(B)-(D). If an equal
division would be inequitable, the court “shall divide it between the spouses in the
manner the court determines equitable.” R.C. 3105.171(C)(1).
{¶12} Marital property does not include separate property. R.C. 3105.171
(A)(3)(b). Separate property includes “[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.” R.C. 3105.171(A)(6)(a)(ii). “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, “[a]s long as it is traceable, separate property retains its
identity, even when it is commingled with marital property.” Boolchand at ¶ 8, citing
R.C. 3105.171(A)(6)(b), and Peck v. Peck, 96 Ohio App.3d 731, 734, 645 N.E.2d 1300(12th Dist.1994). “The party in a divorce action claiming that specific property owned
when the marriage terminates is not marital but separate has the burden of proof by a
preponderance-of-the-evidence standard.” Id., citing Dunn v. Dunn, 1st Dist.
Hamilton Nos. C-010282 and C-010292, 2002-Ohio-6247, ¶ 14.
{¶13} In making a division of marital property, the court must consider all
relevant factors, including the factors set forth in R.C. 3105.171(F). R.C.
3105.171(C)(1). The court may issue any orders that it determines equitable. R.C.
3105.171(J). In any order for the division of property, “the court shall make written
findings of fact that support the determination that the marital property has been
equitably divided and shall specify the dates it used in determining the meaning
7
OHIO FIRST DISTRICT COURT OF APPEALS
‘during the marriage.’ ” R.C. 3105.171(G). “During the marriage” means either the
period of time from the date of the marriage through the date of the final hearing, or,
if the court determines that the use of either or both of those date would be inequitable,
the period of time between the dates selected and specified by the court as equitable.
R.C. 3105.171(A)(2).
{¶14} “This court reviews ‘the manner in which a domestic-relations court
executes an equitable division of property for an abuse of discretion.’ ” Boolchand, 1st
Dist. Hamilton Nos. C-200111 and C-200120, 2020-Ohio-6951, at ¶ 9, citing McKenna
v. McKenna, 1st Dist. Hamilton No. C-180475, 2019-Ohio-3807, ¶ 9. “An abuse of
discretion is more than a mere error of judgment; it implies that the court’s attitude
was arbitrary, unreasonable, or unconscionable.” (Citations omitted.) Id. “Factual
issues, however, such as those arising in the classification and valuation of property,
are reviewed under the distinct sufficiency-and-manifest-weight-of-the-evidence
standards.” Id., citing McKenna at ¶ 9-10.
A1. Marital Home
{¶15} Husband first argues that the trial court failed to award him his
premarital equity in the marital home. The trial court ordered that husband was to
retain the marital home and found the marital equity in the home to be $230,000,
minus a loan from paternal grandmother of $10,000 and minus the mortgage as of
April 2020. The marital home was purchased, and refinanced, prior to the marriage.
Both loans listed husband as the sole borrower, and husband testified that only his
name was on the deed. However, the holding of title by one spouse “does not
determine whether the property is marital property or separate property.” R.C.
3105.171(H).
8
OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} The parties were living together at the time of purchase and wife
testified that they agreed to purchase the home. Wife also testified that money from
the parties’ joint checking account, where both of their paychecks were deposited, was
used to purchase the home. Wife submitted as evidence a letter, dated November 27,
2009, where she gave authorization for husband to use funds from their joint checking
account when purchasing the home. While husband testified that the money used at
closing was money loaned to him from his mother and grandmother, the testimony
from his mother was that she loaned husband $10,000. The “cash from borrower”
presented at the time of purchase was $13,324.11. Thus, the money from his mother
and grandmother would not have covered the full cash amount used at closing.
{¶17} Wife further testified that she assisted with completing the necessary
renovations to the home under the first loan. Husband agreed in his testimony that
wife assisted with the renovations. Wife submitted evidence of a carpet receipt, dated
May 30, 2010, that said the carpet was sold to, “Owens & Griffith, Jason Jackie.” Wife
additionally testified that she used settlement money that she received in October
2010 to pay the parties’ Home Depot credit card bill, which she asserted was
accumulated by the parties while completing the renovations. Even further, wife
testified that the mortgage payments were made from the parties’ joint checking
account and submitted evidence showing that the mortgage was paid from their joint
checking account in 2010, 2011, and 2012, all prior to the marriage. Therefore, the
trial court’s determination that any premarital equity in the home should be attributed
to both parties was supported by sufficient evidence and was not against the manifest
weight of the evidence. See Kotch v. Kotch, 178 Ohio App.3d 358, 2008-Ohio-5084,
897 N.E.2d 1191, ¶ 22-24 (5th Dist.). Accordingly, this portion of the assignment of
error is overruled.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Husband next argues that the trial court erred in valuing the marital
home based on a second home appraisal completed by wife in July 2021 rather than
on the first home appraisal completed by both parties in May 2020. “Prior to dividing
a couples’ property and debts, the trial court must determine the duration of the
marriage by pinpointing the time period that will be considered ‘during the
marriage.’ ” Elliot-Thomas v. Lewis, 9th Dist. Summit No. 29164, 2019-Ohio-3870, ¶
5, citing Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-Ohio-3454, ¶ 17. “The
term ‘during the marriage’ is a term of art and is the period that is used to identify
separate and marital property and debts and to value the couples’ property and debt.”
Id. The trial court must specify the dates it used in determining the meaning of “during
the marriage.” R.C. 3105.171(G).
{¶19} “ ‘As a general matter, a trial court should consistently apply the same
set of dates when evaluating marital property that is subject to division and
distribution in a divorce proceeding.’ ” Kachmar v. Kachmar, 7th Dist. Mahoning No.
08 MA 90, 2010-Ohio-1311, ¶ 47, citing Angles v. Angles, 5th Dist. Fairfield No.
00CA1, 2000 Ohio App. LEXIS 4281, *12 (Sept. 15, 2000). “If the circumstances of a
given case so require, the trial court may choose different dates for valuation purposes
so long as the court adequately explains its reasons, and its decision does not
constitute an abuse of discretion.” Id., citing Angles. “However, the trial court abuses
its discretion when it chooses a division date that occurs after the end of the marriage.”
(Citation omitted.) Id. “This is so because ‘[t]he duration of the marriage is critical in
distinguishing marital, separate, and post-separation assets and determining
appropriate dates for valuation.” Id., citing Harris v. Harris, 11th Dist. Ashtabula No.
2002-A-81, 2003-Ohio-5350, ¶ 10.
10
OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} “Trial courts often terminate marriages as of the date of the final
hearing.” Harris at ¶ 10, citing R.C. 3105.171(G); see R.C. 3105.171(A)(2)(a).
“Nevertheless, the Ohio Supreme Court has stated that equity may occasionally
require the trial court to choose a de facto termination of marriage date.” Id., citing
Barish v. Barish, 69 Ohio St.2d 318, 319, 432 N.E.2d 183 (1982); see R.C.
3105.171(A)(2)(b). “Generally, trial courts use a de facto termination of marriage date
when the parties separate, make no attempt at reconciliation, continually maintain
separate residences, separate business activities and/or separate bank accounts.” Id.
at ¶ 11, citing Gullia v. Gullia, 93 Ohio App.3d 653, 666, 639 N.E.2d 822 (8th
Dist.1994).
{¶21} Two home appraisals were completed on the marital home. The first
appraisal was completed by both parties in May 2020 and valued the marital home at
$177,000. The second appraisal was done by wife in July 2021 and valued the marital
home at $230,000. Testimony introduced at trial established that the difference in
values was attributable to an increase in the market conditions between the time of
the first appraisal and the time of the second appraisal.
{¶22} The trial court determined that the parties separated on January 16,
2020, and stated, “That date is an appropriate termination point for the marriage due
to a separation in all aspects of the marriage.” Yet, the trial court used the valuation
for the marital residence that occurred in July 2021. While no evidence was presented
of the value of the residence as of January 16, 2020, the first appraisal completed by
both parties in May 2020 was substantially closer to the marriage termination date
than the appraisal done by wife in July 2021. Thus, the first appraisal was more
representative of the value of the home at the time of termination, particularly where
the evidence showed that there was an unprecedented substantial increase in the
11
OHIO FIRST DISTRICT COURT OF APPEALS
housing market between the marriage termination date and the date of valuation for
the second appraisal.
{¶23} Further, while the trial court explained that the current market
condition was the attributing factor for the difference in values, it did not explain why
utilizing the second appraisal value would result in a more equitable distribution of
the parties’ property. See Angles, 5th Dist. Fairfield No. 00CA1, 2000 Ohio App.
LEXIS 4281, at *13-14. Therefore, we hold that the trial court abused its discretion in
utilizing a valuation date well beyond the date it determined to be the last date “during
the marriage” when there was an available valuation done much closer in time to the
date of termination that better represents the value of the home as of the termination
of the marriage. See Kramer v. Kramer, 10th Dist. Franklin No. 18AP-933, 2019-
Ohio-4865, ¶ 34-39. Accordingly, we sustain this portion of the assignment of error.
A2. Equiniti Stock
{¶24} Husband argues that the trial court erred in determining that there was
insufficient tracing evidence to award him his premarital shares of the Equiniti stock.
The trial court found that the parties had an Equiniti P&G stock account, which
husband opened prior to the marriage, that voluntary contributions were made to the
account during the marriage, and that husband failed to sufficiently trace his
premarital shares as his separate property. Accordingly, the trial court ordered that
the 346.251 shares in the account as of the last date of the marriage be equally divided,
resulting in an award of 173.12 shares to wife.
{¶25} Husband explained in his testimony that the Equiniti account was a
dividend reinvestment account. He said, “So every time there’s a dividend, it
automatically gets reinvested into the company.” He submitted evidence showing the
share balance summaries for the Equiniti account at the relevant points in time and
12
OHIO FIRST DISTRICT COURT OF APPEALS
the transactions that occurred within the account. This evidence showed that husband
had 293.502 shares of P&G stock as of July 23, 2012. Husband testified that he
purchased some of these shares growing up, but a lot were received as gifts from his
family. No plan distributions or any other transaction occurred in the account
between the date of the marriage, July 12, 2012, and July 23, 2012, the date of the first
share balance summary in the record. The number of shares in the account remained
the same as of August 13, 2012. However, on August 14, 2012, the share balance
decreased to 199.976 shares. The list of transactions reflects that 93.526 shares were
sold on August 14, 2012. After this sale, no additional sale of shares occurred during
the marriage. The voluntary contributions to the account began on August 24, 2012,
after the date of the parties’ marriage and after the sale of shares occurred, and
continued over the duration of the marriage. Both parties agreed that all voluntary
contributions were made during the marriage. As of January 1, 2020, the share
balance in the account had increased to 346.251.
{¶26} From this evidence, we know that the shares that were sold were sold
from husband’s premarital shares, and we know that the remaining 199.676 shares
after the sale were husband’s remaining premarital shares. No evidence was presented
to indicate that these shares did not remain in the account as of the last date that the
trial court considered to be during the marriage, January 16, 2020.
{¶27} The trial court found that all the shares in the account were marital after
finding that husband failed to present sufficient tracing evidence to show that any
shares remained his separate property after being commingled with the marital
shares. However, as pointed out above, husband presented evidence showing that no
additional sale of shares occurred after the sale on August 14, 2012. So, we know that
husband’s remaining premarital shares were still in the account at the time of
13
OHIO FIRST DISTRICT COURT OF APPEALS
termination. Thus, husband’s evidence was sufficient to show, by a preponderance of
the evidence, that 199.976 shares of the total shares in the account remained his
separate property. Husband appears to argue that he should have been allocated the
full 293.502 shares that were present in the account at the time of the marriage.
However, 93.526 shares of his premarital shares were clearly sold. Nevertheless,
husband’s remaining premarital shares should have been awarded to him as his
separate property and deducted from the amount of shares present in the account as
of the last date of the marriage before any division occurred. Accordingly, we sustain
this portion of the assignment of error as to the 199.976 shares remaining in the
account after the sale on August 14, 2012.
B. Second Assignment of Error - Child Custody and Parenting Time
{¶28} In his second assignment of error, husband argues that the trial court
abused its discretion by granting custody of the parties’ minor children to wife and
granting him “such minimal parenting time.”
B1. Parental Rights and Responsibilities
{¶29} In any divorce proceeding, upon hearing the testimony of either or both
parents, “the court shall allocate the parental rights and responsibilities for the care of
the minor children of the marriage.” R.C. 3109.04(A). “Either parent or both parents
of any children may file a pleading or motion with the court requesting the court to
grant both parents shared parental rights and responsibilities for the care of the
children in a proceeding held pursuant to division (A) of [R.C. 3109.04].” R.C.
3109.04(G). “If a pleading or motion requesting shared parenting is filed, the parent
or parents filing the pleading or motion also shall file with the court a plan for the
exercise of shared parenting by both parents.” Id. If at least one parent files a pleading
14
OHIO FIRST DISTRICT COURT OF APPEALS
or motion and a shared-parenting plan pursuant to R.C. 3109.04(G), but the plan for
shared parenting is not in the best interest of the children,
the court, in a manner consistent with the best interest of the children,
shall allocate the parental rights and responsibilities for the care of the
children primarily to one of the parents, designate that parent as the
residential parent and the legal custodian of the child, and divide
between the parents the other rights and responsibilities for the care of
the children, including, but not limited to, the responsibility to provide
support for the children and the right of the parent who is not the
residential parent to have continuing contact with the children.
R.C. 3109.04(A)(1).
{¶30} “When making the allocation of the parental rights and responsibilities
for the care of the children under [R.C. 3109.04] * * *, the court shall take into account
that which would be in the best interest of the children.” R.C. 3109.04(B)(1). In
determining the best interest of the children, the court must consider all relevant
factors, including, but not limited to, the factors expressly listed in R.C. 3109.04(F)(1).
In determining whether shared parenting is in the best interest of the children, the
court must consider all relevant factors, including but not limited to, the factors
expressly listed in R.C. 3109.04(F)(1) and (2), and R.C. 3119.23.
{¶31} “Although a trial court must follow the dictates of R.C. 3109.04 in
deciding child-custody matters, it enjoys broad discretion when determining the
appropriate allocation of parental rights and responsibilities.” Cwik v. Cwik, 1st Dist.
Hamilton No. C-090843, 2011-Ohio-463, ¶ 41, citing Miller v. Miller, 37 Ohio St.3d
71, 74, 523 N.E.2d 846 (1988). This court has noted that “ ‘[t]he knowledge a trial
court gains through observing the witnesses and the parties in a custody proceeding
15
OHIO FIRST DISTRICT COURT OF APPEALS
cannot be conveyed to a reviewing court by a printed record.’ ” Id., quoting Miller.
Accordingly, we review the trial court’s determination of custody for an abuse of
discretion. Id. “Only in cases where the ‘court’s decision regarding the child’s best
interest is not supported by competent, credible evidence’ should we find an abuse of
discretion.” Hatfield v. Hatfield, 1st Dist. Hamilton No. C-210295, 2022-Ohio-737, ¶
6, quoting In re K.S., 1st Dist. Hamilton No. C-190754, 2020-Ohio-6863, ¶ 7.
{¶32} The record demonstrates that the trial court expressly considered the
required factors in reaching its determination. The court found that wife had
requested sole custody and was opposed to shared parenting, while husband was open
to shared parenting and was only requesting sole custody if shared parenting was not
ordered. See R.C. 3109.04(F)(1)(a). The court noted that it did not interview the
children. See R.C. 3109.04(F)(1)(b). While not providing any specific detail, the court
noted that it had considered the interactions between the children, the parents, and
other family members. See R.C. 3109.04(F)(1)(c). The court recognized that the
children were adjusted to their home and care-taking arrangement. See R.C.
3109.04(F)(1)(d). The court found that, while wife was distressed, on pain medication,
struggling to cope, and threatening to cut her wrists in early 2020, she was treated in
an inpatient mental-health facility, was no longer on pain medication and had learned
to cope and successfully deal with the tragedies of her life, and was no longer letting
these circumstances dictate her behavior and parenting. See R.C. 3109.04(F)(1)(e).
Regarding husband, the court found that he was being treated by a sex therapist and
had admitted to seeking sex through the use of pornography and prostitutes during
the marriage, which–according to Dr. Bassman–demonstrated a lack of compassion
and objectification of others for his own pleasure and was ultimately about controlling
others. See R.C. 3109.04(F)(1)(e). However, the court also noted that Dr. Taylor
16
OHIO FIRST DISTRICT COURT OF APPEALS
concluded that husband was not a sex offender and was not likely to offend against
minors. See id.{¶33} The trial court found that any orders would be followed by both parties
as both parties had a history of following court orders. See R.C. 3109.04(F)(1)(f). The
court noted that child-support arrearage was not an issue, and that neither parent had
any intention to relocate. R.C. 3109.04(F)(1)(g) and (j). The trial court recognized
that there was an allegation from L.O. of sexual abuse by husband and found that
continuous and willful denial of visitation was an issue. R.C. 3109.04(F)(1)(h) and (i).
The court acknowledged that the guardian ad litem recommended unsupervised
parenting time, found that the parties had no ability to cooperate, communicate, or
coparent, and found that neither parent had any appreciation or respect for the other
parent. See R.C. 3109.04(F)(2).
{¶34} Beyond that, the court discussed the abuse allegations made by L.O.,
noted that husband vehemently denied that any abuse occurred, and acknowledged
husband’s rationale for why he believed L.O. may have said what she did. However,
the court found that its focus should not be on whether the abuse actually occurred.
Rather, the court said:
What is important to realize is that this is [L.O.]’s current reality,
and [L.O.] must be able to trust that her father will keep her safe.
Scolding her for lying is not the way to do this. As Dr. Bassman testified,
L.O. must be encouraged to talk to anyone and everyone about her fears
and concerns and assure her that she will be believed. It appears that
[L.O.] only feels safe with her mother, and father must realize this and
work to re-establish her trust.
17
OHIO FIRST DISTRICT COURT OF APPEALS
The trial court then stated that husband had yet to accept and articulate what was
necessary to keep L.O. safe mentally and physically. The trial court did not believe
that husband’s therapist was working with him on anything other than his
pornography use and “prostitute use.” The court stated, “Father needs a qualified
psychologist that may be able to assist him with the father-daughter relationship.”
{¶35} Husband argues that the trial court’s decision was an abuse of
discretion. Husband first disagrees with the trial court’s finding related to wife’s
improvement. He recounts the evidence of wife’s behavior at the beginning of 2020
and argues that the trial court should not have dismissed these concerns because they
could happen again in the future. However, the trial court’s finding that wife had
shown significant improvement to the point that her behavior was no longer a concern
is amply supported by the record. The nurse practitioner from Lee Side Wellness
testified that wife’s medical records from that time period were no longer
representative of wife because of the improvements that wife made over the past year.
She described wife as doing exceptionally well, to the point that she only sees wife
every three months. Wife herself also testified about the significant improvements she
has made. Notably, even husband testified that wife was a “different person” now than
she was at the beginning of 2020 and that he did not have any “major issues” with
wife’s care. Finally, L.O.’s therapist testified that wife did well during the parent-
child-interaction therapy and said that mother learned to apply the skills
appropriately. Thus, the trial court’s finding that mother’s mental health was no
longer a concern is supported by the record.
{¶36} Husband also disputes the trial court’s finding that his therapist was
only addressing issues related to pornography and prostitution during his treatment.
However, this finding is supported by the record. Husband’s therapist testified that
18
OHIO FIRST DISTRICT COURT OF APPEALS
the current treatment goals for husband were continuing to identify possible triggers
that could lead husband to wanting to act out sexually, paying attention to current
stressors, implementing coping mechanisms and skills, and maintaining social
supports. There was no mention of working with husband on understanding why the
allegations were made, implementing a safety plan with L.O., or working with husband
on his relationship with his daughter. Thus, the court’s finding that husband was not
working with his therapist in this regard is supported by his therapist’s own testimony.
{¶37} Husband further challenges the trial court’s finding that the parties had
no ability to cooperate, communicate, or coparent. This finding is also supported by
the record. When husband was asked if his communication with wife had improved,
he responded, “sometimes yes, sometimes no.” He said they had bad days and good
days. He admitted that their conversations were fueled by emotions from the
separation and did not always remain focused on the children. Wife testified that she
had concerns about making major parenting decisions with husband because they had
not been able to communicate effectively. She said, “We’re trying and failing a lot.”
Wife also testified that she had issues getting to talk to the children during husband’s
parenting time. Thus, the parties’ own testimony supports the trial court’s finding in
this regard.
{¶38} It is very apparent that the court relied heavily on the testimony of Dr.
Bassman when determining what was in the best interest of the children. Dr. Bassman
testified that a safety plan should be developed to ensure L.O.’s safety. He specified
that husband’s focus should be about reconciliation, and not about being right. When
asked what safety measures husband intended to put into place with L.O., husband
said that he intended to provide a loving home where she felt free to express herself.
However, he also testified that he did not feel that L.O. actually believed anything had
19
OHIO FIRST DISTRICT COURT OF APPEALS
happened and said that he avoids talking to L.O. about the situation. Dr. Bassman
made it very clear in his testimony that, regardless of whether the allegations were
true, not addressing the situation was not the correct approach. He said that this was
a cry for help and that the way to help L.O. was to develop a plan that lets L.O. know
that certain precautions will be taken in the relationship to protect her safety.
Husband did not testify as to any precautions that he had put into place to help protect
L.O. in this way. Therefore, the trial court’s best-interest findings were supported by
the record, and we cannot determine that the court abused its discretion when
allocating the parental rights and responsibilities in this case.
B2. Parenting Time
{¶39} If a divorce proceeding involves a child and the court has not issued a
shared-parenting decree, the court must, in accordance with R.C. 3109.151(C),
make a just and reasonable order or decree permitting each parent who
is not the residential parent to have parenting time with the child at the
time and under the conditions that the court directs, unless the court
determines that it would not be in the best interest of the child to permit
that parent to have parenting time with the child and includes in the
journal its findings of fact and conclusions of law.
R.C. 3109.051(A). “Whenever possible, the order or decree permitting the parenting
time shall ensure the opportunity for both parents to have frequent and continuing
contact with the child, unless frequent and continuing contact by either parent with
the child would not be in the best interest of the child.” Id. “The court shall include in
its final decree a specific schedule of parenting time for that parent.” Id. When
determining whether to grant parenting-time rights to a parent pursuant to R.C.
3109.051, the court must consider all relevant factors, including, but not limited to,
20
OHIO FIRST DISTRICT COURT OF APPEALS
the factors expressly listed in R.C. 3109.051(D), which include the health and safety of
the children. R.C. 3109.051(C) and (D)(7).
{¶40} “When considering parenting time, a trial court must follow the dictates
of R.C. 3109.051, but it enjoys broad discretion when setting parenting time and
determining the conditions under which parenting time will take place.” Cwik, 1st
Dist. Hamilton No. C-090843, 2011-Ohio-463, at ¶ 42. We review the trial court’s
award of parenting time under an abuse-of-discretion standard. Id.{¶41} The trial court expressly stated that it considered the factors set forth in
R.C. 3109.051(D) when allocating parenting time to husband. It is clear that the trial
court’s principal consideration was the health and safety of the children. The court
found that a safety plan needed to be developed which allowed L.O. to feel safe, as
recommended by Dr. Bassman. It expressed that the plan should include husband
participating in psychotherapy more than once per month with a psychologist that is
provided with a copy of Dr. Bassman’s report. The court noted that, once husband has
done so, he can file a motion to lift the restrictions on his parenting time.
{¶42} Husband argues that the trial court abused its discretion by granting
him “minimal” parenting time and implementing parenting time that was more
restrictive than it was under the court’s previous order. However, under the trial
court’s previous order, the parenting time was supervised. Under the order at issue
here, the trial court granted husband unsupervised parenting time, unless the children
were napping. Husband appears to argue that safety of the children could not have
been the trial court’s concern as the court granted some unsupervised parenting time.
However, even under the previous order, husband was not allowed to have overnight
visits with the children. He was required to return to his own residence while the
children slept at paternal grandmother’s home. This is consistent with the current
21
OHIO FIRST DISTRICT COURT OF APPEALS
order as the order does not provide for any overnight visits alone with husband.
Unsupervised overnight visits were obviously a concern for the trial court as the court
also made a specific order that husband was not to have any overnight visits with the
children during the holiday schedule. The restriction that husband could not assist
the children when they were using the restroom also remained in place. It is apparent
that the trial court was considering the health and safety of the children when limiting
husband’s parenting time, as the trial court was required to do under R.C.
3109.151(D)(7). The trial court’s parenting-time order still provides husband with
frequent and continuous contact with the children. Given the nature of the allegations
and the evidence presented regarding the significance of L.O. feeling safe, we cannot
determine that it was an abuse of discretion for the trial court to reduce husband’s
parenting time under the current unsupervised order to ensure the health and safety
of the children. Because we hold that the trial court did not abuse its discretion when
determining parental rights and responsibilities or parenting time, we overrule the
second assignment of error.
C. Third Assignment of Error - Child Support
{¶43} In his third assignment of error, husband argues that the trial court
abused its discretion by backdating the effective date of child support to June 1, 2020.
In a divorce proceeding, “the court may order either or both parents to support or help
support their children, without regard to marital misconduct.” R.C. 3109.05(A)(1).
“In determining the amount reasonable and necessary for child support, including the
medical needs of the child, the court shall comply with Chapter 3119. of the Revised
Code.” Id. “The date chosen for the effective date of child support is reviewed under
an abuse of discretion standard.” Portis-Phillips v. Phillips, 2d Dist. Clark No. 2016-
CA-34, 2016-Ohio-7803, ¶ 32, citing In re P.J.H., 196 Ohio App.3d 122, 2011-Ohio-
22
OHIO FIRST DISTRICT COURT OF APPEALS
5970, 923 N.E.2d 389, ¶ 18 (2d Dist.). “The effective date can be the date a motion is
filed or ‘some other date that coincided with an event of significance in relation to the
grounds for child support that was ordered.’ ” Id., quoting P.J.H. at ¶ 20. An abuse of
discretion “means that a trial court’s decision was unreasonable, arbitrary or
unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶44} Husband argues that the trial court abused its discretion by backdating
the effective date of his child-support obligation to June 1, 2020, as June 2020 “does
not relate to anything of note in this case.” The trial court noted in its order that the
parties were initially sharing the children on an equal-time basis, but mother started
having the children on a full-time basis starting in May 2020 when the abuse
allegations occurred. The parties’ testimony was that the allegations arose in May
2020, and agreed temporary orders were entered on June 18, 2020, ordering that
husband was to have no contact with the children until further order of the court.
Thus, the trial court’s effective date coincided with the significant event that mother
began having the children on a full-time basis. Therefore, the trial court did not abuse
its discretion in backdating the support obligation and this assignment of error is
overruled.
D. Fourth Assignment of Error - Attorney Fees
{¶45} In his fourth and final assignment of error, husband argues that the trial
court abused its discretion by granting wife an award of attorney fees. In a divorce
action, “a court may award all or part of reasonable attorney’s fees and litigation
expenses to either party if the court finds the award equitable.” R.C. 3105.73(A). “In
determining whether an award is equitable, the court may consider the parties’ marital
assets and income, any award of temporary spousal support, the conduct of the parties,
23
OHIO FIRST DISTRICT COURT OF APPEALS
and any other relevant factors the court deems appropriate.” Id. We review the trial
court’s award of attorney fees under R.C. 3105.73(A) for an abuse of discretion. Cwik,
1st Dist. Hamilton No. C-090843, 2011-Ohio-463, at ¶ 102.
{¶46} The trial court awarded wife $15,000 in attorney fees. Husband argues
that this was an abuse of discretion. We agree. In awarding attorney fees, the trial
court first recognized that many of the issues in the case were complicated by the
allegations of abuse and the need for so many professionals and noted that there were
also multiple issues related to mother’s mental health and medication use. It then
found that both parties were struggling to afford the expensive litigation but found
that husband had a history of getting financial help from his mother without the need
for repayment. The trial court stated, “Equity requires this Court to weigh the various
financial situations of the parties and compensate for the unequal ability to afford the
litigation.”
{¶47} While R.C. 3105.73(A) gives the court the discretion to consider the
parties’ income when making a determination on attorney fees, it does not give the
trial court discretion to consider the income of a party’s family members without any
additional testimony or evidence to indicate that such family member would be willing
to provide the needed assistance. There was no testimony or evidence presented that
husband’s family would be willing to assist him with the costs of litigation. Because
the award was based on speculation, we hold that it was unreasonable for the trial
court to assume that husband could get assistance from his family based solely on the
testimony that husband had previously received two unrelated loans from his family,
particularly when considering that it was wife who testified that she had been receiving
assistance from her family with paying for the cost of litigation. Therefore, we sustain
this assignment of error.
24
OHIO FIRST DISTRICT COURT OF APPEALS
IV. Conclusion
{¶48} We overrule the first assignment of error in part as to the premarital
equity in the home and overrule the second and third assignments of error. We sustain
the first assignment of error in part as to the marital equity in the home and the
Equiniti Stock and sustain the fourth assignment of error. The cause is remanded for
further proceeding consistent with this opinion and the law. On remand, the trial
court is to enter new orders in accordance with this opinion regarding the marital
equity in the home, the Equiniti Stock, the equalization payment, and attorney fees.
Judgment affirmed in part and reversed in part, and cause remanded.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.
25