Anderson-Fye v. Mullinax-Fye

2024 Ohio 5909

• Court: Ohio Court of Appeals
• Decided: December 19, 2024
• Docket: 113313
• Status: Published

Opinion

[Cite as Anderson-Fye v. Mullinax-Fye, 2024-Ohio-5909.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

EILEEN PATRICIA ANDERSON-FYE, :

Plaintiff-Appellant/ Cross-Appellee, : No. 113313 v. :

CHRISTOPHER MULLINAX-FYE, :

Defendant-Appellee/ Cross-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 19, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. DR-19-375430

Appearances:

Stafford Law Co., L.P.A., Nicole A. Cruz and Kelley R. Tauring, for appellant/cross-appellee.

Rosenthal│Lane LLC and Scott S. Rosenthal, for appellee/cross-appellant.

EILEEN A. GALLAGHER, P.J.:

Former spouses, plaintiff-appellant/cross-appellee, Eileen Patricia

Anderson-Fye (“Anderson”), and defendant-appellee/cross-appellant, Christopher Mullinax-Fye (“Mullinax”), both appeal from the trial court’s judgment entry

overruling their objections to the magistrate’s decision and from the final decree

issued by the domestic relations court granting Anderson a divorce from Mullinax.

For the following reasons, we affirm.

Factual and Procedural History

The parties were married on May 12, 2001, and three children were

born as issue of the marriage.

On February 13, 2019, Anderson filed a complaint for divorce and a

motion for temporary support. The same day, pursuant to Cuyahoga C.P.,

Dom.Rel., Loc.R. 24, the court issued mutual restraining orders enjoining

Anderson and Mullinax from, among other things, voluntarily liquidating any

retirement plans or withdrawing funds from any bank accounts. Mullinax filed an

answer and counterclaim and, on April 1, 2019, filed a counter-affidavit to

Anderson’s motion for temporary support.

The court appointed a guardian ad litem (“GAL”) for the parties’ three

minor children.1 On July 11, 2019, the parties filed an agreed judgment entry

authorizing the sale of the marital residence located in Solon, Ohio. Following the

sale of the marital residence, the parties agreed to a partial distribution of the sale

proceeds for the payment of various debts, including payment of the JP Morgan

Chase Credit Card ($48,817.91); TLC Landscaping ($10,474.75); the water

1 One child reached the age of majority while the divorce case was pending. department ($624.31); City of Solon Sewer ($1,750); Illuminating Company

($643.08); Dominion Gas ($38.89) and Mary Ellen Herschberger ($520). On

October 7, 2019, additional funds were distributed from the sale proceeds for the

payment of the American Express account ($25,134.40) and Citi Mastercard

($14,707.52).

On October 25, 2019, the parties filed an agreed judgment entry for

temporary support (“October 2019 agreed judgment entry”) whereby Anderson

was ordered to pay the costs and expenses associated with her residence, her

personal expenses and the Nordstrom credit card. Mullinax was ordered to pay his

personal expenses and the expenses associated with his residence. Both parties

were ordered to pay 50 percent of the monthly minimum payments for the Key

Bank overdraft protection account, the Discover account, the USAA account, the

Chase Visa and the Sofi loan account. Further, both parties were ordered to pay 50

percent of the child-related expenses including, but not limited to, extracurricular

activities, school fees and supplies, agreed-upon camps and uncovered medical

expenses.

On January 3, 2020, Anderson filed a motion for an in camera

interview of the minor children which Mullinax opposed.

In a January 10, 2020 order, the court ordered each party to submit to

an alcohol assessment and set forth a temporary, four-week parenting rotation.

On March 5, 2020, Anderson filed a motion to show cause in which

she alleged that Mullinax failed to abide by the terms of the October 2019 agreed judgment entry allocating the parties’ respective financial obligations. On May 1,

2020, Mullinax filed a motion to show cause in which he alleged that Anderson

failed to abide by the terms of the January 10, 2020 temporary order by dropping

the children off late and, in several instances, failing to allow Mullinax to engage in

parenting time with the oldest child.

On May 8, 2020, the court issued a temporary order ordering Mullinax

to participate in reunification counseling with the oldest child which set forth a new

schedule for parenting time between Mullinax and that child.

On June 19, 2020, Anderson filed a motion for a partial release of the

temporary restraining order in place, arguing that such release would allow

Anderson to access retirement funds in order to secure her interest in real property.

Specifically, the motion stated:

[Anderson] purchased a home by way of seller financing on or about July 2019. [Anderson] was unable to obtain traditional financing at the time of the initial purchase due to being unable to obtain an executed release of dower from [Mullinax]. The seller financing agreement terminates on July 27, 2020 at which time [Anderson] must have traditional financing or risk losing possession of the real property to her and the minor children’s detriment.

Mullinax opposed this motion.

Prior to the scheduled trial date, the GAL filed a motion to modify the

temporary parenting time order, noting that the parties’ arrangement had become

untenable and requesting the court adopt a new parenting time order. On

January 12, 2021, the court granted the GAL’s motion and implemented a new

parenting time order, pursuant to which Anderson would have the children from Sunday to Wednesday, Mullinax would have the children from Wednesday to

Friday and the parties would alternate weekend parenting time.

Mullinax filed a motion for an independent psychological and custody

evaluation. The court granted this motion and appointed Dr. Mark Lovinger (“Dr.

Lovinger”) to perform the evaluation. Anderson filed a motion to reconsider that

order, noting that the trial court granted Mullinax’s motion before Anderson filed

a response.

On February 17, 2021, Anderson filed a motion to show cause in

which she again alleged that Mullinax failed to abide by the terms of the October

2019 agreed judgment entry, asserting that Mullinax had failed to pay 50 percent

of the medical, extracurricular and other expenses for the children.

On April 1, 2021, Mullinax filed a motion to compel Anderson to

participate in a psychological evaluation which the trial court granted. Anderson

filed a motion to reconsider that order. As in her previously filed motion to

reconsider, Anderson argued that because the court granted Mullinax’s motion

several days after it was filed, she was deprived of the right to respond, thus

infringing upon her due process rights.

Mullinax filed a motion to show cause related to the court’s order

compelling Anderson’s participation in the custodial evaluation and days later,

Mullinax filed a “preliminary motion to adopt the proposed shared parenting plan.”

Mullinax explained that the “preliminary” qualification was based on Anderson’s

failure to comply with the court’s January 13, 2021 order appointing Dr. Lovinger as the evaluator and with the subsequent order compelling her to submit to the

evaluation.

Anderson filed briefs in opposition to Mullinax’s motion to show

cause as well as his motion to adopt the proposed shared parenting plan.

On June 15, 2021, Anderson filed a motion requesting the court issue

an order to sell the parties’ 2016 Mercedes-Benz SUV because she could not afford

the monthly payments.

On July 2, 2021, Mullinax filed a motion to show cause related to the

October 2019 agreed judgment entry as well as the February 13, 2019 mutual

restraining order; specifically, the affidavit attached to the motion averred that

Anderson had failed to make debt payments as required by the October 2019 agreed

judgment entry.

On July 29, 2021, Mullinax filed a trial brief in which he stated that

he was pursuing sole custody of the parties’ minor children. Anderson filed a trial

brief in which she requested that she be designated as the residential parent and

legal custodian of the parties’ minor children.

On August 9, 2021, Mullinax filed an emergency motion for an order

requiring Anderson to reinstate his health insurance coverage. The same day, the

court issued an order granting that motion and issued an order for Anderson to

“immediately contact her health insurance provider to promptly add Mullinax back

on to her health insurance policy, as the October 25, 2019 Agreed Judgment Entry

requires.” On August 16, 2021, Anderson filed a motion to vacate the court’s August 11, 2021 judgment entry stating that she has provided health insurance coverage for

Mullinax throughout the pendency of the action and which is currently in place.

Anderson filed a motion to disqualify Dr. Lovinger as an expert,

asserting that a conflict of interest existed because both she and Dr. Lovinger are

employed at the Case Western Reserve University School of Medicine. Mullinax

opposed that motion.

On August 30, 2021, Anderson filed a motion to modify the

temporary support obligations set forth in the October 2019 agreed judgment entry.

In her affidavit attached to this motion she averred that there had been a substantial

change in circumstances necessitating a modification to the order, including a

change in the parties’ income and a change in the children’s expenses. The affidavit

did not elaborate further on the change in circumstances.

On September 21, 2021, Anderson filed a renewed motion for an in

camera interview of the minor children which the court granted as well as a motion

for a hearing pursuant to Civ.R. 75(N).

On November 22, 2021, Mullinax filed a motion to show cause related

to nonpayment of support and Anderson’s refusal to comply with a psychological

evaluation which Anderson opposed.

On December 21, 2021, Mullinax filed yet another motion to show

cause related to claimed denials of parenting time and Anderson’s continued

refusal to participate in a psychological evaluation. On December 30, 2021, the

magistrate issued an order stating that the parties had reached an agreement to submit briefs and have the court rule on the pending motions on the remaining

issues in lieu of a trial. On December 31, 2021, Anderson filed a motion for

sanctions and a brief in opposition to Mullinax’s motion to show cause.

Meanwhile, on December 23, 2021, the trial court issued an amended

trial order setting forth various procedures for trial, including:

Direct examination of witnesses shall be limited to 60 minutes per witness and cross-examination of witnesses shall be limited to 30 minutes per witness. Evid.R. 611; Regalbuto v. Regalbuto, 8th Dist. Cuyahoga No. 99604, 2013-Ohio-5031; Snyder v. Grant, 8th Dist. Cuyahoga No. 103796, 2016-Ohio-5247, ¶ 29.

The amended trial order also instructed the parties to submit trial briefs including

income tax returns with supporting schedules; valuation of all pension plans or

retirement savings; a list of all stocks, bonds, or other investment vehicles; any

reports from private mental health professionals; a list of predecree motions filed

and not adjudicated and a statement of any disputed issue of law. The amended trial

order further specified that any separate property claims must be supported by

documentary evidence.

The parties filed their respective briefs on pending motions. On

January 18, 2022, Mullinax filed a notice that he served his expert’s report on

Anderson on January 17, 2022.

Trial was continued numerous times at the request of both parties.

Trial was initially set for one day, but the trial in this case ultimately took place on

three dates: February 7, 2022; July 28, 2022 and January 17, 2023. On the first trial date, February 7, 2022, Anderson called Mullinax as

a witness, under cross-examination. Mullinax testified that he had an

undergraduate degree from Florida State University, went through the Navy

Nuclear Power Program and obtained a master’s in business administration

(“MBA”) from Harvard University. He further testified that he served in the United

States Navy for nine years and was honorably discharged as a lieutenant and that,

at the time of trial, he earned $2,500 per month. According to Mullinax, prior to

this position, he was self-employed at a startup and prior to that, he was employed

at Swagelok, making approximately $150,000 per year for over five years.

Mullinax also testified as to his various retirement accounts. He

testified that he inherited stock from his grandfather, his grandmother and his

mother and he also inherited IRA’s from his mother and his grandfather. When

asked how he was supporting himself and covering his monthly expenses, which he

purported were between $5,000 and $7,000, he testified that he was supporting

himself through his salary and through liquidation of an inheritance and he

testified that he was not aware that liquidating these funds may have violated the

mutual restraining orders in place in the divorce proceedings. At the conclusion of

Mullinax’s cross-examination, Anderson’s counsel stated:

Just for the record, so you know I’ve run out of my time. I think I’m at 41 minutes of time so I do appreciate the extra time. Of course for the record I have a lot more cross-examination, but nevertheless I’m done with this witness to keep within Trial Court Guidelines. With respect to parenting, Mullinax testified that he believed it was

in the children’s best interest for them to be with him and pointed to Anderson’s

drinking, her refusal to participate in a psychological evaluation and her making

false accusations against him as reasons for this opinion. Mullinax also testified

that he believed his more structured parenting style was beneficial for the children

and that because Anderson had a higher income, he believed that he should not pay

child and spousal support.

Anderson also testified on the first day of trial. She testified that she

has an undergraduate degree from Brown University and both a master’s degree

and a doctorate in human development and psychology from Harvard University

and that she has worked at Case Western Reserve University since 2007, is a

tenured professor and the founding director of a specialized program in the Case

Western Reserve University School of Medicine. With respect to Dr. Lovinger,

Anderson testified that both she and Dr. Lovinger have appointments in the same

department within the school of medicine.

According to Anderson, Mullinax was unemployed for extended

periods of time and, despite having significant free time, he would not do any

household labor or childcare. She testified that she believed that Mullinax was

deliberately not working during the pendency of this case and that she has always

been the primary caretaker of the children. She further testified that the children,

particularly the two older, “have had a very, very hard time when they have to spend

time at their father’s house.” Anderson also testified that, at least once during the marriage, she

liquidated her retirement funds in order to pay for household expenses and shared

debt. She also testified that she has financially suffered throughout the divorce

proceedings because Mullinax failed to pay for his share of the children’s expenses

and, because the court had failed to rule on a motion permitting her to sell a vehicle

for which she could no longer afford the payments, the car had been repossessed

and, at the time of trial, she was driving a vehicle that she rented from her father.

With respect to her housing situation, Anderson testified that while

she did refer to her “purchase” of a home in a June 2020 motion she filed with the

court, she did not in fact own her home but was living in a home located on Andre

Lane in Solon, Ohio (“the Andre Lane residence”) owned by Carol and Patrick Creek

and that she had a rental agreement with them, which also provided that she had

two years in which to obtain financing to purchase the home.

Anderson also called the GAL as a witness on the first day of trial. The

GAL testified that Anderson was the children’s primary caretaker and was closely

bonded with the children. The GAL testified that the children generally blamed

Mullinax for many of the difficulties they endured throughout the divorce

proceedings, including having to sell the family home and move.

The GAL testified that the older children both experienced suicidal

ideations, and as to one of them, this stemmed from interactions with Mullinax.

With respect to parenting time, the GAL testified that all three children are closer with Anderson and that both of the older children have consistently expressed their

desire to spend more time with her.

Mullinax filed a subpoena seeking documentation relating to any

lease or other agreement into which Anderson entered with Patrick Creek and/or

Carol Creek, as well as any and all contracts or agreements concerning Anderson’s

residence. Anderson filed a motion to quash this subpoena, arguing that it was

improperly seeking new records and documentation after the court’s discovery

deadline. The trial court denied Anderson’s motion to quash.

On March 24, 2022, the court denied Anderson’s motions to show

cause filed on March 6, 2020, and February 17, 2021; Anderson’s motions to modify

temporary support; Anderson’s motion for a hearing pursuant to Civ.R. 75(N); and

Mullinax’s motion to show cause for nonpayment of support.

On April 22, 2022, Mullinax filed an emergency motion for

immediate possession of the parties’ minor children, a motion to show cause related

to Anderson’s refusal to submit to a psychological evaluation and another motion

to show cause related to Anderson’s alleged denial of Mullinax’s parenting time.

On July 11, 2022, the GAL filed a motion to withdraw as GAL as she

had accepted a position as a magistrate. The court granted that motion.

Trial recommenced on July 28, 2022. Mullinax called Sean Saari

(“Saari”) to testify as to the tracing of his claimed separate property. Saari testified

that he was a Certified Public Accountant (“CPA”) and a “Valuation and Financial

Expert” with experience in forensic financial analysis. Anderson’s counsel objected to any classification of Saari as an expert witness and also requested the

opportunity to conduct a voir dire examination of Saari. The court overruled the

objection and permitted Saari to testify as an expert witness.

The record is ambiguous as to whether a voir dire of Saari took place.

While Anderson’s counsel objected numerous times to being unable to voir dire

Saari, the transcript reflects that part of Saari’s cross-examination was,

substantively, voir dire, in which Saari was questioned at length about his

credentials and his experience as an expert on financial tracing in other cases. The

transcript contains a section labeled “Voir Dire Examination of Sean Saari”

immediately after the court instructed counsel to begin cross-examination. The

transcript also contains multiple exchanges between the court and Anderson’s

counsel wherein they debate whether counsel is engaged in voir dire or cross-

examination.

Saari testified that he obtained and reviewed a number of Mullinax’s

accounts, analyzed those accounts and created spreadsheets documenting

transactions within those accounts over the period of time that Mullinax held the

accounts. Specifically, Saari analyzed a T. Rowe Price account ending in 9802-7, a

Vanguard accounts ending in 5031, a Vanguard account ending in 7373, a Vanguard

account ending in 8985 and a Vanguard account ending in 2105.

Saari testified that Mullinax held the T. Rowe Price account prior to

the marriage, and based on his analysis, the entirety of the balance in that account

could be traced to property that Mullinax held prior to the date of the marriage. With respect to Vanguard account 5031, Saari testified that, prior to the date of the

marriage, this account had a balance of $61,559.90. Saari testified that this account

had activity over the course of the marriage, including multiple rollovers and

conversions of other retirement funds. Ultimately, based on the nature of shares in

the account that existed prior to the marriage, Saari determined that 48.1 percent

of the account balance, or approximately $240,000, could be traced to premarital

assets. With respect to Vanguard account 7373, Saari testified that this account was

an IRA account that Mullinax had inherited from his grandfather prior to the date

of the marriage and no deposits were made into the account during the course of

the marriage. With respect to Vanguard account 8985, Saari testified that this was

an IRA account which Mullinax inherited from his mother prior to the date of the

marriage and no deposits were made into the account during the marriage. Finally,

with respect to Vanguard account 2105, Saari testified that, based on his review of

the account and various estate documents, this account contained stock shares that

Mullinax had inherited from his mother and grandfather prior to the date of the

marriage. Specifically, Saari testified that 10,000 shares were inherited from

Mullinax’s grandfather, 838 shares were inherited from his mother and the source

of the remaining 10,034 shares could not be determined. The inherited shares

constituted 51.9 percent of the account balance.

Saari also testified that, while withdrawals from the aforementioned

accounts were included in his analysis, he did not summarize the withdrawal totals

because they were not relevant for tracing purposes to determine what was marital property “because there were not transfers between accounts, so the withdrawals

were taken out and used elsewhere.”

At the conclusion of the second day of trial, the court permitted re-

cross-examination of Mullinax. The court stated that “we’re going to do that for 15

minutes which is generous under the circumstances.”

Mullinax testified that he paid Saari’s $20,000 fee with a

combination of his salary and from selling stock that he had inherited, that he

removed funds from a restrained account but he believed that he had permission to

do so and that the balance of his accounts at the time of trial was approximately

$900,000.

On December 16, 2022, Mullinax filed a motion to show cause related

to Anderson’s denial of his parenting time and a motion for immediate possession

of the minor children alleging that Anderson had failed to inform him of one of their

children’s suicidal ideation and hospitalization.2 Anderson filed briefs in

opposition.

On January 10, 2023, the magistrate issued a decision that made

numerous findings of fact and conclusions of law. In particular, the magistrate

noted that Anderson alleged she was owed $6,740.77 in unpaid expenses and had

accrued $10,119.82 in expenses due to Mullinax’s failure to comply with his

temporary support obligations. For his part, Mullinax alleged that he had made a

2 This court notes that, at a minimum, Mullinax was aware of this because it was

testified to by Anderson, Mullinax and the GAL at trial. variety of monthly payments to Anderson and he thereby satisfied his obligations

under the October 2019 agreed judgment entry. The magistrate found, by a

preponderance of the evidence, that both parties substantially complied with the

October 2019 agreed judgment entry and, therefore, the pending motions to show

cause were denied.

The third and final day of trial was held on January 17, 2023. The

GAL was set to be cross-examined by Mullinax’s counsel. At the outset of the

hearing, Anderson’s counsel objected to the former GAL’s testimony, on the

grounds that she had not participated in the case in almost a year, had formally

withdrawn from the case in July 2022 and was currently employed as a magistrate

in a neighboring county. The court overruled the objections and permitted counsel

to cross-examine the former GAL who appeared via videoconference.

The former GAL testified to the parties’ different parenting styles as

well as their respective relationships with the children. She also testified that

Mullinax repeatedly and consistently told her that Anderson had an alcohol abuse

problem but that her investigation, which included gathering records from the

parties’ former marital counselor and speaking with several witnesses, did not

support those allegations and, ultimately, she was unable to verify that there was

any alcohol abuse concern.

The former GAL testified that all three children were very strongly

bonded to Anderson as well as to each other and that the children had a strained

relationship with Mullinax. The former GAL’s recommendation was for shared parenting because, despite their communication issues related to shared parenting

throughout the pendency of the case, she “felt that they could manage it with

assistance,” and moreover, felt that if one parent were granted sole custody, “it

seemed like that would further alienate the other parent.”

The Magistrate’s Decision

On July 24, 2023, the magistrate issued a decision. The magistrate’s

decision found that the duration of the marriage was May 12, 2001 to February 7,

2022, the first day of trial. The magistrate’s decision found that both parties’

testimony was “generally credible and reliable” and, therefore, was accepted by the

court.

With respect to the division of property, the magistrate’s decision

made the following findings of fact and conclusions of law, in relevant part:

At trial, [Mullinax] called Sean Saari, to testify as an expert in tracing in an attempt to establish a claim of separate property for several financial accounts. However, at trial Mr. Saari testified that he was missing at least five (5) years of records and did not have the documentation necessary to conduct a tracing analysis. Rather, Mr. Saari relied upon the representations of [Mullinax]. Therefore, the Court finds that [Mullinax] failed to satisfy his burden of proof regarding traceability in order to single out certain assets as separate property. However, [Mullinax] was able to satisfy his burden to show that certain retirement accounts are his separate property by way of an inheritance.

The magistrate’s decision awarded the proceeds of the sale of the marital home to

be split equally between the parties and provided that Anderson “shall retain her

interest in [the Andre Lane residence].” With respect to retirement accounts, the magistrate made the

following findings of fact and conclusions of law, in relevant part:

[Anderson] possesses the following retirement accounts, assets, or benefits that are/is marital property:

Case Western Reserve 403(b) Vanguard Retirement Account ending x0272 with an [approximate] value of $316,631.24.

[Mullinax] possesses the following retirement accounts, assets, or benefits that are marital property:

Vanguard Primecap Roth IRA account ending x5031 with an approximate value of $494,683.60.

Vanguard Roth IRA (excluding Primecap) ending x5031 with an approximate value of $153,811.32.

Vanguard Traditional IRA Account ending 8964 with an approximate value of $122,749.91

Vanguard Mutual Fund Account ending x6092 with an approximate value of $63.18

Northrop Grumman Pension Plan with an approximate value of $63,520.72

T-Rowe Price Account ending x9802-7 with an approximate value of $92,958.45

Defendant possesses the following retirement accounts that are his separate property:

Vanguard Truist Stock account ending x2105 with an approximate value of $2,203.96

Vanguard IRA Account ending x7373 with an approximate value of $128,850.90

Vanguard IRA Account ending x8985 with an approximate value of $119,005.99

[Anderson] shall receive the Case Western Reserve 403(b) Vanguard Retirement Account free and clear of any claim of [Mullinax]. [Anderson] shall further receive the sum of $276,993.97 from [Mullinax’s] Vanguard Primecap Roth IRA account ending x5031 as and for her total interest in [Mullinax’s] retirement accounts.

[Mullinax] shall receive the Vanguard Roth IRA (excluding Primecap) ending x5031; the Vanguard Traditional IRA ending x8964; the Vanguard Mutual Fund ending x6902; the Northrop Grumman Pension Plan; and the T-Rowe Price Account ending x9802-7 free and clear of any claim of [Anderson]

[Mullinax] shall receive the retirement accounts in his name that are his separate property, free and clear of any claim of [Anderson.]

The magistrate ordered that the parties be equally responsible for the

marital debt. With respect to spousal support, the magistrate’s decision cited the

statutory factors in R.C. 3105.18(C) and found that an award of spousal support was

neither reasonable nor appropriate.

With respect to parental rights and responsibilities, the magistrate’s

decision found that shared parenting was not in the best interest of the minor

children. The magistrate’s decision allocated parental rights and responsibilities to

Anderson, ordered that she be designated the residential parent and legal custodian

of the minor children and ordered that Mullinax shall have parenting time in

accordance with the court’s Standard Parenting Time Schedule.

With respect to child support, the magistrate’s decision made the

following findings of fact and conclusions of law, in relevant part:

[Anderson] is an Associate Professor of Anthropology at Case Western University. [Anderson’s] annual gross income is $139,267 annually for child support purposes.

[Mullinax] received a Master of Business Administration from Harvard Business School and has historically earned in excess of $175,000 annually. The evidence at trial established that throughout the marriage [Mullinax] significantly outearned [Anderson]. Shortly before [Anderson] filed to end the marriage [Mullinax] voluntarily left his employment and used significant marital funds to invest in start-up opportunities and a franchise, none of which were successful.

During the pendency of this case [Mullinax] had been working for a start-up company earning approximately $59,900. However, [Mullinax] testified at trial that the start-up had been unable to pay him and that he was laid off in 2021. [Mullinax] is currently still unemployed.

The Court finds that pursuant to ORC 3119.01 [Mullinax] is currently unemployed and has been underemployed during the pendency of this case. Therefore, the Court finds that [Mullinax’s] income shall be imputed at $175,000 annually for child support purposes.

[Mullinax] shall be designated the child support obligor (pays support) and [Anderson] shall be designated the child support oblige [sic] (receives support).

[Mullinax] shall pay child support in the amount of $1,559.87 per month, plus cash medical support in the amount of $37.22 per month (total support obligation per month), pursuant to the attached child support worksheet.

[Anderson] shall be designated medical insurance obligor and shall continue to provide medical coverage for the minor children.

The magistrate’s decision provided that the parties were entitled to

claim the minor children as dependents in alternating years. With respect to

attorney fees, the magistrate’s decision provided that each party pay their

respective attorney fees. The magistrate’s decision found that spousal support was

neither reasonable nor appropriate. With respect to temporary support, the

magistrate’s decision found that due to the October 2019 agreed judgment entry, in

which no child support would be exchanged and the parties agreed to split the

children’s expenses equally, there were no arrearages due. Both parties filed objections to the magistrate’s decision and the trial

court issued a judgment entry in which it sustained, in part, and overruled, in part,

the parties’ objections as described below.

Anderson’s first objection to the magistrate’s decision was that the

award of her “interest in real property located at 6690 Andrew Lane, Solon, Ohio

44139” was unsupported by the evidence and should be corrected. Specifically, she

argued that the evidence showed that she did not ever purchase this property and,

therefore, had no interest. The trial court sustained this objection.

Anderson’s second objection to the magistrate’s decision was that the

award of Vanguard account 2105, Vanguard account 7373 and Vanguard account

8985 to Mullinax was an abuse of discretion. The trial court found that, with

respect to Vanguard account 2105, Mullinax was unable to show, by a

preponderance of the evidence, that 10,034 shares, or approximately 49.1 percent

of the account, was his separate property. Therefore, the trial court partially

sustained Anderson’s objection and found that Anderson was entitled to 50 percent

of the value of 10,034 shares in Vanguard account 2105. The court found that, with

respect to Vanguard accounts 7373 and 8985, Mullinax was able to show through

Saari’s expert report that the accounts were inherited from relatives and therefore,

were his separate property.

Anderson further objected, arguing that the order to alternate the

child tax credit, the failure to retroactively modify her temporary support award,

the failure to award her attorney fees, the enforcement of arbitrary time restrictions at trial and the failure to award to her a distributive award all constituted abuse of

discretion. The court overruled these objections.

Mullinax’s first objection to the magistrate’s decision was that the

magistrate erred in setting unreasonable time limits at trial but the court overruled

this objection. His second objection to the magistrate’s decision was that the

magistrate erred in making Anderson the residential parent and legal custodian of

the children and permitting him only standard parenting time. The court overruled

this objection.

Mullinax’s third objection to the magistrate’s decision was that the

magistrate erred in failing to award him all of his separate property: specifically,

his interests in a Key Bank account, his Vanguard account 5031 and his T-Rowe

Price account ending in 9802-7. With respect to the Key Bank account, the court

reviewed Mullinax’s bank records and found that he had a Key Bank account and a

review of the transactions in that account supported his assertion that it was his

separate property. Therefore, the court sustained Mullinax’s objection as to the Key

Bank account as well as the T. Rowe Price account.

With respect to Vanguard account 5031, the court found:

Saari did a tracing analysis for [Mullinax’s] Vanguard IRA account ending x5031. Mr. Saari determined that the account was established in 1998, before the marriage, and consisted of only shares from a Vanguard PRIMECAP Fund (“PRIMECAP”). Mr. Saari found that as of the date of the marriage the account had a balance of $61,599.90. During the marriage, [Mullinax] rolled over other retirement plans into the account and purchased additional PRIMECAP shares. Mr. Saari concluded that 48.1 percent of the PRIMECAP balance is traceable to [C.M.F.’s] pre-marriage property. Upon review, the Court agrees with Mr. Saari’s analysis. [Mullinax] is entitled to 48.1 percent of the PRIMECAP account valued at approximately $494,683.60 as his separate property. The remaining 51.9 percent of the account is marital and [Anderson] and [Mullinax] are each entitled to 50 percent of the marital portion. [Mullinax’s] objection as to Vanguard IRA ending x5031 is sustained.

Mullinax’s fourth objection to the magistrate’s decision was that the

magistrate erred in denying his multiple motions to show cause. Mullinax’s fifth

objection to the magistrate’s decision was that the magistrate erred in its allocation

of marital debts and liabilities. Mullinax’s sixth objection to the magistrate’s

decision was that the magistrate erred in the determination of the parties’ incomes.

Mullinax’s seventh objection to the magistrate’s decision was that the magistrate

erred in the calculation of child support and allocation of the children’s expenses.

Mullinax’s eighth objection to the magistrate’s decision was that the magistrate

erred in failing to award him spousal support. Mullinax’s ninth objection to the

magistrate’s decision is that the magistrate erred in failing to equitably divide the

parties’ real property. Mullinax’s tenth objection to the magistrate’s decision was

that the magistrate erred in failing to award him attorney fees. Mullinax’s eleventh

objection to the magistrate’s decision was that the magistrate erred in finding that

Anderson’s testimony was credible. The court overruled these objections.

Mullinax’s twelfth objection to the magistrate’s decision was that the magistrate

erred in the totality of the division of assets, debts and liabilities. The court

sustained this objection, in part, as described more fully above. On November 2, 2023, the court granted the parties a divorce and

issued a divorce decree, adopting the magistrate’s July 24, 2023 decision, but for

that described above.

Anderson appealed, presenting six assignments of error for our

review:

I. The trial court erred as a matter of law and abused its discretion in admitting [Mullinax’s] expert report of Sean Saari for purposes of identifying and tracing separate property claims.

II. The trial court erred as a matter of law and abused its discretion in dividing the marital property, awarding Mullinax separate property interests that were not properly traced, and failing to award Anderson a distributive award.

III. The trial court erred as a matter of law and abused its discretion by ordering the parties to alternate the child tax credit.

IV. The trial court erred as a matter of law and abused its discretion by failing to retroactively modify Mullinax’s temporary support obligations.

V. The trial court erred as a matter of law and abused its discretion by imposing arbitrary time limitations upon Anderson’s presentation of evidence and testimony at trial.

VI. The trial court erred as a matter of law and abused its discretion by failing to award Anderson her attorney fees and litigation expenses.

Mullinax cross-appealed, presenting four cross-assignments of error

for our review:

I. The trial court erred and abused its discretion in ordering that Anderson be granted sole custody of the minor children.

II. The trial court erred and abused its discretion in failing to find Anderson in contempt of court for her blatant violations of multiple court orders. III. The trial court erred and abused its discretion in its allocation of marital debts and liabilities.

IV. The trial court erred and abused its discretion in its determination of the parties’ incomes.

Anderson filed a motion to stay the trial court’s order for emergency

possession of the minor children to Mullinax; a motion which Mullinax opposed.

This court denied Anderson’s motion to stay, stating:

The order is an interim order. Temporary or interim orders in child custody and related proceedings remain subject to modification pending a final ruling; therefore, they do not constitute final appealable orders under R.C. 2505.02(B). See Overmyer v. Halm, 6th Dist. Sandusky App. No. S-08-021, 2009-Ohio-387, at ¶ 13 (finding the trial court’s order temporarily modifying father’s visitation rights is not a final appealable order of modification of visitation, but instead an interim order). Additionally, the post-decree order is outside the scope of this appeal, which concerns the September 23, 2023 divorce decree. Notice issued.

Legal Analysis

I. Saari’s Expert Report

In her first assignment of error, Anderson argues that the trial court

erred and abused its discretion in admitting Sean Saari’s expert report for purposes

of identifying and tracing separate property claims. Specifically, she argues that the

expert report was untimely, that Saari was not properly qualified as an expert and

that the trial court should not have relied on Saari’s testimony regarding his tracing

of C.M.F.’s separate property.

Civ.R. 26(B)(7)(c) provides:

Other than under subsection (d), a party may not call an expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel. The report of an expert must disclose a complete statement of all opinions and the basis and reasons for them as to each matter on which the expert will testify. It must also state the compensation for the expert’s study or testimony. It must also state the compensation for the expert’s study or testimony. Unless good cause is shown, all reports and, if applicable, supplemental reports must be supplied no later than thirty (30) days prior to trial. An expert will not be permitted to testify or provide opinions on matters not disclosed in his or her report.

A trial court’s decision to admit or exclude evidence, including expert

testimony, will not be disturbed absent an abuse of discretion that causes material

prejudice. Braxton v. Kilbane, 2017-Ohio-185, ¶ 9 (8th Dist.), citing Krischbaum

v. Dillon, 58 Ohio St.3d 58, 66 (1991). Likewise, a determination of whether a

witness is qualified to testify as an expert is a matter within the trial court’s

discretion and will not be reversed “‘“unless there is a clear showing’”” that the trial

court abused its discretion. Victor v. Kaplan, 2020-Ohio-3116, ¶ 56 (8th Dist.),

quoting State v. Lumbus, 2016-Ohio-380, ¶ 95 (8th Dist.), quoting State v. Wages,

87 Ohio App.3d 780, 786 (8th Dist. 1993).

“The concept of voir dire as applied to an expert witness is concerned

with the qualification of that witness as an expert, not the content of his testimony.”

Hirschfeld v. Spring Creek Gravel Co., 1984 Ohio App. LEXIS 9530, at *7 (3d Dist.

Mar. 5, 1984). It is reasonable that, prior to permitting an expert to testify and give

expert opinion testimony, his qualification must be established. Id. The opposing

side is then given an opportunity, before the witness enters any substantive

testimony, to cross-examine solely on the issue of qualification. Id. One purpose of conducting voir dire of a witness is to avoid unfair

prejudice or surprise. Sindel v. Toledo Edison Co., 87 Ohio App. 3d 525, 529 (8th

Dist. 1993). Nonetheless, the admissibility of expert testimony rests within the

discretion of the trial court. Id. This court has previously held that “the better

practice is to allow voir dire.” Pittock v. Kaiser Found. Health Plan, 1998 Ohio App.

LEXIS 2175, at 14-15 (8th Dist. May 14, 1998), citing Turner v. Turner, 67 Ohio

St.3d 337, 343 (1993). Because there was no substantial likelihood of surprise in

the testimony from Saari at issue in this case, the trial court did not abuse its

discretion in denying Mullinax’s counsel the opportunity to voir dire Saari. Id.

Anderson also argues that Saari’s expert report should not have been

considered because it was untimely. She specifically argues that the discovery

deadline was January 17, 2022 and Mullinax’s counsel did not serve Saari’s expert

report on her counsel until 5:01 p.m. on that date.

On December 23, 2021, the trial court issued an amended trial order

that stated “[u]nless otherwise ordered, all expert reports shall be served on

opposing counsel by January 17, 2022.” Mullinax served his expert report on

Anderson’s counsel on January 17, 2022 in accordance with that deadline.

Moreover, our review of the record reflects that Saari was included in Mullinax’s

witness list filed with the court on July 22, 2021. Based on the fact that the expert

report was provided in accordance with the trial court’s deadline and the identity

of the expert witness was provided months in advance, we cannot conclude that Anderson was unfairly surprised by Saari’s testimony such that the trial court

abused its discretion in admitting Saari’s expert report.

Finally, Anderson argues that the trial court should not have relied on

Saari’s expert report because it was improper expert testimony. Specifically, she

argues that Saari did not present any information that the trial court was unable to

determine and Saari’s methodology was flawed.

In determining whether an expert’s opinion satisfies the

requirements of Evid.R. 702(C), i.e., whether the opinion is reliable and, therefore,

admissible, we consider whether the principles and methods employed by the

expert to reach that opinion are reliable, and “whether the expert’s testimony

‘assist[s] the trier of fact in determining a fact issue or understanding the

evidence.’” Victor v. Kaplan, 2020-Ohio-3116, ¶ 57 (8th Dist.), quoting Miller v.

Bike Athletic Co., 1998-Ohio-178. “The ‘ultimate touchstone is helpfulness to the

trier of fact.’” Id., quoting Miller.

Our review of the record demonstrates that Saari testified as to his

qualifications as an expert witness. Saari holds a master’s degree in business

administration and is a certified public accountant. He is accredited in business

valuation by the American Institute of Certified Public Accountants and holds a

certified valuation analyst designation. Saari routinely handles business valuations

and financial reporting and analyses. With respect to Saari’s methodology, he

performed a detailed analysis of numerous financial accounts and directly traced

the assets in those accounts. We cannot conclude that the trial court abused its discretion in

relying on Saari’s expert testimony and report. Anderson’s first assignment of error

is overruled.

II. Separate Property Determination and Distributive Award

In her second assignment of error, Anderson argues that the trial

court erred and abused its discretion in dividing the marital property when it

awarded Mullinax separate property interests that were not properly traced and

failed to award her a distributive award. Anderson argues that because Saari’s

expert testimony was inadmissible, the trial court erred and abused its discretion

in relying on this testimony to justify an award of separate property to Mullinax.

Anderson also argues that the trial court erred and abused its discretion by failing

to award her a distributive award for Mullinax’s financial misconduct.

A. Separate Property Determination

We reiterate that the trial court did not err or abuse its discretion by

admitting, and subsequently relying on, Saari’s expert report and testimony. The

Ohio Supreme Court has long recognized that a trial court must have discretion to

do what is equitable upon the facts and circumstances of each divorce case.

Hertzfeld v. Hertzfeld, 2023-Ohio-4411, ¶ 16, citing Booth v. Booth, 44 Ohio St.3d

142, 144 (1989). Therefore, when reviewing a trial court’s determination in a

domestic-relations case, an appellate court generally applies an abuse of discretion

standard. Id., citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 130 (1989). An abuse

of discretion occurs when a court exercises its judgment in an unwarranted way regarding a matter over which it has discretionary authority. Johnson v. Abdullah,

2021-Ohio-3304, ¶ 35.

Here, Anderson failed to provide her own expert to challenge Saari’s

testimony concerning the tracing of the various financial accounts and/or to

discredit Saari’s method of tracing. A trier of fact “‘“may not disregard credible and

uncontradicted expert testimony[.]’”” Victor, 2020-Ohio-3116, at ¶ 65, quoting

Cromer v. Children’s Hosp. Med. Ctr. of Akron, 2016-Ohio-7461, ¶ 26 (9th Dist.),

quoting State v. White, 2008-Ohio-1623, ¶ 74.

When distributing property in a divorce proceeding, the trial court

must first determine what constitutes marital property and what constitutes

separate property. Smith v. Smith, 2022-Ohio-299, ¶ 75 (8th Dist.), citing Herrera

v. Phil Wha Chung, 2021-Ohio-1728, ¶ 27 (8th Dist.), citing Comella v. Comella,

2008-Ohio-6673, ¶ 38 (8th Dist.), citing R.C. 3105.171(B). Marital property

includes all real and personal property and interests in real and personal property

that is currently owned by either or both spouses and that was acquired by either

or both spouses during the marriage. R.C. 3105.171(A)(3). Separate property

includes property acquired prior to the date of marriage, or through inheritance or

gift, or acquired with nonmarital funds after separation. R.C. 3105.171(A)(6).

R.C. 3105.171 governs property distribution. R.C. 3105.171(C)(1)

mandates an equal division of marital property, or if an equal division is

inequitable, the court must divide the martial property equitably. Strauss v.

Strauss, 2011-Ohio-3831, ¶ 37 (8th Dist.), citing Neville v. Neville, 2003-Ohio- 3624. To determine what is equitable, a trial court must consider the factors set

forth in R.C. 3105.171(F). Id.

A trial court’s characterization of property as marital or separate

property is a mixed question of law and fact that will not be reversed unless it is

against the manifest weight of the evidence. Id., citing Saks v. Riga, 2014-Ohio-

4930, ¶ 35, citing Williams v. Williams, 2011-Ohio-939, ¶ 8. As such, this court will

not disturb the trial court’s distribution of separate property absent an abuse of

discretion. Id. If there is some competent, credible evidence in the record to

support the trial court’s decision, there is no abuse of discretion. Strauss v. Strauss,

2011-Ohio-3831, ¶ 35 (8th Dist.), citing Darsha Dilranjan Kapadia v. Kapadia,

2011-Ohio-2255, citing Wilburn v. Wilburn, 2006-Ohio-2553.

Anderson argues that the trial court abused its discretion by awarding

Mullinax his separate property claims. Specifically, she argues that the trial court

improperly awarded Mullinax his Vanguard retirement and brokerage accounts

and his T. Rowe Price accounts because he did not prove, by a preponderance of the

evidence, that the contents of these accounts could be traced to a separate property

source. We disagree.

A review of the record reflects that Mullinax presented competent,

credible evidence, in the form of his own testimony, expert testimony and financial

statements showing that the accounts in question were his separate property.

Mullinax presented evidence that the property in question was either inherited

and/or was an account established prior to the marriage. For these reasons, the trial court did not abuse its discretion in awarding Mullinax various accounts as

separate property.

B. Distributive Award

Anderson also claims that, because Mullinax violated the mutual

restraining orders by liquidating assets that were subject to a division of property,

his acts constituted financial misconduct for which the trial court should have

compensated her with a distributive award.

R.C. 3105.171(E)(4) provides that if a spouse has engaged in financial

misconduct, including but not limited to the dissipation, destruction, concealment,

or fraudulent disposition of assets, the court may compensate the offended spouse

with a distributive award or with a greater award of marital property. A.E. v. J.E.,

2024-Ohio-1785, ¶ 28 (8th Dist.). The complaining spouse bears the burden of

proving the financial misconduct. Id., citing Victor, 2020-Ohio-3116, at ¶ 138.

“As applied to the division of marital property, ‘financial misconduct

necessarily implicates wrongdoing such as one spouse’s [intentional] interference

with the other’s property rights or the offending spouse’s profiting from the

misconduct.’” Young v. Young, 2022-Ohio-2535, ¶ 6 (9th Dist.), quoting Tustin v.

Tustin, 2015-Ohio-3454, ¶ 44. Thus, financial misconduct requires something

more than just dishonest behavior; it also requires some element of wrongful

intent. Id., citing Bucalo v. Bucalo, 2005-Ohio-6319, ¶ 30 (9th Dist.), and Havrilla

v. Havrilla, 2014-Ohio-2747, ¶ 47 (9th Dist.). Anderson asserts that Mullinax committed financial misconduct

when he liquidated $20,000 from a Vanguard account to retain Saari’s services for

the underlying case and points to various withdrawals from other accounts.

According to Anderson, this was a violation of the mutual restraining order in place

in the case; moreover, she asserts that Mullinax failed to disclose these actions prior

to trial in order to avoid repercussions for the financial misconduct.

It is undisputed that Mullinax made several withdrawals from

restrained accounts. However, our review of the record reflects that Anderson

failed to meet her burden of showing that Mullinax did so with wrongful intent. As

Mullinax testified at trial, he believed that the accounts at issue were his separate

property. As discussed above, the trial court agreed and awarded him these

accounts and this court affirms that award. Anderson’s argument that she is

entitled to a distributive award for Mullinax’s purported financial misconduct is

premised on her assertion that Mullinax liquidated marital property. Because we

have affirmed the trial court’s distribution of property, including the award of these

accounts to Mullinax as his separate property, Anderson’s argument is

fundamentally flawed. Therefore, we cannot conclude that the trial court abused

its discretion in declining to find that Mullinax committed financial misconduct.

Likewise, in the absence of a finding of financial misconduct, Anderson was not

entitled to a distributive award. Anderson’s second assignment of error is

overruled. III. Child Tax Credit

In her third assignment of error, Anderson argues that the trial court

erred and abused its discretion by ordering the parties to alternate the child tax

credit. She argues that because she has custody of the minor children more than

Mullinax does, under the trial court’s divorce decree, she is entitled to the tax credit

every year.

A trial court’s decision awarding the tax dependency exemption to a

party is reviewed for an abuse of discretion. Brownlee v. Brownlee, 2012-Ohio-

1539, ¶ 34 (8th Dist.), citing Corple v. Corple, 123 Ohio App.3d 31 (7th Dist. 1997).

R.C. 3119.82 governs the designation of a parent entitled to claim the federal

income tax reduction as follows:

If the parties agree on which parent should claim the children as dependents, the court shall designate that parent as the parent who may claim the children. If the parties do not agree, the court, in its order, may permit the parent who is not the residential parent and legal custodian to claim the children as dependents for federal income tax purposes only if the court determines that this furthers the best interest of the children and, with respect to orders the court modifies, reviews, or reconsiders, the payments for child support are substantially current as ordered by the court for the year in which the children will be claimed as dependents. In cases in which the parents do not agree which parent may claim the children as dependents, the court shall consider, in making its determination, any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.

“‘[A] trial court is not required to state on the record its reasons for

awarding tax dependency exemptions.’” Shipman v. Shipman, 2015-Ohio-4419, ¶ 30 (3d Dist.), quoting Clark v. Clark, 2007-Ohio-5771, ¶ 35 (3d Dist.). The record

need only include financial data related to the aforementioned factors to support

the trial court’s decision. Id. at ¶ 31. Here, the record reflects that the trial court

considered these factors and provided a thorough explanation of its reasoning. The

journal entry stated, in relevant part:

“[W]hen the lower court considers the net tax benefit to each parent, it must look at the tax brackets of each parent. Evangelista v. Horton, 7th Dist. No. 08 MA 244, 2011-Ohio-1472, ¶ 74-75. While there are a variety of factors that determine a person’s tax liability other than the tax bracket, this factor is certainly determinative in awarding the dependency exemption. Id. at ¶ 74. This factor determines the net benefit of the exemption itself because it sets the value of the exemption to each party. The actual value of the dependent child exemption is the amount of the exemption in that tax year, multiplied by the rate of taxation paid by the party.” Id. at ¶ 51.

“The net value of the deduction itself, however, does not determine the total tax benefit under either [Singer v. Dickinson, 63 Ohio St.3d 408, 414, 588 N.E.2d 806 (1992)], or R.C. 3119.82, because while the net value of the ability to claim the exemption may be greater for the party who has the higher income (presuming that the individual with greater income pays tax at a higher rate), the party with the lower income may be eligible for other credits, deductions, or exemptions by virtue of the ability to claim a dependent child. This may result in a greater total tax savings due to that dependent child. For this reason, the lower court’s inquiry must include not only the tax brackets of both parents, but also evidence “concerning whether or not the parties have other exemptions or deductions or taxable income, whether each party could file joint income tax return, whether or not either party has income that impacts the relevant federal, state, and local income tax rates” and any tax credits available to the parties both with and without the ability to claim the child as a dependent. Boose v. Lodge, 3d Dist. No. 6-03-04, 2003- Ohio-4257, ¶ 9; see also Foster v. Foster, 6th Dist. No. S-03-037, 2004- Ohio-3905, ¶ 21.” Id.

[Anderson] was designated the residential and custodial parent of the children and [Mullinax] was awarded visitation according to this Court’s Standard Visitation Schedule. Therefore, [Anderson] spends more time with the children. [Anderson’s] annual income is $139,367, and a review of [Mullinax’s] 2019 and 2020 tax returns show that his income was $43,624 and $59,961, respectively.

Therefore, [Anderson] falls into a higher tax bracket than [Mullinax]. However, [Mullinax] claimed all three minor children as exemptions in 2019, and two of the minor children in 2020 as the oldest child was no longer a minor. There is no other evidence in the record regarding which party would derive a greater benefit from claiming the children for tax purposes, but [Mullinax’s] significantly lower income would more likely qualify him rather than [Anderson] for other credits, deductions, or exemptions.

Therefore, the Court finds that it is in the best interests of the minor children that both [Anderson] and [Mullinax] be entitled to claim the children for federal income taxes on alternating years.

The trial court clearly considered the custody arrangement, the

parties’ respective financial and tax situations and the best interests of the minor

children. Therefore, we cannot conclude that the trial court’s decision ordering the

parties to alternate the child tax exemption was an abuse of discretion. Anderson’s

third assignment of error is overruled.

IV. Temporary Support Obligations

In her fourth assignment of error, Anderson argues that the trial

court erred and abused its discretion by failing to retroactively modify Mullinax’s

temporary support obligations and that it was unreasonable for the trial court not

to retroactively award her temporary support because she incurred the majority of

the children’s expenses and had increased parenting time.

Civ.R. 75(N) allows a party to request a temporary support order

while the divorce or legal separation proceeding is pending. Civ.R. 75(N)(2) provides that a party may request an oral hearing to modify a temporary support

order. Civ.R. 75(N)(2) provides, in relevant part:

Upon request, in writing, after any temporary spousal support . . . is journalized, the court shall grant the party so requesting an oral hearing within twenty-eight days to modify the temporary order. A request for oral hearing shall not suspend or delay the commencement of spousal support or other support payments previously ordered or change the allocation of parental rights and responsibilities until the order is modified by journal entry after the oral hearing.

Our review of the record shows that the court denied Anderson’s

motion for a Civ.R. 75(N) hearing. Despite the trial court’s apparent failure to

strictly comply with Civ.R. 75, even if this court were to find that the trial court acted

improperly by failing to hold a Civ.R. 75(N) hearing within 28 days of Anderson’s

motion, this failure does not necessarily constitute a reversible error. Chattree v.

Chattree, 2014-Ohio-489, ¶ 64 (8th Dist.). It is incumbent upon Anderson to

demonstrate that she was prejudiced by the court’s failure to hold a hearing. Id.,

citing Thorp v. Thorp, 2011-Ohio-1015, ¶ 39 (11th Dist.). “‘When a party is able to

fully litigate the issues regarding temporary support orders during the final divorce

trial, the trial may constitute the Civ.R. 75(N)(2) hearing on temporary support

orders.’” Id., quoting Doody v. Doody, 2007-Ohio-2567, ¶ 44 (11th Dist.).

In the instant case, the parties entered into an agreement pursuant

to the October 2019 agreed judgment entry by which neither party would pay child

support to the other. On August 30, 2021, Anderson filed a motion to modify

temporary support. That motion was based on what she considered Mullinax’s

“voluntary” unemployment and underemployment during the divorce proceedings. The trial court denied Anderson’s motion. Following trial, during which both

parties testified as to their respective incomes and expenses, the magistrate’s

decision found that Mullinax was voluntarily underemployed, imputed him an

annual income of $175,000 and ordered him to pay child support in the amount of

$1,559.87 monthly. “Thus, ‘the divorce trial itself became a Civ.R. 75(N) hearing

on the amount of reasonable temporary support.’” Id., quoting Doody at ¶ 44.

Given these circumstances, the trial court did not abuse its discretion in failing to

hold a Civ.R. 75(N) hearing or in declining to retroactively modify support.

Anderson’s fourth assignment of error is overruled.

V. Time Limitations at Trial

In her fifth assignment of error, Anderson argues that the trial court

erred by imposing arbitrary time limitations upon her presentation of evidence and

testimony at trial.

Under Evid.R. 611(A), “[t]he court shall exercise reasonable control

over the mode and order of interrogating witnesses and presenting evidence so as

to (1) make the interrogation and presentation effective for the ascertainment of

truth, (2) avoid needless consumption of time, and (3) protect witnesses from

harassment or undue embarrassment.” M.F.S. v. B.T.S., 2024-Ohio-4680, ¶ 38

(8th Dist.). Cross-examination “shall be permitted on all relevant matters and

matters affecting credibility.” Evid.R. 611(B).

This court has recently addressed the same time limitation — one

hour for direct examination and 30 minutes for cross-examination — and held that the limitation does not constitute an abuse of discretion without a demonstration

of what evidence a party was prohibited from presenting because of the limitation

and how the party was prejudiced. M.F.S. v. B.T.S., 2024-Ohio-4680, ¶ 39, citing

Machen v. Miller, 2024-Ohio-1270, ¶ 58 (8th Dist.).

In support of her claim that the trial court’s time limits violated her

due process, Anderson asserts that she was prevented from effectively cross-

examining Mullinax concerning his dissipation and concealment of assets during

the divorce proceedings and she was prevented from effectively cross-examining

Saari. Anderson generally asserts that the limitation was prejudicial because

Evid.R. 611(B) provides that cross-examination shall be permitted on all relevant

matters and matters affecting credibility. In response, Mullinax argues that the

trial court erred in imposing arbitrary time limits and suggests that the court should

have instead imposed otherwise reasonable time limits.

Our review of the record reveals that both parties were afforded

approximately the same time in which to present evidence and both parties were

afforded the opportunity to conduct direct examination, cross-examination and re-

cross examination of witnesses. While the trial court likely could have imposed less

restrictive time limitations, it is not this court’s position to instruct a judge how to

conduct a trial. Moreover, neither party is able to adequately demonstrate how they

were prejudiced by the time limitations. Therefore, we cannot conclude that the

time limitations constituted an abuse of discretion. Anderson’s fifth assignment of

error is overruled. VI. Attorney Fees

In her sixth and final assignment of error, Anderson argues that the

trial court erred and abused its discretion by failing to award her attorney fees and

litigation expenses. She argues that the trial court should have awarded her

$170,711.75 in attorney fees and litigation expenses because ordering her to pay this

amount is unfair and inequitable in light of Mullinax’s behavior throughout the

divorce proceedings which caused her to incur substantial unnecessary fees. In

response, Mullinax asserts that Anderson was the reason for much of the delay in

the proceedings citing her continued refusal to participate in a psychological

evaluation and other refusals to cooperate, generally.

“[W]hen to determining whether to award attorney fees in divorce

cases, ‘the court must start with a presumption that attorney fees are the

responsibility of the party who retains the attorney.’” Victor v. Kaplan, 2020-Ohio-

3116, ¶ 127, quoting Walpole v. Walpole, 2013-Ohio-3529, ¶ 33 (8th Dist.). A court

may award reasonable attorney fees if it determines that the award is equitable. Id.,

citing Allan v. Allan, 2019-Ohio-2111, ¶ 100 (8th Dist.). In determining whether

attorney fees are equitable, the court may consider the factors set forth in R.C.

3105.73(A). These factors include the parties’ marital assets and income, any award

of temporary spousal support, the conduct of the parties and any other relevant

factors the court deems appropriate. An award of attorney fees is within the sound

discretion of the trial court and its award will not be overruled absent an attitude that is unreasonable, arbitrary or unconscionable. Id., citing Cyr v. Cyr, 2005-

Ohio-504, ¶ 70 (8th Dist.), citing Rand v. Rand, 18 Ohio St.3d 356 (1985).

In reviewing the magistrate’s decision, the trial court agreed that it

was reasonable and equitable that each party pay their own attorney fees and legal

expenses. Specifically, the trial court found that Anderson has an annual income of

$139,267, that Mullinax has access to substantial assets, that an award of spousal

support was not appropriate in the case and that both parties failed to strictly abide

by the court’s orders throughout the divorce proceedings. As such, the trial court

determined that Anderson failed to set forth sufficient evidence to overcome the

presumption that she be responsible for her own attorney fees.

We agree. Our review of the record reveals that both parties have

financial advantages and that both parties engaged in conduct that likely

unnecessarily prolonged and complicated the divorce proceedings. Anderson has

not pointed to anything in the record that would overcome the presumption that

she be responsible for her own attorney fees. Anderson’s sixth assignment of error

Mullinax’s Cross-Appeal

I. Custody Determination

In his first cross-assignment of error, Mullinax argues that the trial

court erred and abused its discretion in ordering that Anderson be awarded sole

custody of the parties’ minor children. Mullinax argues that in doing so, the trial

court has permitted Anderson “to use the children as pawns.” When reviewing a ruling pertaining to the allocation of parental

rights, the trial court is to be afforded great deference. Strauss v. Strauss, 2011-

Ohio-3831, ¶ 8 (8th Dist.), citing Miller v. Miller, 37 Ohio St.3d 71 (1988). Further,

the discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceedings and the impact the court’s determination will have on the lives of the parties concerned. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed record. In this regard, the reviewing court in such proceedings should be guided by the presumption that the trial court’s findings were indeed correct.

Id., citing Miller at ¶ 74. We therefore review a trial court’s allocation of parental

rights and responsibilities for an abuse of discretion.

Pursuant to R.C. 3109.04(B)(1), the trial court was required to

consider the best interest of the children when allocating parental rights and

responsibilities. A.A.O. v. A.M.O., 2022-Ohio-2767, ¶ 43 (8th Dist.), citing

O’Malley v. O’Malley, 2013-Ohio-5238, ¶ 68. In making a best interest

determination, the court must consider the factors enumerated in R.C.

3109.04(F)(1).

In arguing that the court abused its discretion in making Anderson

the residential parent and legal custodian of the minor children, Mullinax asserts

that the trial court failed to consider the R.C. 3109.04(F) statutory factors and failed

to consider Anderson’s conduct throughout the litigation including her refusal to

follow court orders and her improper influence over the children. This argument

is undermined by the record. Our review of the record, including the divorce decree demonstrates

that the trial court considered both the best interest of the minor children and the

factors set forth under R.C. 3109.04. Specifically, the trial court considered the

testimony of both parties, the GAL’s testimony and report and the relationship and

parenting arrangement both parties had with the minor children:

[Anderson] testified that she had been the children’s primary caregiver during the marriage and during the pendency of the divorce. She further testified that [Mullinax] inconsistently exercised his parenting time and the children did not want to live with their father. [Mullinax] testified that he had a good relationship with the children but acknowledged that there had been a change in the relationships during the pendency of the divorce.

The GAL testified at trial regarding the children’s relationship with their parents and to her report. In her report, the GAL noted that [the parties] have a high-conflict relationship and that neither party seems to encourage parenting time with the other parent. She further indicated that the children stressed their preference to live with [her.]

The GAL recommended shared parenting, but with several conditions. She recommended [the parties] work with a communication coach, that the parties and the children should engage with mental health professionals, including family therapy, that a Parenting Coordinator be put in place, and that the parents continue to utilize Our Family Wizard for communication.

Upon reviewing the testimony and evidence and the factors in R.C. 3109.04 and 3109.05 the Magistrate concluded that shared parenting was not in the best interests of the minor children and ordered that [Anderson] be designated as residential parent and legal custodian. [Mullinax] was granted visitation pursuant to the Court’s standard parenting schedule.

The Court has reviewed the transcripts and record and has considered the factors set forth in R.C. 3109.04 and 3109.05 and agrees with [the magistrate]. [The parties] have two minor children, ages 13 and 16 years old. The children have consistently been in [Anderson’s] care since birth and have a strong relationship with [Anderson.] At this time, the children do not have a close relationship with [Mullinax.] [The parties] have a high-conflict relationship, making the conditions the GAL recommended for a successful shared parenting plan untenable. Therefore, having considered the factors set forth in R.C. 3109.04 and 3109.05, and due to the high-conflict nature of the relationship between [the parties], shared parenting is not in the children’s best interests.

The trial court clearly considered all the relevant factors in making

its custody determination, including the high-conflict nature of the relationship

between the parties as it related to their shared parenting. Moreover, we note that,

as discussed in other sections of this opinion, both parties repeatedly failed to abide

by the terms of court orders throughout the proceedings. Further, because by the

time of trial neither parent had requested shared parenting, the trial court was not

empowered to reward shared parenting and was instead required to designate one

parent as the residential parent. R.C. 3109.04(A)(1); Preston v. Preston, 2010-

Ohio-3711, ¶ 11 (4th Dist.); Stephens v. Stephens, 2010-Ohio-4964, ¶ 16 (5th Dist.).

For these reasons, we cannot conclude that the court abused its discretion in

awarding Anderson legal custody of the minor children. Mullinax’s first cross-

assignment of error is overruled.

II. Contempt

In his second cross-assignment of error, Mullinax argues that the

trial court erred and abused its discretion in failing to find Anderson in contempt

of court for violating multiple court orders. He argues that the trial court should

have granted his numerous motions to show cause and find Anderson in contempt

for failing to submit to a psychological evaluation, failing to facilitate visitation, failing to maintain her equal share of the monthly minimum payment due on the

parties’ KeyBank overdraft protection account and Discover card and for her

unilateral termination of Mullinax’s dental coverage. Mullinax also argues that he

should have been awarded substantial attorney fees for these instances of

misconduct by Anderson.

“‘With respect to a trial court’s decision on a motion to show cause

why a party should not be held in contempt, an appellate court cannot reverse

unless the trial court abused its discretion.’” In re A.B.M., 2020-Ohio-3590, ¶ 46

(8th Dist.), quoting Baxter v. Thomas, 2015-Ohio-2148, ¶ 78 (8th Dist.), citing

State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10 (1981). Contempt of court is the

disobedience or disregard of a court order or a command of judicial authority.

Whitman v. Monastra, 2000 Ohio App. LEXIS 4637, * 8 (8th Dist. Oct. 5, 2000),

citing In re Parker, 105 Ohio App.3d 31 (4th Dist. 1995). Any sanction for civil

contempt must allow the contemnor an opportunity to purge the contempt. Id.,

citing Carroll v. Detty, 113 Ohio App. 3d 708 (4th Dist. 1996).

Mullinax’s first argument in support of this cross-assignment of

error is that Anderson should have been held in contempt for failing to undergo a

psychological evaluation despite being ordered to do so by the trial court. There is

no question that Anderson failed to comply with the court’s order to undergo a

psychological evaluation. However, the reason for ordering Anderson to undergo a

psychological evaluation was to aid the court in its custody determination. As the

trial court pointed out, trial in this matter has already been concluded and parental rights and responsibilities have been allocated. Therefore, even if Anderson were

found to be in contempt for failing to undergo a psychological evaluation, there

would be no reasonable purge condition to impose upon her. Moreover, “[a] trial

court abuses its discretion by ordering purge conditions which are unreasonable or

where compliance is impossible.” Whitman at *18, citing Burchett v. Miller, 123

Ohio App. 3d 550 (6th Dist. 1997). For these reasons, we cannot conclude that the

trial court abused its discretion in not finding Anderson in contempt for failing to

undergo a psychological evaluation.

Mullinax’s second argument in support of this cross-assignment of

error relates to Anderson’s alleged failure to facilitate visitation between him and

the children. Mullinax asserted that Anderson actively withheld parenting time

from him in violation of the relevant court orders in place during the divorce

proceedings. Anderson, in response, argues that she did not actively withhold

parenting time but that the teenage minor children chose to disregard her

instructions to spend time with Mullinax and repeatedly refused to visit him in

accordance with the parenting schedule.

We note that although the trial court granted Anderson’s motion for

an in camera interview of the minor children, the record fails to reflect that any

interviews took place. Therefore, our analysis of the children’s behavior and

motivations are limited to what can be gleaned from the parents’ testimony, the

GAL report, the GAL’s testimony and the remainder of the record. The record reflects that the minor teenage children had a

contentious relationship with Mullinax and that they frequently refused to engage

in visitation with him. The record is replete with examples of conflicts between

Mullinax and the children. Further, Anderson testified that she wanted the

children to have a relationship with Mullinax and had attempted to facilitate

visitation. On this record, we cannot conclude that the trial court abused its

discretion in declining to find Anderson in contempt for failing to facilitate

visitation.

Mullinax also supports this cross-assignment of error with the

argument that Anderson failed to maintain her share of monthly expenses. With

respect to the allegation that Anderson failed to maintain her share of monthly

expenses in violation of the October 2019 agreed judgment entry, we note that the

record contains numerous allegations from both parties that the other failed to

comply with these obligations. Both parties have included documentation

supporting their respective claims that the other party has failed to comply with the

terms of the temporary support order.

While Mullinax’s objections to the magistrate’s decision included

numerous arguments related to his motions to show cause, he did not make this

specific argument. Further, the magistrate’s decision denying those motions to

show cause was entered on January 10, 2023. Mullinax filed objections to the

magistrate’s decision on January 24, 2023. On July 10, 2023, the trial court entered a decision overruling his objections to the magistrate’s decision. On July 11, 2023,

the trial court adopted the magistrate’s decision.

Neither Anderson’s notice of appeal nor Mullinax’s notice of cross-

appeal in this case makes any reference to the July 10 or July 11, 2023 judgment

entries. Both notices of appeal refer strictly to the trial court’s September 27, 2023

and September 29, 2023 judgment entries. App.R. 3(D) requires that the notice of

appeal “shall designate the judgment, order or part thereof appealed from.” State

v. Henderson, 2014-Ohio-2061, ¶ 8. “A court of appeals lacks jurisdiction to review

a judgment or order that is not designated in the notice of appeal.” Id., citing Parks

v. Baltimore & O.R.R., 77 Ohio App.3d 426 (8th Dist. 1991). However, this court

“has routinely held that ‘interlocutory orders . . . are merged into the final judgment

. . . thus, an appeal from the final judgment includes all interlocutory orders merged

with it.’” Wagner v. Wagner, 2024-Ohio-728, ¶ 13 (8th Dist.), quoting Crenshaw

v. Cleveland Police Dept., 2022-Ohio-3915, ¶ 2, fn. 1. Thus, this court has

jurisdiction over all orders issued prior to and including the September 29, 2023

order.

In overruling Mullinax’s objections related to his argument that

Anderson failed to comply with the temporary support order and pay her share of

overdraft protection, the trial court found that Mullinax failed to provide clear and

convincing evidence that Anderson had not made monthly payments pursuant to

the agreed judgment entry. Our review of the record reflects that this was not an

abuse of discretion. Mullinax supports this cross-assignment of error with the argument

that Anderson unilaterally terminated his dental coverage in violation of court

orders. Anderson testified that her employer coverage changed during the

pendency of the case and that Mullinax merely needed to contact the provider to

obtain a new insurance card. While the issue of whether Anderson unilaterally

terminated Mullinax from her health insurance coverage arose at trial, the issue of

dental coverage was not specifically explored. Because Mullinax, as the party

moving to show cause for why Anderson should not be held in contempt, had the

burden to establish, by clear and convincing evidence, that Anderson unilaterally

terminated his dental coverage, we cannot say on this record that he met that

burden.

For these reasons, the trial court did not abuse its discretion by

declining to hold Anderson in contempt of court. Mullinax’s second cross-

III. Marital Debts and Liabilities

In his third cross-assignment of error, Mullinax argues that the trial

court erred and abused its discretion in its allocation of marital debts and liabilities.

Mullinax argues that it is not fair, just or equitable for the parties to equally share

the marital debts and liabilities as ordered by the trial court. In support of this

position, Mullinax again points to the fact that Anderson repeatedly ignored court

orders and he asserts that she unilaterally incurred tens of thousands of dollars in

debt during the divorce proceedings for which he should not share responsibility. To the extent to which Mullinax’s arguments in support of this

cross-assignment of error relate to the assertion that Anderson failed to comply

with the October 2019 agreed judgment entry, we note that this has been addressed,

at length, throughout this opinion.

Our review of the record reflects little testimony or evidence as to

which debts were paid, how much was paid by either party or which party incurred

specific debts. To the extent that there was testimony as to some of Anderson’s

debt, the record reflects that she incurred debt during the pendency of the divorce

proceedings because her expenses outweighed her income and Mullinax often

failed to pay his portion of shared expenses. In the absence of additional evidence

in the record, we cannot say that the trial court’s order for the parties to equally

share the marital debts and liabilities amounts to an abuse of discretion. Mullinax’s

third cross-assignment of error is overruled.

IV. Income Determinations

In his fourth and final cross-assignment of error, Mullinax argues

that the trial court erred and abused its discretion in its determinations of the

parties’ incomes. He argues that Anderson’s income in the divorce decree is

understated because her income increased during the pendency of the case.

Additionally, Mullinax argues that the trial court improperly imputed income to

him in the amount of $175,000.

The trial court is required to determine the parents’ annual income

for the purposes of calculating child support. Hertzfeld v. Hertzfeld, 2023-Ohio- 4411, ¶ 53 (8th Dist.), citing Sweeney v. Sweeney, 2019-Ohio-1750, ¶ 24 (1st Dist.).

R.C. 3119.01 defines “income” as either (1) the gross income of a parent employed

to full capacity, or (2) the sum of the gross income of the parent and any potential

income of an unemployed or underemployed parent. Id., citing R.C.

3119.01(C)(10)(a)-(b). Pursuant to R.C. 3119.01(C)(10)(b) and 3119.01(C)(18), “‘the

trial court is permitted to impute potential income to a parent who is voluntarily

unemployed or voluntarily underemployed for the purpose of determining the

parent’s child support obligation.’” Id., quoting Yenni v. Yenni, 2022-Ohio-2867,

¶ 26 (8th Dist.). To determine the potential income of a party who is voluntarily

unemployed or underemployed, the court must consider several factors, including

the parent’s prior employment experience; the parent’s education; the parent’s

physical and mental disabilities if any; the availability of employment in the

parent’s geographic area the prevailing wage and salary in the parent’s geographic

area and the parent’s special skills and training.

The record reflects that the trial court considered these factors. The

trial court noted that Mullinax holds an MBA from Harvard University and

significantly outearned Anderson for the duration of the marriage, historically

earning over $175,000 annually. Our review of the record supports the trial court’s

finding that Mullinax was voluntarily underemployed and the imputed income of

$175,000. These findings do not amount to an abuse of discretion.

With respect to Anderson’s income, Mullinax points out that

Anderson testified at trial that her annual salary was approximately $150,000. Despite this, the trial court used Anderson’s 2020 and 2021 W-2 forms, which

indicated that her annual income was $137,465.40 and $139,267.88, respectively.

Using Anderson’s W-2’s to determine her income for support purposes does not

amount to an abuse of discretion. For these reasons, Mullinax’s fourth cross-

Judgment affirmed.

It is ordered that appellee and appellant share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, domestic relations division, to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and MARY J. BOYLE, J., CONCUR