August v. August

2014 Ohio 3986

• Court: Ohio Court of Appeals
• Decided: September 15, 2014
• Docket: 5-13-26
• Status: Published

Opinion

[Cite as August v. August, 2014-Ohio-3986.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

KEHLY N. AUGUST,

PLAINTIFF-APPELLANT, CASE NO. 5-13-26

v.

JOSHUA D. AUGUST, OPINION

DEFENDANT-APPELLEE.

Appeal from Hancock County Common Pleas Court Domestic Relations Division Trial Court No. 2011 DR 411

Judgment Affirmed

Date of Decision: September 15, 2014

APPEARANCES:

Bruce B. Stevens for Appellant

Garth W. Brown for Appellee Case No. 5-13-26

WILLAMOWSKI, P.J.

{¶1} Plaintiff-appellant Kehly N. August (“Kehly”) brings this appeal from

the judgment of the Common Pleas Court in Hancock County, Ohio, Domestic

Relations Division, granting a divorce from Defendant-appellee, Joshua D. August

(“Joshua”), allocating parental rights and responsibilities over their minor child,

ordering Kehly to pay child support, and finalizing the parties’ property division.

On appeal, Kehly contends that the trial court committed multiple errors and

demands reversal of the trial court’s judgment. For the reasons that follow, we

affirm.

Facts and Procedural History

{¶2} Joshua and Kehly were married on April 13, 2003. They have one

minor child, B.A., who was born during the parties’ marriage and was less than

two years old when the parties separated in August 2011. Joshua and Kehly lived

in their marital home in Arlington, Ohio, until their separation. Joshua’s mother

provided day care for B.A. while Joshua and Kehly were at work. Joshua’s

parents have been very involved in B.A.’s life. B.A. is also close with many

members of Joshua’s large extended family, many of whom live in the area and

meet regularly for family activities. Kehly does not have an active relationship

with her father and the father’s wife. B.A. knows Kehly’s mother.

{¶3} Upon separation, Kehly initially moved in with her birth mother in

Upper Sandusky, Ohio, but a few months later, she moved into the home of her -2- Case No. 5-13-26

boyfriend Chad Bellachino (“Chad”) in Perrysburg, Ohio. Kehly and Chad

became engaged and moved to Northwood, Ohio, which is about an hour away

from where Joshua lives. Joshua remained in the marital home after the

separation, maintained the house and pursued its sale, which materialized in

February 2012. At the time of the trial, he lived in a semi-private section of his

uncle’s home near Mt. Corey, Ohio. Joshua’s mother continued to provide day

care for B.A.

{¶4} Kehly is a high school graduate. She attended some college classes

but did not obtain a degree. She worked at Hobby Lobby for eight years. During

the parties’ marriage, Kehly continued to work, although Joshua suggested that

she stay at home. In December 2011, a few months after separating from Joshua,

Kehly quit her job as a co-manager at Hobby Lobby, where she earned $45,230.00

in 2011. She stated that she had quit her job to have more time with her son.

Kehly was unemployed at the time of the trial and testified that her boyfriend

Chad would support them financially. She did, however, start an Internet business

of selling flowers, from which she had earned $1,000.00 in the first eight months

of 2012.

{¶5} Joshua is a college graduate and has a current teaching certificate. He

worked full time as a teacher and a soccer coach for two years, earning $32,500.00

a year. After the expiration of his contract, Joshua did not work from May 2011

until August 2011. At the time of the trial, Joshua was working multiple part-time -3- Case No. 5-13-26

jobs, but in September 2012 he began a full-time position at Fastenal, earning

$24,000.00 a year in base salary, and additional money in monthly commissions,

which in September 2012 amounted to $98.00. Although at the time of the trial

Joshua was paying for private health insurance for B.A., he was supposed to

become eligible for insurance through Fastenal.

{¶6} After the parties’ separation, they attempted to share in the parenting

of B.A. by exchanging the child between them. There have been problems

occurring at the exchanges, however, and at some point, Joshua started recording

the exchanges of the child with Kehly. Joshua’s parents hired a private

investigator.

{¶7} One day in September 2011, Kehly told Joshua that she was unable to

care for B.A. Joshua took B.A. to his parents’ home and went out of town.

During that time, Kehly went to the marital home, where the locks had been

changed, broke a door to enter the house, and took some items. She then went to

pick up B.A. from Joshua’s parents and refused to return the child to Joshua

afterwards.

{¶8} On September 26, 2011, Kehly filed a complaint for divorce and

requested the court to designate her as the residential parent of B.A. during the

pendency of the divorce proceedings. (R. at 1, 9.) Joshua filed an answer and

requested the trial court to issue temporary orders naming him the residential

parent during the pendency of the proceedings. (R. at 23-24.) On November 10, -4- Case No. 5-13-26

2011, the trial court determined that it needed more time to consider the temporary

parenting issue and scheduled it for a hearing on December 21, 2011. (R. at 26.)

The parties were ordered to operate under an alternating biweekly schedule of

equal parenting time until further determination. (Id.) The record does not reflect

what transpired in the following three months with respect to the hearing on the

temporary parenting.

{¶9} During an exchange after Thanksgiving 2011, Chad was very

aggressive toward Joshua. Afterwards, Joshua began using a video recorder

during exchanges and brought multiple witnesses with him to the exchanges. In

January 2012, after a disagreement over the time for picking up B.A., Chad kicked

in the door of Joshua’s house and tried to take B.A. from Joshua. After that,

Joshua filed a Civil Stalking Protection Order against Chad.

{¶10} On February 21, 2012, Kehly again moved the trial court to name her

the temporary residential parent of B.A. (R. at 36.) Joshua responded with a

similar request on March 6, 2012. (R. at 41.) Additionally, Joshua requested that

the trial court appoint a guardian ad litem for B.A. (R. at 42.) On March 23,

2012, the trial court appointed attorney Philip Johnson as the guardian ad litem for

B.A. (R. at 46.)

{¶11} On April 25, 2012, Kehly brought B.A. to Joshua after completing

her parenting time. She did not mention any incidents to have occurred that day.

After the exchange, Joshua noticed that B.A. was not very responsive and had -5- Case No. 5-13-26

bruises and scratches on his body. Joshua took the child to urgent care for

examination, from which B.A. was transferred to the emergency room of the

Blanchard Valley Hospital. The Children’s Protective Services Unit (“CPSU”)

was notified about B.A.’s condition and began an investigation into possible child

abuse. Kehly later explained that B.A. had played at a park that day and had been

hit by another child on the curly slide. Joshua refused to send B.A. to the next

scheduled visitation with Kehly. A few days later, Kehly attempted to “snatch”

B.A. from Joshua’s parents’ house. After the child was directed by the

grandparents into the house, Kehly kicked at the doors and yelled profanities.

{¶12} On May 7, 2012, Joshua moved for an ex parte emergency order

terminating Kehly’s companionship times with B.A., alleging that they were no

longer in the child’s best interest. (R. at 55.) The motion, and an attached

affidavit, described B.A.’s negative reactions to visits with Kehly, his refusal to

attend the visits, and the recent incidents, which raised Joshua’s concerns over

B.A.’s safety when in Kehly’s care. (Id.; R. at 56.) On May 9, 2012, the trial

court suspended the companionship schedule between Kehly and B.A., and

established supervised visitations, while naming Joshua the temporary residential

parent. (R. at 59.)

{¶13} The parties later reached a temporary agreement, which stated that

Kehly should have companionship with B.A., which was to be supervised by

either Joe or Debi Ballachino. (See R. at 69.) Upon the recommendation of the -6- Case No. 5-13-26

guardian ad litem, the trial court approved the temporary companionship schedule

pursuant to the agreement. (Id.) It appears that Kehly did not adhere to the trial

court’s order, however, because after picking up B.A. at the exchange point with

Mrs. Bellachino, she dropped Mrs. Bellachino off at home and took B.A. to

Kehly’s house and for a walk, unsupervised. She told the guardian ad litem that

she had been at Mrs. Bellachino’s home at the time.

{¶14} On June 22, 2012, Kehly filed a motion to show cause and request

for contempt, alleging that Joshua failed to follow the court-approved

companionship agreement. (R. at 79.) After the report from CPSU was concluded

without finding that child abuse had occurred, Kehly requested that the prior

alternating parenting schedule be revived or a shared parenting plan be

established. (R. at 80.) Kehly filed a proposed shared parenting plan with the trial

court. (R. at 83.)

{¶15} The parties again entered into an agreement, which was approved by

the trial court, allowing Kehly to have unsupervised parenting time with B.A. (R.

at 87.) The agreement required an adult supervisor, other than Chad, to be present

at all pickup and drop-off times to supervise the exchanges. (Id.) Kehly’s next

motion to increase parenting time was denied. (R. at 108.)

{¶16} On August 20 and August 24, 2012, the divorce hearings took place

in front of the magistrate of the trial court. After these two hearings, the trial court

increased parenting time between Kehly and B.A., and set out the parenting time -7- Case No. 5-13-26

pursuant to Appendix J, Parenting Plan and Companionship Schedule of the

Domestic Relations Rules of the Hancock County Common Pleas Court. (R. at

113.) Two weeks later, Kehly again filed a motion to show cause and for

contempt, alleging that Joshua had not followed the court-ordered parenting

schedule by failing to bring the child to the drop-off location. (R. at 114.)

Another divorce hearing took place on October 15, 2012. Among other relevant

testimony at the hearings was the guardian ad litem’s recommendation that shared

parenting was not in the best interest of the minor child and that Joshua should be

the residential parent of B.A. (Tr. at 222:18-22; 223:1-225:14.)

{¶17} On January 2, 2013, the magistrate issued its decision,

recommending that Joshua be the residential parent and legal custodian of B.A.,

while Kehly should have parenting time according to Appendix J of the Domestic

Relations Rules of the Hancock County Common Pleas Court and additional

parenting time until B.A. starts school, if she is available. (R. at 124, at 11-13.)

The magistrate further recommended that Kehly should pay Joshua child support

for B.A., which should be $341.89 per month if the health insurance coverage is

provided, or $309.22 per month plus additional $72.42 for cash medical support if

the private health insurance is not provided. (Id. at 23.) With respect to the

parties’ assets, the magistrate recommended that Kehly should retain the $3,000

debt owed to the parties by Kehly’s mother, while Joshua should retain a checking

account established in his name at the First National Bank of Pandora, with -8- Case No. 5-13-26

$4,234.80 in it. (Id. at 24-25.) The remaining recommendations by the magistrate

are not at issue in this appeal. The magistrate dismissed Kehly’s motions for

contempt. Kehly filed objections to the magistrate’s decision. (R. at 140.)

{¶18} On March 20, 2013, Joshua filed a motion to show cause against

Kehly and a motion for emergency order ex parte, asserting that Kehly had “failed

and refused to return the child” to him after the last scheduled visitation on March

15, 2013. (R. at 130, 132.) An emergency order ex parte was issued on March 23,

2013, ordering Kehly to “immediately return” B.A. to Joshua and forbidding her

from removing B.A. from the jurisdiction of the trial court. (R. at 138.) On April

16, 2013, Kehly moved for an order requiring Joshua to appear and show cause

why he should not be held in contempt for his failure to allow her parenting time

on the weekend of March 29 through 31, 2013. (R. at 141.) Both parties were

found to be in contempt. (R. at 157, 158.)

{¶19} On July 29, 2013, the trial court overruled Kehly’s objections to the

magistrate’s decision and adopted the magistrate’s recommendations. (R. at 159.)

On August 22, 2013, the trial court issued a decree of divorce, terminating the

parties’ marriage, dividing the parties’ marital property, and ordering that Joshua

be named B.A.’s residential parent and that Kehly pay child support to Joshua. (R.

at 164.) Kehly now appeals alleging the following as her assignments of error:

-9- Case No. 5-13-26

ASSIGNMENT OF ERROR 1

The Trial Court erred in naming the Defendant the residential parent and legal custodian of the parties’ minor child.

ASSIGNMENT OF ERROR 2

The Trial Court erred in not finding that shared parenting was in the best interest of the parties’ minor child.

ASSIGNMENT OF ERROR 3

The Trial Court erred in calculating child support in this matter.

ASSIGNMENT OF ERROR 4

The Trial Court erred in failing to divide marital assets in an equitable manner.

1. Standard of Review

{¶20} Our review of the trial court’s decision in a domestic relations case

concerning child custody, award of child support, and division of marital property

is under the abuse of discretion standard. Booth v. Booth, 44 Ohio St.3d 142, 144,

541 N.E.2d 1028 (1989); see also Neville v. Neville, 99 Ohio St.3d 275, 2003-

Ohio-3624, 791 N.E.2d 434, ¶ 5; King v. King, 3d Dist. Union No. 14-11-23,

2012-Ohio-1586, ¶ 9; Schwarck v. Schwarck, 3d Dist. Auglaize No. 2-11-24,

2012-Ohio-3902, ¶ 26. This standard requires that the trial court’s reasoning not

be disturbed unless it was “unreasonable, arbitrary or unconscionable,” because

the trial judge is best equipped to determine and weigh the credibility of the

proffered testimony. Davis v. Flickinger, 77 Ohio St. 3d 415, 416, 418, 674 - 10 - Case No. 5-13-26

N.E.2d 1159 (1997); Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d

1140 (1983). We apply this standard of review to Kehly’s four assignments of

error.

2. First and Second Assignments of Error— Allocation of Parental Rights

{¶21} Although Kehly labels her first assignment of error as a challenge to

the finding that Joshua should be the primary residential parent and legal custodian

of B.A., she does not support this challenge with specific arguments. Her

discussion under both the first and second assignments of error concerns the trial

court’s finding that shared parenting was not in B.A.’s best interest. Accordingly,

we address the two assignments of error together as a challenge to the trial court’s

allocation of parental rights and responsibilities over the parties’ minor child,

which includes its decision that shared parenting was not in B.A.’s best interest.

{¶22} Revised Code 3109.04 governs the trial court’s award of parental

rights and responsibilities. King, 2012-Ohio-1586, at ¶ 8. The statute requires that

in allocating the parental rights and responsibilities, the court “shall take into

account that which would be in the best interest of the children.” R.C.

3109.04(B)(1); Self v. Turner, 3d Dist. Mercer No. 10-06-07, 2006-Ohio-6197, ¶

6. It further provides for options available to the trial court when allocating

parental rights and responsibilities: “primarily to one of the parents” (R.C.

3109.04(A)(1)), or “to both parents” (R.C. 3109.04(A)(2)). See Fisher v.

- 11 - Case No. 5-13-26

Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶¶ 23-24; see

also R.C. 3109.04(A), (D), (F), (G). Under R.C. 3109.04(D)(1)(a)(iii), where, as

here, “only one parent makes a request” for shared parenting and the trial court

determines that shared parenting is not in the best interest of the child, the trial

court may deny a party’s motion requesting shared parenting and proceed as if the

request for shared parenting had not been made.

{¶23} Further subsections of that statute spell out ten factors that the court

shall consider to determine the best interest of the child, and five more factors to

determine whether shared parenting is in the child’s best interest. R.C.

3109.04(F)(1) and (2). Any additional relevant factors shall be considered as well.

Id.

In determining the best interest of a child pursuant to this section, whether on an original decree allocating parental rights and responsibilities for the care of children or a modification of a decree allocating those rights and responsibilities, the court shall consider all relevant factors, including, but not limited to:

(a) The wishes of the child’s parents regarding the child’s care;

(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court;

(c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;

- 12 - Case No. 5-13-26

(d) The child’s adjustment to the child’s home, school, and community;

(e) The mental and physical health of all persons involved in the situation;

(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;

(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;

(h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of an adjudication; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code or a sexually oriented offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any offense involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;

(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court;

- 13 - Case No. 5-13-26

(j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.

R.C. 3109.04(F)(1).

In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors enumerated in division (F)(1) of this section, the factors enumerated in section 3119.23 of the Revised Code, and all of the following factors:

(a) The ability of the parents to cooperate and make decisions jointly, with respect to the children;

(b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;

(c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;

(d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;

(e) The recommendation of the guardian ad litem of the child, if the child has a guardian ad litem.

R.C. 3109.04(F)(2).

{¶24} The magistrate and the trial court carefully reviewed all relevant

factors and concluded that shared parenting was not in B.A.’s best interest.

Among factors influencing the trial court’s decision the relevant ones were: R.C.

3109.04(F)(1)(a), Kehly requested shared parenting or to be named the residential

parent, but Joshua did not want shared parenting and wanted restrictions on

Kehly’s parenting time; R.C. 3109.04(F)(1)(c), B.A. had a strong and continuing

relationship with his paternal grandparents and with father’s extended family but - 14 - Case No. 5-13-26

he had no relationship with his maternal grandfather although he “knew” his

maternal grandmother; R.C. 3109.04(F)(1)(f) and (i), both parties failed to follow

court-ordered visitation schedules and both would be reluctant to facilitate the

other’s parenting time, but Kehly was “more likely to aggressively impose her

interpretation of parenting time at the expense of [Joshua’s] parenting time.” (R.

at 124, at 10-11.) The trial court then noted that “the parties have shown no ability

to cooperate and make decisions jointly” (R.C. 3109.04(F)(2)(a)); “they have no[t]

demonstrated any ability to encourage the sharing of love, affection, and contact

between the child and the other parent” (R.C. 3109.04(F)(2)(b)); “there is a history

of the child having significant unexplained bruising after Plaintiff’s parenting

time” and “there are two instances where Plaintiff or her fiancé has tried to secure

possession of the child by force” (R.C. 3109.04(F)(2)(c)); Plaintiff moved to the

Toledo area, about an hour from Defendant’s home” (R.C. 3109.04(F)(2)(d)); and

“the guardian ad litem does not recommend shared parenting” (R.C.

3109.04(F)(2)(e)). (R. at 159, at 5, citing R. at 124.) The trial court further noted

that Joshua did not believe that shared parenting was in the best interest of B.A.

(Id. at 4.) It determined that due to the “considerable tension and hostility between

the parties,” the parties were unlikely to be willing or able to engage in the

“indispensable communication” on the essential matters regarding B.A.’s care.

(Id. at 5.)

- 15 - Case No. 5-13-26

{¶25} After finding that shared parenting was not in B.A.’s best interest,

the trial court took into consideration the factors discussed above in deciding that

Joshua should be named the child’s residential parent and legal custodian. The

trial court noted “that [Joshua’s] home seems to provide a more stable and

nurturing environment, due in part to the child’s well-fostered relationship with

[Joshua’s] immediate and extended family.” (Id. at 7.)

{¶26} Challenging the trial court’s decision, Kehly asserts that shared

parenting should have been granted because “the parties had operated under a

shared parenting plan for the majority of time while the case was pending pursuant

to a Temporary Order.” (App’t Br. at 6.) Although no shared parenting order

appears in the record, Kehly alleges that a “shared parenting time arrangement

lasted from September 2011 until April 25, 2012.” (Id. at 11.) She claims that the

parties were able to communicate and make decisions that were in the best interest

of B.A. during that time. (Id.)

{¶27} Nevertheless, the record shows that throughout the pendency of the

entire proceedings, Kehly and Joshua’s communication with respect to B.A. was

contentious. From the beginning of the proceedings in September 2011, when

each party requested to be named the residential parent, continuing through

February and March 2012, when each party renewed its request, and up until the

conclusion of the case when each party was found in contempt, the parties

repeatedly proved their inability to communicate effectively and resolve the issues - 16 - Case No. 5-13-26

that arose while they attempted to share in the parenting of B.A. Their failure to

communicate about an incident causing scratches and bruises on B.A.’s body,

resulted in the ex parte emergency order limiting Kehly’s visitations with B.A.

Further evidence of unsuccessful communication with respect to B.A. are the

incidents involving Kehly or Chad’s attempts to forcibly remove B.A. from

Joshua’s custody. We do not find support for Kehly’s assertion that the parties

were able to communicate and make decisions in the best interest of B.A.

Likewise, contrary to Kehly’s statements in her brief that both parties testified that

“they would be able to communicate in regards to the issue regarding their son”

(App’t Br. at 13), the trial transcript shows that while they understood the need for

better communication regarding their child, they did not both know how they

could achieve it. (See, e.g., Tr. at 73-76; cf. Tr. at 336:7-24.)

{¶28} Kehly further claims that the trial court’s decision is in error because

Joshua was the one at fault for any failures of communication and that Joshua’s

actions of videotaping the exchanges or bringing witnesses to the exchanges

affected B.A. in a negative way. (App’t Br. at 12-13.) There is no evidence in the

record that the presence of third parties at the exchanges or the recording of the

exchanges had any effect on B.A., let alone a negative effect. Guardian ad litem

opined that the videos had no effect on B.A. and that B.A. likely did not even

know that he was being videotaped. (Tr. at 220:9-13.) As to the fault for failure

- 17 - Case No. 5-13-26

of communication, the trial court determined that both parties were unwilling to

cooperate and that finding is supported by the record.

{¶29} Kehly next contends that the trial court erred in not ordering shared

parenting because Joshua “had no objections to a shared parenting plan except as

it related to a 50-50 time split.” (App’t Br. at 12, 15, citing Tr. at 86.) She refers

to Joshua’s affirmative response to a question by Kehly’s counsel “So so far the

only thing I’ve heard you object to in my shared parenting plan is Kehly would

want her son half the time, right?” (Tr. at 86.) Nevertheless, regardless of

whether Joshua had one or more objections to the shared parenting plan proposed

by Kehly, the record shows that he continued to object to the idea that the parties

share in the care and custody of B.A. The full review of the trial transcript reveals

that Joshua had concerns over Kehly keeping B.A. overnight, and he wanted to

limit Kehly’s time with B.A. (Tr. at 77:13-78:9; 83:10-21.) Joshua’s filings in the

trial court show that he continuously requested to be named the residential parent

rather than to share in the parenting with Kehly. Therefore, Kehly’s suggestion

that shared parenting should have been granted because Joshua did not have more

objections to the proposed shared parenting plan has no merit. In view of the trial

court’s finding that shared parenting was not in the best interest of B.A., the

number of Joshua’s objections to the proposed plan is irrelevant.

{¶30} Kehly next disputes the trial court’s finding that Joshua’s home

provided more stability for B.A. She claims that because she has resided in the - 18 - Case No. 5-13-26

same home since November 2011, while Joshua has changed residences, the trial

court’s finding of stability was improper. Nevertheless, the challenged finding

was not based solely on the place of residence of the parties. This finding, as

further explained by the magistrate, was based on the following facts:

After separation, Defendant maintained a home, found a new home when the marital home was sold, remained in the area, found and maintained employment, sought and found a better job with better pay, maintained a relationship with his family and fostered the child’s relationship with extended family. Plaintiff left the home, moved to the Toledo area, moved in with a new boyfriend, left her long time employment, has dabbled in internet sales, and has chosen not to seek employment. Her boyfriend actively inserted himself into the parties’ relationship and has demonstrated a propensity toward aggression and violence. The evidence relating to the child’s bruises is not quite sufficient to support a finding that the child is being physically abused. However the frequency and number of bruises raises concerns; particularly concerns of how well the child is being supervised in Plaintiff’s home.

Plaintiff stated that she quit her job to spend more time parenting her child. Her statement begs the question of why it was now in the child’s best interest for her to be a stay at home mom when during the marriage and the child’s infancy it was not in the child’s best interest. Given all of the circumstances in this case, Plaintiff quitting her job is more of an indication of the instability in Plaintiff’s life than an indication of intent to be a better parent. Her availability to parent does not outweigh the benefits of primarily residing with Defendant.

(R. at 124, at 12.) Based on the above, the trial court’s finding that Joshua’s home

provided more stability for B.A. was supported by the record and was not an abuse

of discretion.

- 19 - Case No. 5-13-26

{¶31} Kehly’s final contention under these assignments of error concerns

the magistrate’s comment regarding her credibility. The magistrate’s decision

contains a two-paragraph section, which cites certain statements made by Kehly at

the hearing and concludes with the following:

Any of these statements could be accurate, and each may have a kernel of truth. However, taken together and considered in light of Plaintiff’s demeanor at hearing, they establish that Plaintiff was attempting to create a false appearance. Her dissembling raises concerns about the credibility of her statements at hearing.

(R. at 124, at 9.)

{¶32} We first note that neither the magistrate nor the trial court used Kehly’s

credibility as one of the factors when determining the best interest of the child or

when allocating parental rights and responsibilities. The challenged comments

regarding Kehly’s credibility appear in the section of the magistrate’s decision

entitled “Findings and Factual Background.” (See id.) It does not appear that the

findings in the part of the decision regarding allocation of parental rights and

responsibilities contain any disputed facts. Therefore, it does not appear that Kehly’s

credibility affected the trial court’s analysis of the factors considered for the best

interest of the child. Accordingly, even if the finding regarding Kehly’s credibility

were erroneous, it would not warrant a reversal of the trial court’s allocation of

parental rights and responsibilities.

{¶33} We further acknowledge that “the trial court may rely upon the

magistrate’s credibility determinations when it reviews the magistrate’s decision.” - 20 - Case No. 5-13-26

Mackenbach v. Mackenbach, 3d Dist. Hardin No. 6-11-03, 2012-Ohio-311, ¶ 9,

citing Gilleo v. Gilleo, 3d Dist. Mercer No. 10-10-07, 2010-Ohio-5191, ¶ 47. It is

well-established that the credibility determinations made by the factfinder, who

“can hear and see as well as observe the body language, evaluate voice inflections,

observe hand gestures, perceive the interplay between the witness and the

examiner, and watch the witness’s reaction to exhibits and the like,” are given due

deference by the reviewing court. Perkins v. Channing, 3d Dist. Seneca No. 13-

03-36, 2003-Ohio-4874, ¶ 4; accord State v. Dailey, 3d Dist. Crawford, No. 3-07-

23, 2008-Ohio-274, ¶ 7, quoting State v. Thompson, 127 Ohio App.3d 511, 529,

713 N.E.2d 456 (8th Dist.1998). Therefore, we will defer to the findings of the

trier of fact because “[d]etermining credibility from a sterile transcript is a

Herculean endeavor,” and we will not reverse the magistrate’s determination that

Kehly’s credibility at the hearing raised concerns because, based on our review of

the record, this finding does not appear unreasonable, arbitrary, or unconscionable.

Perkins, 2003-Ohio-4874, at ¶ 4; Thompson, 127 Ohio App.3d at 529.

{¶34} Our review of the record supports the trial court’s findings and the

analysis of factors mandated by R.C. 3109.04(F)(1) and (2), as well as the trial

court’s analysis of the additional factors. As the trial court pointed out, even if

there was no evidence to support the suspected child abuse, it is troubling that the

child was getting physically harmed while under Kehly’s supervision. It is even

more troubling that Kehly chose to not inform Joshua about the injuries, which - 21 - Case No. 5-13-26

shows both failure of communication and failure to properly address the child’s

needs. The evidence of aggressive behavior at the exchanges by both Kehly and

her boyfriend is another factor weighing against placing the child in Kehly’s care.

All of the factors, together with the guardian ad litem’s recommendation, support

the conclusion that shared parenting should not have been granted and that Joshua

should be named residential parent and legal custodian of B.A.

{¶35} Therefore, we hold that the trial court did not err in finding that

shared parenting was not in the best interest of B.A., denying Kehly’s motion for

shared parenting, and naming Joshua the residential parent and legal custodian of

B.A. The first and second assignments of error are overruled.

3. Third Assignment of Error—Amount of Child Support

{¶36} In this assignment of error, Kehly challenges the trial court’s

calculation of the amount of child support she was ordered to pay. As stated

above, we review this challenge under the abuse of discretion standard.

{¶37} When computing child support, the trial court must evaluate the

income of each of the parents. Drummer v. Drummer, 3d Dist. Putnam No. 12-11-

10, 2012-Ohio-3064, ¶ 24. While reviewing the parties’ income, the trial court

may determine that a party is voluntarily unemployed or underemployed. Id. If

the trial court makes such a finding, the trial court must consider the party’s

potential income, “which is income the parent would have earned if he or she had

been fully employed.” Id., citing R.C. 3119.01(C)(5)(b), and (11)(a). In imputing - 22 - Case No. 5-13-26

the potential income the trial court must review multiple factors, as mandated by

R.C. 3119.01(C)(11)(a):

(i) The parent’s prior employment experience;

(ii) The parent’s education;

(iii) The parent’s physical and mental disabilities, if any;

(iv) The availability of employment in the geographic area in which the parent resides;

(v) The prevailing wage and salary levels in the geographic area in which the parent resides;

(vi) The parent’s special skills and training;

(vii) Whether there is evidence that the parent has the ability to earn the imputed income;

(viii) The age and special needs of the child for whom child support is being calculated under this section;

(ix) The parent’s increased earning capacity because of experience;

(x) The parent’s decreased earning capacity because of a felony conviction;

(xi) Any other relevant factor.

R.C. 3119.01(C)(11)(a).

{¶38} The trial court found that Kehly was voluntarily underemployed,

working in her Internet flower sales business, where she had made $1,000.00 in

the first eight months of 2012, after voluntarily quitting her full-time job as a co-

manager at a Hobby Lobby store. In imputing the potential income to Kehly, the

- 23 - Case No. 5-13-26

trial court considered Kehly’s prior employment where she earned $45,230 (factor

(i) above); although it noted that the parties conceded Kehly’s inability to find

employment at a similar rate (factor vii). (R. at 159, at 10.) Even though Kehly

did not have a college degree, her employment history, experience, as well as

“skills and training in retail management” gave her an ability to earn substantial

income (factors (ii), (vi), and (ix)). (R. at 159, at 10.) Kehly did not offer any

evidence of any physical or mental disabilities or felony convictions (factors (iii)

and (x)). There was no discussion of any special needs of B.A. (factor viii). There

were no allegations that employment was unavailable in the geographic area

where Kehly resided (factor iv). Likewise, no evidence was presented regarding

prevailing wages and salary levels in the area (factor v). The trial court did not

specifically discuss the factors for which no evidence was presented nor dispute

raised. The trial court did review, as an additional factor, the minimum wage

possible of $16,016.00, and concluded that Kehly’s earning potential exceeds the

minimum wage. (R. at 159, at 8.) The trial court adopted the magistrate’s

recommendation that Kehly’s potential income is $30,623.00, which was “[t]he

midpoint within [the] range” of the minimum wage and the amount “she earned

with eight years of seniority with her prior employer.” (R. at 124, at 14; R. at 159,

at 8.)

{¶39} Kehly’s major contention on appeal is that the trial court imputed too

much potential income to her because it failed to consider the “availability of - 24 - Case No. 5-13-26

employment in the area where [she] resided [factor (iv)], with the prevailing wage

and salary levels wherein [sic] that geographic area [factor (v),] and whether [she]

would have the ability to get a job in the same industry or practice that she had

prior [possibly factor (xi)].” (App’t Br. at 18-19.) We review the trial court’s

determination of the amount of income to be imputed to Kehly under an abuse-of-

discretion standard. O’Connor v. O’Connor, 184 Ohio App.3d 538, 2009-Ohio-

5436, 921 N.E.2d 700, ¶ 8 (3d Dist.), citing Rock v. Cabral, 67 Ohio St.3d 108,

616 N.E.2d 218 (1993), syllabus.

{¶40} We have previously stated that the trial court is “required to consider

the statutory factors listed above when imputing income under R.C. 3119.01” in

order to “closely approximate a parent’s potential earning capacity when the

parent is voluntarily unemployed.” O’Connor, 2009-Ohio-5436, at ¶ 17, citing

Long v. Long, 162 Ohio App.3d 422, 2005-Ohio-4052, 833 N.E.2d 809, ¶ 15-16

(3d Dist.). In O’Connor, we reversed the trial court’s finding imputing minimum

income to a parent, where the only evidence offered to the trial court supported

“imputing * * * an income at or around the level of her earnings of $50,000 per

year prior to leaving her job in November 2008.” Id. at ¶ 19. We held,

In the absence of any explanation in the record for imputing Denise’s income at the minimum-wage level of $14,248 rather than imputing her income consistently with the statutory factors listed in R.C. 3119.01—and consistently with the only evidence in the record showing an income of over $50,000—we have no choice but to find the trial court’s approval of CSEA’s order imputing an income of $14,248 to Denise to be an abuse of discretion. - 25 - Case No. 5-13-26

Id. at ¶ 20. Our reversal in O’Connor stemmed from complete lack of support for

the trial court’s finding of imputed minimum income and the presence of evidence

in support of a much higher income. See id. at ¶¶ 19-20.

{¶41} Similarly, in Henderson v. Henderson, 3d Dist. Mercer No. 10-03-

20, 2004-Ohio-1856, we reversed the trial court’s decision, where imputing

income to a parent was based only on the parent’s “maximum possible salary” at

his position. Id. at ¶ 7. In that case, “[t]here was no evidence nor consideration

given regarding the job opportunities or salary levels” within the field in the

county, no evidence regarding the parent’s education level, the prevailing wage

and salary levels, the parent’s special skills and training, or his ability to earn the

imputed income. Id. As such, there was no evidence to support the trial court’s

decision to impute income to the parent. See also Wallace v. Wallace, 195 Ohio

App.3d 314, 2011-Ohio-4487, 959 N.E.2d 1075 (9th Dist.), where the Ninth

District Court of Appeals reversed the trial court’s order imputing an income “at a

level nearly twice minimum wage” to a father, where “the record was devoid of

any evidence as to Father’s education level, licensures, or specialized training,

such that the trial court could appropriately impute” such income to him. Id. at ¶

15. The record in Wallace, contradicted the trial court’s findings regarding the

father’s employment status and compensation history, resulting in the trial court’s

findings being contrary to the evidence. Id. at ¶¶ 14-18.

- 26 - Case No. 5-13-26

{¶42} The present case is significantly different from O’Connor,

Henderson, and Wallace, because while no evidence was presented as to

availability of employment and the prevailing wages in the area where Kehly

resided, no evidence weighing against the trial court’s findings was offered either.

Furthermore, unlike in O’Connor, Henderson, and Wallace, there is sufficient

support for the income imputed by the trial court to Kehly, which is about

$14,600.00 less than what she had earned prior to voluntarily leaving her job. In

the current case, the trial court did not impute an income without considering the

majority of the relevant statutory factors. See Henderson, 2004-Ohio-1856, at ¶ 7.

It considered evidence of Kehly’s education, employment and salary history,

skills, training, experience, as well as evidence of her inability to find employment

at a similar rate. The factors discussed by the trial court support the finding of

potential income at $30,623.00. Therefore, we will not reverse the trial court’s

decision imputing income to Kehly, which is well-supported by the evidence,

merely because the trial court failed to explicitly address two of the statutory

factors as to which the parties presented no dispute.

{¶43} Our reasoning here is consistent with the sister districts’ treatment of

similar situations. The Tenth District Court of Appeals declined to find an abuse

of discretion were “no testimony or evidence was presented on the issues of

employment availability or the prevailing wage and salary levels in [the parent’s]

geographic area” and the trial court failed to consider these elements when - 27 - Case No. 5-13-26

calculating the potential income. Chapman v. Chapman, 10th Dist. Franklin No.

05AP-1238, 2007-Ohio-1414, ¶ 11. That court noted that “R.C. 3119.01(C)(11)(a)

does not provide that evidence must be presented as to each factor in order for the

trial court to impute income.” Id. at ¶ 12. Therefore, “the fact that no one testified

regarding the prevailing wages and the opportunities in the * * * industry in

plaintiff’s community did not preclude the trial court from imputing income” in

the amount that was “clearly supported” by the evidence. Id. at ¶ 18. See also In

re J.M.G., 8th Dist. Cuyahoga No. 98990, 2013-Ohio-2693, ¶ 26, quoting Strimbu

v. Strimbu, 11th Dist. Trumbull No. 2010-T-0104, 2011-Ohio-3629, ¶ 17 (“[T]he

trial court has no obligation to investigate and develop evidence that the parties

have failed to present.”); Wilburn v. Wilburn, 169 Ohio App.3d 415, 2006-Ohio-

5820, 863 N.E.2d 204, ¶ 38 (9th Dist.) (“It is not the trial court’s duty to

investigate or develop evidence not presented by the parties. Instead, the trial

court may presume that any factor not substantiated by evidence is immaterial to

its determination of imputing income.”); Keller v. Keller, 9th Dist. Wayne No.

04CA0084, 2005-Ohio-3302, ¶ 17 (“The trial court has no obligation to

investigate and develop evidence that the parties have failed to present. Where the

parties failed to present evidence in regard to each of the factors of R.C.

3119.01(C)(11), it was reasonable for the trial court to consider such factors

immaterial to a determination of the issues.”).

- 28 - Case No. 5-13-26

{¶44} As to Kehly’s suggestion that the trial court should have considered

“whether [she] would have the ability to get a job in the same industry or practice

that she had prior” (App’t Br. at 19), we note that the ability to get a job in the

same industry or practice is not one of the specifically enumerated factors that the

trial court must consider under R.C. 3119.01(C)(11)(a). While the trial court

could have considered it as a possible element under R.C. 3119.01(C)(11)(a)(xi),

which requires the trial court to evaluate “[a]ny other relevant factor,” its failure to

do so is not a reversible error. The trial court’s decision to impute income to

Kehly was supported by sufficient evidence and the trial court did not impute to

her the same income as she previously earned. Therefore, there is no relation

between her alleged error and the finding that Kehly’s imputed income is less than

what she previously earned. In so far as the suggested factor would fall under

R.C. 3119.01(C)(11)(a)(vii), “whether there is evidence that the parent has the

ability to earn the imputed income,” we note that the trial court did consider this

factor, as already discussed above.

{¶45} Kehly next argues that the trial court erred in finding that Joshua “is

not voluntarily underemployed.” (App’t Br. at 19.) The trial court’s

determination whether “a parent is voluntarily (i.e., intentionally) unemployed or

voluntarily underemployed is a question of fact for the trial court” and will not be

disturbed on appeal absent an abuse of that discretion. Rock v. Cabral, 67 Ohio

St.3d 108, 112, 616 N.E.2d 218 (1993). We do not find that the trial court abused - 29 - Case No. 5-13-26

its discretion in not finding Joshua voluntarily underemployed, with his income of

$25,176.00 annually, which combined his base salary and the commissions. The

evidence in the case showed that Joshua continued to search for a teaching

position after his prior teaching contract had expired and that he had worked

multiple part-time jobs until an opportunity of a full-time position opened. (See,

e.g., Tr. at 94-96.) There is no support in the record for an allegation of voluntary

underemployment on the part of Joshua. Accordingly, the trial court did not err in

finding that Joshua was not voluntarily underemployed.

{¶46} For all of the above reasons, we find that the trial court did not abuse

its discretion in imputing $30,623.00 of potential income to Kehly. Accordingly,

we defer to the trial court’s findings and affirm the calculation of child support in

this case. The third assignment of error is overruled.

4. Fourth Assignment of Error—Division of Marital Assets

{¶47} In her final assignment of error, Kehly challenges the trial court’s

decision with respect to the parties’ assets. In a divorce action, the trial court has

broad discretion in the allocation of marital assets. Neville v. Neville, 99 Ohio

St.3d 275, 2003-Ohio-3624, 791 N.E.2d 434, ¶ 5; Schwarck v. Schwarck, 3d Dist.

Auglaize No. 2-11-24, 2012-Ohio-3902, ¶ 26. When dividing marital property, “a

trial court must generally assign and consider the values of marital assets in order

to equitably divide those assets.” Schwarck, 2012-Ohio-3902, at ¶ 26.

- 30 - Case No. 5-13-26

In any divorce action, the starting point for a trial court’s analysis is an equal division of marital assets. However, R.C. 3105.171(C) clearly provides that where an equal division would be inequitable, a trial court may not divide the marital property equally but instead must divide it in the manner that the court determines to be equitable.

Neville, 2003-Ohio-3624, at ¶ 5, citing R.C. 3105.171(C), and Cherry v. Cherry,

66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981); accord Schwarck, 2012-Ohio-

3902, at ¶ 26. Because the standard of review for an appellate court is an abuse of

discretion, we will not reverse the trial court’s distribution of marital assets unless

“its decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound.” Schwarck, 2012-Ohio-3902, at ¶ 16; see also Neville, 2003-

Ohio-3624, at ¶ 5.

{¶48} Among the items deemed Joshua and Kehly’s marital property

subject to division by the trial court were: a bank account at First National Bank of

Pandora with a balance of $4,234.80; a Hobby Lobby retirement account with the

value of $16,101.02; a State Teachers Retirement System (STRS) account with a

“cash out” value of $9,985.88; a 2007 Chevy Impala, worth $4,931.00, subject to

secured debt of $4,983.00; a 2005 Buick LaCrosse, worth $4,518.00, subject to

secured debt of $2,092.00; a 1979 Kawasaki motorcycle, worth $50.00; a 1969

Oldsmobile, worth $500.00; and a loan to Kehly’s mother, Crystal Davis, of

$3,000.00. (R. at 124, at 6-8.)

- 31 - Case No. 5-13-26

{¶49} The trial court divided the assets “in a nearly equal” manner,

awarding Kehly the 2007 Chevy Impala (negative net value ($52.00)), the Hobby

Lobby retirement account, and the loan to Crystal Davis, for a total net assets of

$19,049.02. Joshua was awarded the remaining assets, totaling in $17,196.68.1

(R. at 159, at 14-15.) Kehly claims that trial court’s division of assets was not

equitable because “it will be very difficult for [Kehly] to actually be able to recoup

any of the loan amount that was made to her birth mother” and because her 2007

Chevy Impala “had been repossessed and had no value.” (App’t Br. at 20.) She

contends that the bank account with a balance of $4,234.80 should have been

divided equally between the parties to achieve equitable division of the property.

{¶50} First, we reject Kehly’s contention that she was harmed by being

awarded the 2007 Chevy Impala that had no value. The trial court accounted for

the negative value of the vehicle when dividing the property and subtracted the

$52.00 negative value of the vehicle from the value of the assets awarded to

Kehly. Kehly was never credited with $4,931.00 that was the value of the vehicle.

Accordingly, the fact that the vehicle “had been repossessed and had no value”

does not negatively affect the net value of the assets that she was awarded by the

trial court.

1 There appears to be a typographical error on the magistrate’s calculate on page, where the balance of the First National Bank of Pandora was listed as $4,254.80 instead of $4,234.80, resulting in a final number for the net value of assets awarded to Joshua being twenty dollars higher than it should be. (See last page of R. at 124.) Because no party was ordered to pay cash to the other to equalize the asset division, this miscalculation has no effect on the division of the property, as it only illustrates the value of the assets actually awarded to Joshua. The correction of the number does not affect the distribution of assets.

- 32 - Case No. 5-13-26

{¶51} We also reject Kehly’s claim that that she was harmed by the award

of the value of $3,000.00 debt owed by her birth mother. In her brief, Kehly

claims that “neither party expected to be paid back” on the loan (App’t Br. at 19,

citing Tr. at 119-120), but our review of the trial transcript contradicts this

statement. (See Tr. at 309:22-311:10.) When Kehly was questioned by her

counsel regarding the loan made to her mother, the following exchange occurred:

Q: And do you expect to receive any of that money?

A: Yes.

Q: Okay. From your mother.

A: From my mom, yes.

(Tr. at 311:4-10.) We do not find an abuse of discretion in the trial court’s

division of the property awarding Kehly the net value of a loan owed to the parties

by her birth mother, which resulted in “a nearly equal” division of the assets.

Similarly, we do not find an abuse of discretion in awarding Joshua the balance of

the bank account at First National Bank of Pandora.

{¶52} Kehly’s claims in the fourth assignment of error are contrary to the

evidence and have no merit. As such, they do not warrant a reversal of the trial

court’s decision dividing the parties’ property. The fourth assignment of error is

overruled.

- 33 - Case No. 5-13-26

Conclusion

{¶53} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Common Pleas Court in Hancock County, Ohio,

Domestic Relations Division is therefore affirmed.

PRESTON, J., concurs.

/jlr

ROGERS, J. Concurring separately.

{¶53} I fully concur with the result reached by the majority. I write

separately only to comment on the procedural issue of approval of the final decree

of divorce. To restate my concern:

I find it curious * * * that the magistrate’s signature appears on the final judgment entry, above that of the trial court judge. It is the decision of the judge that is to be embodied in a judgment entry, and not the recommendations or opinions of the magistrate. If the magistrate’s approval is intended as a ministerial act to confirm that the entry contains all that it should, then the magistrate’s signature, [along with counsel’s signature] below that of the judge, would be sufficient to provide such confirmation. However, if the magistrate’s prior approval of stated findings is required before the trial judge will sign an entry, I would personally, and professionally, find the procedure to be offensive.

***

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It is no wonder then that attorneys and parties feel the magistrate is making the decisions, the trial judge is rubber stamping those decisions, and that language to the effect that the judge has made an independent review of the transcript and evidence is nothing but regurgitation of the magic words from Civ.R. 53.

(Emphasis sic.) Vian v. Vian, 3d Dist. Mercer No. 10-13-05, 2013-Ohio-4560, ¶

54, 57 (Rogers, J. concurring).

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