Clemens v. Clemens

2021 Ohio 3094

• Court: Ohio Court of Appeals
• Decided: September 7, 2021
• Docket: 21 AP 0001
• Status: Published

Opinion

[Cite as Clemens v. Clemens, 2021-Ohio-3094.]

COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: ADAM B. CLEMENS : Hon. Craig R. Baldwin, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. William B. Hoffman, J. : -vs- : : Case No. 21 AP 0001 CHRISTINA CLEMENS : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Morgan County Court of Common Pleas, Domestic Relations Division, Case No. 19DR0133

JUDGMENT: Affirmed in part; Reversed and Remanded In part

DATE OF JUDGMENT ENTRY: September 7, 2021

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

KELLY COADY MILES D. FRIES 10 W. Broad St., Ste. 1550 320 Main Street Columbus, OH 43215 P.O. Box 190 Zanesville, OH 43702-0190 Morgan County, Case No. 21 AP 0001 2

Gwin, J.,

{¶1} Appellant appeals the December 30, 2020 judgment entry of the Morgan

County Court of Common Pleas, Domestic Relations Division.

Facts & Procedural History

{¶2} Appellant Adam B. Clemens (“Husband”) and appellee Christina Clemens

(“Wife”) were married on December 13, 2014.

{¶3} On July 24, 2019, Husband filed a complaint for divorce against Wife. Wife

filed a counterclaim for divorce on August 15, 2019. In September of 2019, the trial court

appointed Sonya Marshall as Guardian Ad Litem (“GAL”) for the parties’ minor children,

G.C. and C.C. In its temporary orders, the trial court designated Wife as the temporary

residential parent and legal custodian of both minor children.

{¶4} The GAL filed a detailed report on April 30, 2020. The GAL noted that

Husband screened positive for marijuana on March 4, 2020, and Wife tested negative on

March 3, 2020. The GAL found a shared parenting plan was not in the best interest of

the children due to the lack of communication between Husband and Wife, the lack of

ability to compromise between the parties, and other actions by the parties during the

pendency of the proceedings. While Husband suggested to the GAL that Wife is actively

alienating the children from him, the GAL found no evidence to support those allegations.

The GAL made the following recommendations as to the best interest of the children:

Wife should be designated the residential parent and legal guardian of the children and

Husband should have parenting time.

{¶5} Wife filed a motion for contempt against Husband on March 16, 2020,

arguing Husband violated the terms of the court’s order by exercising parenting time Morgan County, Case No. 21 AP 0001 3

beyond that allowed by the court. Wife filed another motion for contempt against Husband

on May 20, 2020, alleging Husband withdrew half of the balance in the parties’ joint

savings account and alleging he was consuming alcohol while exercising parenting time.

{¶6} Husband filed a motion for contempt against Wife on September 30, 2020,

arguing the following: Wife failed to allow holiday parenting time for Veteran’s Day in

2019; Wife disposed of a dog in violation of the court’s temporary orders; Wife disposed

of a tractor in violation of the court’s temporary orders; Wife failed to allow reasonable

telephone contact between Husband and the children; Wife failed to allow parenting time

on Martin Luther King, Jr. weekend in 2019; Wife failed to provide Husband with the

telephone numbers of the children’s babysitters; and Wife made negative statements

about Husband in front of the children.

{¶7} The trial court conducted a trial on October 15th and October 16th of 2020.

{¶8} Blake Kimes (“Kimes”) is a licensed chemical dependency counselor.

Kimes conducted a drug and alcohol assessment on Husband in July of 2020. Kimes

found that Husband did not meet the criteria for a substance abuse disorder and Kimes

did not recommend any further treatment for Husband. On cross-examination, Kimes

testified her assessment was based exclusively on what Husband told her, with the

exception of a urine drug screen. The drug test did not screen for alcohol.

{¶9} Adam Schriver (“Schriver”) is a friend of Husband’s. Schriver testified that

while Husband used to have issues with alcohol, he has changed for the better and is

now committed to being a father. Schriver stated he has not seen Husband with his

children for approximately two years, and has not spent time with Husband recently. Morgan County, Case No. 21 AP 0001 4

{¶10} Mary Clemens, Husband’s sister, saw Husband and Wife with the children

prior to their separation. She did not see Husband drink when with them and thought his

parental interaction was appropriate. She has observed the children with Husband since

the separation for an hour or two at a time, and does not have any concerns with his or

Wife’s parenting. Mary sometimes sees Husband drink three or four drinks per weekend.

While Mary thinks Husband previously had a problem with drinking, he has changed and

that is no longer an issue.

{¶11} Iris Rowe (“Rowe”), Husband’s mother, testified she used to be the primary

babysitter for the children. Husband lives with her at her home. Rowe no longer babysits

for the children during Wife’s parenting time. Rowe testified Husband backed off drinking

in August of 2019 and now doesn’t drink around the children. Rowe confirmed that she

testified on August 28, 2019 at the temporary orders hearing that Husband drinks three

or four nights a week, five or six beers, and that he drinks one or two nights when he has

the kids.

{¶12} Candice Casto (“Casto”) is Wife’s sister. When the parties were together,

she witnessed Wife having more interaction with the children than Husband. She testified

Husband did not see G.C. for the first three years of her life. When asked if Husband

knew about the birth of G.C., Casto testified she had reason to believe Husband knew

G.C. was his daughter because Rowe, Husband’s mother, attended G.C.’s first birthday

party.

{¶13} Husband and Wife each testified extensively about child custody issues and

martial or separate property issues. Morgan County, Case No. 21 AP 0001 5

{¶14} Wife purchased a home in 2011. Wife testified Husband moved into her

home in 2013. He lived in Wife’s home prior to their marriage, and Husband stated Wife

sometimes used portions of his check to pay the mortgage during that time. However,

Wife testified that when Husband lived with her prior to the marriage, he did not make any

mortgage payments. He would sometimes give her money, but he never paid any of the

bills. Wife sold the pre-marital home in 2017. Wife testified she used the funds from the

sale of the pre-marital home to buy a John Deere Tractor, to buy a bedroom suite, and to

pay for a part of the down-payment for the marital home.

{¶15} The parties sold the marital home during the pendency of the divorce

proceedings. Both agree the amount of the proceeds from the sale is $10,727.11. Wife

testified those funds are her separate property because the funds that went into the down-

payment for the marital home came from the sale of her pre-marital home and from her

pre-marital savings account. Husband specifically testified that Wife could have the

proceeds from the sale of the marital home. He stated the $15,000 down-payment used

to purchase the marital home came from the sale of Wife’s pre-marital home.

{¶16} While Husband testified he purchased the 2007 Ford F-150 truck he drives

prior to the marriage, Wife testified it was purchased during the marriage, and she is

actually listed as the owner of the truck because it was financed through her employee

credit union, and the payments came directly out of her paycheck. Wife testified to the

Kelley Blue Book Value of both the Ford F-150 and the GMC Terrain she drives: $14,273

for the Terrain and $8,700 for the F-150. Wife still owes money on the Terrain, and there

is approximately $2,027.26 in equity in the vehicle. Husband testified to a Kelley Blue Morgan County, Case No. 21 AP 0001 6

Book value of $4,868 for the F-150; however, he believes that number is high because

the truck is in “rough” condition. Husband also testified the Terrain’s value is $12,642.

{¶17} Husband does not know where the John Deere Tractor, purchased for

$7,935.43 is, but if Wife still has it, he wants it. If not, he would like half of the proceeds

from the sale. Wife noted that Exhibit 13 is a list of tangible personal property the parties

each agreed to keep. The John Deere tractor is on the list. Wife has the tractor. Wife

testified it is her separate property because she wrote a check for it out of the proceeds

from the sale of her pre-marital home.

{¶18} Husband admitted he withdrew funds from the parties’ joint bank account

during the pendency of the case. He testified it was his half of the parties’ tax refund and

his half of the parties’ stimulus funds, which was approximately $6,000. He stated he did

not know the restraining order prohibited him from withdrawing money from the joint

account, but stated Wife also violated the order because she took funds out of the

account. Wife stated the date of Husband’s last withdrawal from the joint account was

August 4, 2020. On August 4, 2020, Wife withdrew the balance of the funds ($6,202.21)

from the joint account upon the advice of her attorney, and placed it into her counsel’s

IOLTA account, where it remained at the time of the trial.

{¶19} Wife testified that, during the pendency of the divorce case, she paid

expenses for Husband, including insurance on his truck, monthly cell phones charges,

and air conditioning repair for the marital home, totaling $2,427.54.

{¶20} Husband has a National Electrical Annuity Retirement Plan through his

employment which ended in 2009, prior to his marriage to Wife. His current pension

benefit through MEBA is $1,082. Wife agrees the amount in Husband’s National Electric Morgan County, Case No. 21 AP 0001 7

annuity plan are his separate property. However, a part of his current pension was earned

during the marriage, so she believes a portion of it is marital property. Wife testified she

has an OPERS account she started contributing to in June of 2019. Wife has a 401(K)

from Genesis Healthcare. She testified the 401(K) represents funds from 2009 to 2014,

which were separate property acquired prior to the marriage. Wife rolled this 401(K) into

an Ohio Deferred Compensation Account, so this Deferred Compensation account

contains the pre-marital Genesis funds, plus contributions made during the marriage.

Husband believes he is entitled to half of Wife’s Genesis 401(K), and half of the marital

portion of Wife’s Deferred Compensation account.

{¶21} Wife has a State Farm Universal Life Insurance Policy. Wife started it when

she was 23 years old. Wife testified this is her separate property because she bought

and paid for the policy many years prior to the marriage. Wife stated she did make

monthly payments on the policy during the marriage.

{¶22} Wife testified she and Husband were in an on-and-off again relationship

prior to their marriage when G.C. was conceived. Wife told Husband when she found out

she was pregnant. Husband’s sister Mary was with Wife when she took the pregnancy

test. Rowe came to the hospital to visit G.C. when she was born. Until G.C. was three-

and-a-half years old, Husband did not have any involvement with G.C. and made no

contribution to G.C.’s support. For the next few years, Husband had sporadic involvement

with G.C., until he moved into Wife’s home in 2013. Husband testified he did not know

he was the father of G.C. until two years after she was born.

{¶23} Wife testified that, during the marriage, she was the primary caretaker of

the children. Wife stated Husband’s drinking was constantly an issue during their five- Morgan County, Case No. 21 AP 0001 8

year marriage. Husband would drink appropriately, but then would go back to drinking

heavily, and this cycle continued throughout the marriage. Wife testified Husband would

drink around the children during the marriage.

{¶24} Husband stated he has two or three beers per week, but doesn’t overdo it.

Prior to the separation, both parties had a beer or two in front of the children and it was

not an issue. Husband testified both he and Wife smoked marijuana together. Husband

last used marijuana in early spring of 2020, uses it approximately once per month, but

never does it in front of the children. Husband agrees that in August of 2019, he was

overdoing it with alcohol because it was a month after the separation.

{¶25} Husband testified that, prior to the separation, the children would be with

him or Rowe when Wife was working. After the separation, Husband was very concerned

because C.G. could have as many as six different babysitters each week. Husband was

available to watch C.G. during these times and wanted to watch her, but Wife said no.

{¶26} Wife stated the children had so many babysitters during that time because

Husband would constantly text and bother the babysitters. Twice, Husband took C.G.

from a daycare in Zanesville when it was not his parenting time. Husband testified he

had concerns about the facility. Husband found out it took a protective order from the

court to prevent him from taking C.G. from the facility, not just a court order setting out

his parenting time. Once he was aware of this, Husband “exercised his parental right,”

went and picked up C.G., and told Wife she could pick C.G. up after work. Wife stopped

asking Rowe to babysit her children after the parties separated because Rowe yelled at

her in front of the children, telling Wife she should not divorce Husband. Morgan County, Case No. 21 AP 0001 9

{¶27} Wife moved to Tuscarawas County in July of 2020 to be closer to her

extended family. Wife wanted to move there when she and Husband were married, but

he refused. G.C. was in favor of moving, and is very happy in her new home. Wife now

works for the Mideast Ohio Regional Council. C.G. now attends daycare while Wife is at

work.

{¶28} Husband testified Wife did not tell him what school the children would attend

after the move and has not provided him with a list of daycare provides for C.G. as

required by the temporary order. Husband is not happy with Wife’s move and intends to

stay in Morgan County. Husband wants the children back and believes they should return

to Morgan County, where they can attend the schools they attended prior to the move.

Husband said Wife always lived in Morgan County even if she worked elsewhere, and

there is no reason why she cannot do that now. If he is awarded custody of the children,

Rowe would watch them overnight, or Husband would switch his work hours.

{¶29} G.C. (twelve years old) has reported to Wife that, during recent visits with

Husband, he drinks while the children are around. Husband believes G.C. is lying. Wife

stated Husband’s phone calls with G.C. are sometimes difficult because Husband tells

G.C. she will not be living in Tuscarawas County much longer, but G.C. likes and wants

to live in Tuscarawas County.

{¶30} Husband testified Wife has not been flexible in letting him watch the

children when she is at work, and has not been flexible with parenting time. Husband

introduced text messages from Wife denying him additional parenting time. Wife testified

she did not allow Husband extra visitation because he asked repeatedly, and because

G.C. did not want to go. Wife stated there is frequent conflict between Husband and G.C. Morgan County, Case No. 21 AP 0001 10

{¶31} Husband is concerned about the children’s medical issues, such as G.C.’s

flat feet and C.G.’s reaction to medication not being noted in her medical records. Wife

testified she has addressed the medical issues Husband is concerned about with the

pediatrician, and the pediatrician recommended no further treatment. G.C. runs cross-

county and does not complain to Wife about her feet. As to C.G.’s allergy to penicillin,

Wife called the pediatrician at the time the issue arose, who told her to stop the

medication. Wife reminded the pediatrician about the allergy at the next appointment,

and she again called the pediatrician to make sure it was noted on her chart after Husband

voiced his concern.

{¶32} Husband testified about the motion for contempt he filed against Wife. On

Veteran’s Day, he requested parenting time to take the children to a parade. Wife said

she was off that day and would not let him have the children. Husband also stated she

denied him his parenting time on Martin Luther King Day and Labor Day. Wife testified

that Husband never came to the pick the children up for Veteran’s Day or Labor Day until

a day after his visitation was supposed to have started, so she made other plans. As to

Martin Luther King Day, Wife stated Husband did pick up the children that week-end and

he had an overnight visit, but when he asked for an additional day, she said no.

{¶33} The parties had a dog that Wife gave to a friend. Wife gave away the dog

in September or October of 2019. In the parties’ initial discussion in September or

October, Wife told Husband he could have the dog; however, he told her to take the dog

and he would take the cat. Husband never said anything to Wife about wanting the dog

until May of 2020, months after she had given the dog away. Morgan County, Case No. 21 AP 0001 11

{¶34} The GAL viewed both parents’ homes and had no concerns. When the

GAL spoke to G.C., G.C. told her that she used to know Husband drank a lot. That

stopped at the beginning of the separation. However, G.C. reported to the GAL that

Husband began drinking during parenting time at the beginning of 2020. G.C. reported

one specific time in April of 2020. The GAL did not follow up with Husband about this.

The GAL attempted to contact everyone both parties provided her with. Wife provided

her a larger list. The GAL attempted to call Russell Heban, who Husband asked her to

contact. She attempted to call him, but he did not answer, and his voice mail was not set

up. She does not have any documentation that he called her back. Husband did not

specifically ask the GAL to contact G.C.’s teachers.

{¶35} When asked about the move, the GAL testified she doesn’t think it’s far

enough away to where Husband can’t be active with the children, as he can still participate

in school events. While it may have been easier for the children to stay in Morgan County,

she believes it is Wife’s decision, and the children have connections in Tuscarawas

County.

{¶36} The GAL believes the parties have testified to varying degrees about the

amount of alcohol Husband consumes. It is clear Husband still drinks some alcohol,

which is concerning to her. Despite the assessment by Kimes, the GAL believes Husband

has alcohol issues, as he has had three OVI’s, and because of his admission to her that

he had an issue with alcohol at some point.

{¶37} The trial court issued a judgment entry and decree of divorce on

December 30, 2020. The trial court found as follows: the parties do not communicate

well and shared parenting would not be in the best interest of the children; the GAL Morgan County, Case No. 21 AP 0001 12

recommended Wife be designated the residential parent; Wife screened negative for

drugs in March of 2020; Husband tested positive for marijuana in March of 2020; Husband

has a history of OVI; the marital residence was sold for a profit of $10,727.11; Husband

owns a 2007 Ford F-150 which is valued at $7,464.00; Wife owns a 2015 GMC Terrain,

which is valued at $14,273.00; Husband’s equity in the truck is $7,464; Wife’s equity in

the Terrain is $2,027.26; Wife has possession of a John Deere tractor which was

purchased with proceeds from the sale of Wife’s pre-marital home; Husband violated the

temporary restraining order by making multiple withdrawals from the parties’ joint savings

account, totaling $6,196.55; the court is aware that Wife withdrew the remaining

$6,202.21 from the parties’ joint savings account and placed it in a trust account of her

attorney, due to Husband’s withdrawals from the account; both Husband and Wife have

retirement accounts, the bulk of which were accrued prior to the marriage; and Wife has

a State Farm universal life insurance policy, which was taken out prior the parties’

marriage.

{¶38} The trial court took into consideration the evidence presented, including

the report of the GAL, and all the factors set forth in R.C. 3109.04 regarding the allocation

of parental rights and responsibilities. The court found it is in the best interest of the

children for Wife to be named the residential parent and legal custodian of the children.

The court awarded Husband visitation every Saturday from 10:00 a.m. to 8:00 p.m., with

additional parenting time on holidays. The trial court specifically stated Husband could

petition the court for extended parenting time upon providing proof of attending and

successfully completing a drug and alcohol assessment, and by participating in and Morgan County, Case No. 21 AP 0001 13

successfully completing treatment as recommended by the counselor. The trial court

determined Husband should pay Wife $783.61 per month in child support.

{¶39} The trial court ordered: Wife is entitled to retain the net proceeds from the

sale of the marital residence in the amount of $10,727.11 due to the difference in the

equity in their respective vehicles; Husband shall retain the 2007 Ford F-150; Wife shall

retain the 2015 GMC Terrain; Wife shall retain the John Deere tractor and State Farm

Universal Life Insurance Policy; each party shall retain his or her own retirement

accounts; each party shall pay their own debts in their individual names; neither party

shall pay spousal support; Wife shall retain the remainder of the parties’ joint account

($6,202.21) since Husband withdrew $6,196.55 in violation of the temporary orders;

Husband is in contempt of court for violating the terms of the temporary restraining order;

and imposed a fine on Husband of $500.00.

{¶40} Husband appeals the December 30, 2020 judgment entry of the Morgan

County Court of Common Pleas, Domestic Relations Division, and assigns the following

as error:

{¶41} “I. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

ISSUING ITS CHILD SUPPORT ORDER BY FAILING TO INCLUDE A CHILD SUPPORT

GUIDELINE WORKSHEET AS PART OF THE FINAL, APPEALABLE JUDGMENT.

{¶42} “II. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

ISSUING PLAINTIFF/APPELLANT’S PARENTING TIME ORDER.

{¶43} “III. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

AWARDING DEFENDANT/APPELLEE CUSTODY OF THE MINOR CHILDREN. Morgan County, Case No. 21 AP 0001 14

{¶44} “IV. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

AWARDING DEFENDANT/APPELLEE THE JOHN DEERE TRACTOR, THE STATE

FARM LIFE INSURANCE, AND APPELLEE’S OHIO DEFERRED COMPENSATION

RETIREMENT AS HER ‘SEPARATE PROPERTY.’

{¶45} “V. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

AWARDING DEFENDANT/APPELLEE THE ENTIRE PROCEEDS FROM THE SALE OF

THE MARITAL RESIDENCE.

{¶46} “VI. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION

IN FAILING TO PROVIDE PLAINTIFF/APPELLANT AN OPPORTUNITY TO PURGE HIS

CONTEMPT.

{¶47} “VII. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION

IN FAILING TO ADDRESS PLAINTIFF/APPELLANT’S MOTION FOR CONTEMPT

FILED AGAINST DEFENDANT/APPELLEE.”

I.

{¶48} In his first assignment of error, Husband contends the trial court

committed error by failing to include a child support guideline worksheet as part of the

final, appealable judgment.

{¶49} In Marker v. Grimm, the Ohio Supreme Court held that a child support

computation worksheet must actually be completed and made a part of the trial court’s

record. 65 Ohio St.3d 139, 601 N.E.2d 496 (1992). This Court has held that the failure

to include the worksheet in the record constitutes reversible error. Bradley v. Hill, 5th

Dist. Delaware No. 19 CAF 10 0053, 2020-Ohio-2682. While Marker addressed the

application of a statute that has since been repealed, the current version of the support Morgan County, Case No. 21 AP 0001 15

guideline statute, R.C. 3119.022, continues to state that a standard worksheet form “shall

be used in all courts and child support enforcement agencies when calculating child

support * * *.” R.C. 3119.022(A). Further, R.C. 3119.02 provides that when a court issues

a child support order, the court “shall calculate the amount of the parents’ child support *

* * in accordance with the basic child support schedule, the applicable worksheet, and the

other provisions of Chapter 3119 of the Revised Code.” Thus, the rule of Marker is

applicable. Bradley v. Hill, 5th Dist. Delaware No. 19 CAF 10 0053, 2020-Ohio-2682.

{¶50} Compliance with the mandate of the Revised Code and Marker serves

three purposes. First, the worksheet allows an appellate court to review the trial court’s

compliance with the statutorily mandated process for calculating child support. Id.

Second, the worksheet supplies the data the trial court used to complete the child support

calculation, such as the amounts of each parent’s gross annual income, the amounts of

any income adjustments, and the amounts of any deviation adjustments. Id. The

obligation to include the child support worksheet in the record insures that all aspects of

the child support calculation are memorialized. Id. Finally, compliance with the Revised

Code fulfills the court’s duty “to act as the child’s watchdog in the matter of support.”

DePalmo v. DePalmo, 78 Ohio St.3d 535, 1997-Ohio-184, 679 N.E.2d 266 (1997).

{¶51} Wife contends the trial court did not commit error because there is a

worksheet in the record. Wife is correct that there is a child support worksheet prepared

by Morgan County Department of Job and Family Services in the record. However, the

computation in the worksheet contained in the record has Husband paying $804.23 per

month, not $783.61 per month as ordered by the trial court. While it appears the trial

court correctly utilized both Husband and Wife’s income and health insurance expenses Morgan County, Case No. 21 AP 0001 16

that they testified to at the hearing, it is not clear how the trial court came to the $783.61

number rather than the $804.23 per month contained in the worksheet.

{¶52} Because the child support worksheet in the record does not match the

award of child support by the trial court, we find the requirements of the Ohio Revised

Code and Marker are not met in this case. Thus, we must reverse and remand the matter

to the trial court so that it may comply with the requirements of R.C. 3119.022, R.C.

3119.02, R.C. 3119.22, and the Supreme Court of Ohio’s ruling in Marker.

{¶53} Husband’s first assignment of error is sustained.

II.

{¶54} Husband argues the trial court committed error in issuing parenting time

for Husband. Specifically, Husband contends the trial court did not review the factors

contained in R.C. 3109.51. Further, Husband argues the trial court did not provide an

explanation as to why his parenting time is “severely limited.”

{¶55} The standard of review for matters concerning visitation rights is whether

the trial court committed an abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 541

N.E.2d 1028 (1989). In order to find an abuse of discretion, we must determine the trial

court’s decision was unreasonable, arbitrary, or unconscionable, and not merely an error

of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶56} R.C. 3109.051 states the trial court should consider fifteen factors in

determining the children’s best interest regarding visitation. These factors include: prior

interactions of the children with the parents; location or residence of each parent; the

children’s and parents’ available time; age of the children; the children’s adjustment to

home, school, community; the wishes and concerns of the children; the health and safety Morgan County, Case No. 21 AP 0001 17

of the children; the amount of time available to spend with siblings; the mental and

physical health of all parties; each parent’s willingness to reschedule missed parenting

time; and any other factor in the best interest of the children.

{¶57} The central focus of any visitation order is the best interest of the children.

Kelm v. Kelm, 92 Ohio St.3d 223, 749 N.E.2d 299 (2001). “A trial court may limit or restrict

visiting rights of a party in order to further the child’s best interest.” Callender v. Callender,

7th Dist. Carroll No. 03-CA-790, 2004-Ohio-1382. The court has the “power to restrict

the time and place of visitation, to determine the conditions under which visitation will take

place, and to deny visitation rights altogether if visitation would not be in the best interests

of the child.” Id.

{¶58} If it is clear from the record the court considered the factors in R.C.

3109.051, even if the statute or the factors are not specifically referenced, we will not find

an abuse of discretion. Bonner v. Deselm-Bonner, 5th Dist. Guernsey No. 10CA000033,

2011-Ohio-2348. “[I]t is not an abuse of discretion when it appears from the journal entry

that some of the factors under that section were addressed.” Id., quoting Bernard v.

Bernard, 7th Dist. Columbiana No. 00 CO 25, 2002 WL 206411. Even when the trial court

cites the wrong statute as the basis of the factors it is considering, if the record reveals

that the proper factors were considered, the trial court’s judgment regarding visitation will

be affirmed. Id.

{¶59} Here, the trial court does not explicitly refer to the R.C. 3109.051 factors

in its judgment entry. Nonetheless, it is clear from the record the trial court did, in fact,

consider the factors. The trial court found the parties do not communicate well, and cited

concerns about Husband’s alcohol use and positive marijuana test in March of 2020 in Morgan County, Case No. 21 AP 0001 18

his determination of Husband’s parenting time. The trial court also cited the GAL’s

testimony and report. The GAL testified to concerns with Husband’s alcohol use, and to

the conflict between Husband and G.C.

{¶60} Husband asserts the trial court did not address Kimes’ testimony and/or

her credibility, and the decision by the trial court to not believe Kimes’ testimony regarding

Husband’s alcohol assessment was against the manifest weight of the evidence. We

disagree. It is clear from the trial court’s judgment entry that it did not find the testimony

of Kimes that Husband did not have a substance abuse disorder and did not need any

further treatment credible, as the trial court specifically stated in its judgment entry that

Husband could petition the court for extended visitation upon providing proof of attending

and successfully completing a drug and alcohol assessment, and by participating in and

successfully completing treatment as recommended by the counselor. As to the

testimony of Kimes, the trial court may believe all, part, or none of the testimony of any

witness who appears before it. Rogers v. Hill, 124 Ohio App.3d 468, 706 N.E.2d 438 (4th

Dist. 1998).

{¶61} Husband contends the trial court’s determination as to his alcohol history

is not supported by the record. We find there is competent and credible evidence in the

record to support the trial court’s determination of Husband’s alcohol history. Husband

and Rowe both admitted that Husband was drinking heavily when the temporary orders

were issued in 2019, but both testified that has since improved. Wife testified this cycle

of drinking heavily and improving was consistent with what occurred during the marriage.

During the marriage, Husband would drink less, but then would return to drinking heavily.

G.C. reported to both Wife and the GAL that Husband drinks when the children are with Morgan County, Case No. 21 AP 0001 19

him during his parenting time. Kimes’ opinion was based solely on what Husband told

her, and the drug test she completed did not screen for alcohol. The GAL stated that,

despite Kimes’ assessment, she believes Father has an alcohol issue, as evidenced by

his three OVI’s and his admission to her about his previous alcohol use.

{¶62} We find the trial court did not commit error or abuse its discretion in its

determination of parenting time for Husband. Husband’s second assignment of error is

overruled.

III.

{¶63} In his third assignment of error, Husband argues the trial court erred and

abused its discretion in awarding Wife custody of the children. We disagree.

{¶64} The standard of review in initial custody cases is whether the trial court

abused its discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).

An abuse of discretion implies that the court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

Given the nature and impact of custody disputes, the court’s discretion will be accorded

paramount deference because the trial court is best suited to determine the credibility of

testimony and integrity of evidence. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846

(1988). Specifically, “the knowledge a trial court gains through observing witnesses and

the parties in a custody proceeding cannot be conveyed to a reviewing court by a printed

record.” Id. Therefore, giving the trial court due deference, a reviewing court will not

reverse the findings of a trial court when the award of custody is supported by a

substantial amount of credible and competent evidence. Davis v. Flickinger, 77 Ohio

ST.3d 415, 674 N.E.2d 1159 (1997). Morgan County, Case No. 21 AP 0001 20

{¶65} R.C. 3109.04 requires a trial court to consider the best interest of the child

in making an award of custody incident to a divorce proceeding. R.C. 3109.04(F)(1)

provides that, in making this determination, a court is to consider all relevant factors,

including but not limited to: (a) the wishes of the child’s parents; (b) the wishes and

concerns of the child; (c) the child’s interactions and interrelationship with the parents; (d)

the child’s adjustment to her home and community; (e) the mental and physical health of

all persons involved in the situation; (f) the parent more likely to honor and facilitate

visitation and companionship rights approved by the court; * * * and (j) whether either

parent has established a residence, or is planning on establishing a residence outside the

state. There is no requirement that a trial court separately address each factor. Bashale

v. Quaicoe, 5th Dist. Delaware No. 12 CAF 10 0075, 2013-Ohio-3101. No one factor is

dispositive. Baker-Chaney v. Chaney, 5th Dist. Holmes No. 16CA005, 2017-Ohio-5548.

Rather, the trial court has discretion to weigh any and all relevant factors. Id.

{¶66} Husband contends the trial court did not properly consider each of the

factors in R.C. 3109.04(F)(1). However, the trial court specifically stated in its judgment

entry that it considered all the factors. Absent evidence to the contrary, an appellate court

will presume the trial court considered all of the relevant factors. Id. There is no evidence

to the contrary to indicate the trial court did not consider the relevant factors in this case.

R.C. 3109.04(F) provides the court with the discretion to weigh the relevant factors and

determine how those factors apply to the child’s best interest. Wooten v. Casey, 4th Dist.

Gallia, No. 03CA15, 2004-Ohio-55.

{¶67} Husband also argues the trial court failed to consider the children’s move

to a new community and new school. Husband essentially argues that the trial court did Morgan County, Case No. 21 AP 0001 21

not properly consider his testimony as to the difficulty of the children’s move on them and

himself, and committed error in relying on Wife’s testimony that the children were excited

to move, wanted to move, and were happy in a new school. It is well established that the

trial court, as the ultimate fact-finder and issue-resolver, is free to believe all, part, or none

of the testimony of each witness. State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d

1096 (4th Dist. 1992).

{¶68} Finally, Husband contends the trial court should not have relied on the

GAL’s recommendation as to the best interest of the children because the GAL did not

investigate the new school and home of the children. We disagree. Our review of the

record indicates the GAL performed the duties required, and was available for cross-

examination on her report by all parties at trial. Husband was able to cross-examine the

GAL and emphasize the claimed deficiencies in the report and to present witnesses.

Further, the GAL specifically testified the children were doing well in school, getting good

grades, and participating in extra-curricular activities. Due to COVID, the GAL conducted

a virtual home inspection of Wife’s home, and found it to be appropriate. The record here

indicates the trial court received and weighed the testimony of numerous witnesses in this

case, including the GAL. The trial court is the finder of fact, and addresses the weight

and credibility of the evidence before it. This court may not substitute its judgment for

that of the trial court. Smith v. Quigg, 5th Dist. Fairfield No. 2005-CA-002, 2006-Ohio-

1495.

{¶69} We find the trial court’s decision that it is in the best interest of the children

to name Wife the residential and custodial parent is supported by competent and credible Morgan County, Case No. 21 AP 0001 22

evidence and was not an abuse of discretion. Husband’s third assignment of error is

IV.

{¶70} In his fourth assignment of error, Husband argues the trial court abused

its discretion by awarding Wife the following as her separate property: John Deere

Tractor, State Farm Insurance Policy, and Ohio Deferred Compensation. We agree in

part and disagree in part.

{¶71} R.C. 3105.171(B) requires the trial court to determine what constitutes

marital property and what constitutes separate property. “In either case, upon making

such a determination, the court shall divide the marital and separate property equitably

between the spouses * * *.” R.C. 3105.171(B).

{¶72} R.C. 3105.171(A)(6)(a) defines separate property as “(ii) any real or

personal property or interest in real or personal property that was acquired by one spouse

prior to the date of the marriage.”

{¶73} However, “[t]he commingling of separate property with other property of

any type does not destroy the identity of the separate property as separate property,

except when the separate property is not traceable.” R.C. 3105.171(A)(6)(b). Therefore,

traceability is central when determining whether separate property has “lost its separate

character” after being commingled with marital property. Peck v. Peck, 96 Ohio App.3d

731, 645 N.E.2d 1300 (12th Dist. Butler 1994). The party seeking to establish an asset

as separate property has the burden of proof, by a preponderance of the evidence, to

trace the asset to separate property. Id. The characterization of property as separate or

marital is a mixed question of law and fact. Globokar v. Globokar, 5th Dist. Stark No. Morgan County, Case No. 21 AP 0001 23

2009CA00138, 2010-Ohio-1737. “Trial court decisions on what is presently separate and

marital property are not reviewed unless there is a showing of an abuse of discretion.”

Vonderhaar-Ketron v. Ketron, 5th Dist. Fairfield No. 10CA22, 2010-Ohio-6593.

{¶74} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. “The underlying rationale of giving

deference to the findings of the trial court rests with the knowledge that the trial judge is

best able to view the witnesses and observe their demeanor, gestures, and voice

inflections, and use these observations in weighing the credibility of the proferred

testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).

John Deere Tractor

{¶75} Husband argues the trial court committed error in determining the tractor

is Wife’s separate property. Husband’s argument is essentially that the items Wife

testified she purchased from the proceeds of her pre-marital home ($9,420.25 for the

marital residence down payment; $2,020.06 for a bedroom suite; and $7,935.43 for the

tractor) exceed the total amount of the proceeds she received from the home

($18,164.79) by approximately $1,200.

{¶76} We find there is competent and credible evidence to support the trial

court’s determination. Wife’s undisputed testimony was that she wrote the check for the

tractor directly from the proceeds of her pre-marital home. She stated she closed on the

sale of her house at the end of May of 2017, deposited the proceeds into her checking

account, and wrote the check for the tractor out of her personal checking account on June

2, 2017. Husband did not dispute Wife’s testimony that it was paid with the funds from

her pre-marital home. Morgan County, Case No. 21 AP 0001 24

{¶77} When asked about the $1,200 difference, Wife specifically testified that

the tractor and the bedroom furniture were paid directly out of the proceeds from the pre-

marital home. However, she further stated she was not certain that the down-payment

for the marital house came entirely from her checking account containing the proceeds

from the pre-marital home, as it may have been a combination of funds from this checking

account and funds from her pre-marital savings account.

{¶78} Under these circumstances, there was sufficient evidence to allow the trier

of fact to conclude the tractor was purchased with Wife’s pre-marital funds. As detailed

above, the trial court, as the trier of fact, is in the best position to assess the credibility of

the witnesses.

{¶79} Husband contends the testimony of Wife is not sufficient to establish the

tractor as separate property, and argues that because Wife did not present “documented

evidence tracing the money from the sale directly to the purchase” of the tractor, the trial

court committed error in finding the tractor her separate property. However, the trial court

can find an asset remained separate property without documentary evidence. Banez v.

Banez, 5th Dist. Stark No. 2006CA00216, 2007-Ohio-4584. We find Wife’s undisputed

testimony constitutes sufficient competent and credible evidence in support of the trial

court’s determination.

Ohio Deferred Compensation

{¶80} Wife has a retirement account with Ohio Deferred Compensation. She

testified that she rolled the account balance from her Genesis Healthcare System Thrift

Plan, which was accrued prior to the marriage, into the Deferred Compensation account. Morgan County, Case No. 21 AP 0001 25

{¶81} Wife argues the appreciation of her pre-marital Genesis Retirement

Account is passive appreciation, or an increase in value that was not due to the input of

either Husband or Wife’s labor, money, or in-kind contributions, but concedes that

$5,561.60 of the Deferred Compensation account is marital property.

{¶82} The determination as to whether the remainder of Deferred Compensation

Account is passive appreciation or whether it is marital property is within the discretion of

the trial court, and we review this determination under an abuse of discretion standard.

Middendorf v. Middendorf, 82 Ohio St.3d 397, 696 N.E.2d 575 (1998). However, the trial

court did not yet make that determination in this case, as it incorrectly assigned the

entirety of Wife’s Deferred Compensation account to her as separate property. While the

balance of the account may be passive appreciation of Wife’s pre-marital Genesis

Retirement Account, it is clear that at least $5,561.60 (employee contributions by Wife in

2019) is marital.

{¶83} Accordingly, we find the trial court committed error in finding the entirety

of the Deferred Compensation Account is Wife’s separate property. Upon remand, the

trial court should determine what portion of the Deferred Compensation Account is marital

property, subject to division.

State Farm Insurance Policy

{¶84} Husband argues the trial court committed error in finding the entirety of

the State Farm Insurance Policy is Wife’s separate property. The policy is a Universal

Life Insurance Policy. The policy had a cash value of $2,692.06 as of January 25, 2019.

{¶85} Wife testified she obtained the insurance policy when she was 23 years

old, prior to the marriage. However, she also testified that she made monthly payments Morgan County, Case No. 21 AP 0001 26

on the insurance policy during the marriage. Portions of insurances policies paid for with

marital funds are marital assets. Cook v. Cook, 5th Dist. Delaware No. 18 CAF 0072,

2019-Ohio-1961, appeal not allowed, 157 Ohio St.3d 1405, 2019-Ohio-131 N.E.3d 71.

Accordingly, we find the trial court committed error in awarding the entirety of the

insurance policy to Wife as her separate property. Upon remand, the trial court should

determine what portion of the insurance policy was paid for with marital funds, subject to

division.

{¶86} Based on the foregoing, Husband’s fourth assignment of error is sustained

in part and overruled in part.

V.

{¶87} In his fifth assignment of error, Husband contends the trial court abused

its discretion in awarding Wife the entirety of the proceeds from the sale of the marital

home because this was not an equal division of the marital asset. We disagree.

{¶88} The Revised Code requires a trial court divide the marital property equally

unless an equal division would be inequitable, in which case, “the court shall not divide

the marital property equally but instead shall divide it between the spouses in the manner

the court determines equitable.” R.C. 3105.171(C)(1). A trial court in any domestic

relations action has broad discretion in fashioning an equitable division of marital

property. Berish v. Berish, 69 Ohio St.2d 318, 432 N.E.2d 183 (1982). The trial court’s

judgment cannot be disturbed on appeal absent a showing that the trial court abused its

discretion. Id. Morgan County, Case No. 21 AP 0001 27

{¶89} In its judgment entry, the trial court stated that, due to the difference in the

equity in the vehicles, Wife shall retain the net proceeds from the sale of the marital

residence ($10,727.11).

{¶90} Husband’s primary argument in this assignment of error is that he believes

the valuation of the equity in the vehicles assigned by the trial court is an abuse of

discretion. We disagree. When making an equitable division of the property, the trial

court has broad discretion to develop some measure of value. Berish v. Berish, 69 Ohio

St.2d 318, 432 N.E.2d 183 (1982). Thus, “[t]he valuation of marital assets is typically a

factual issue that is left to the discretion of the trial court.” Roberts v. Roberts, 10th Dist.

Franklin No. 08AP-27, 2008-Ohio-6121.

{¶91} Husband testified he believes the truck should be valued at approximately

$4,800. Wife stated it was worth approximately $8,700, based upon a Kelley Blue Book

value. Husband testified the GMC Wife drives should be valued at $12,642; Wife stated

the value is $14,273.

{¶92} The parties agree that the F-150 was paid off during the marriage. Wife

testified she is listed as the owner, because she financed it through her employee credit

union. Wife and Husband agree the GMC is not paid off, and there is still a car payment

on it. We find the trial court did not abuse its discretion in determining the value of the

vehicles. The trial court accepted the testimony of Wife in determining the value of the

GMC, and assigned a slightly lower number than the Kelley Blue Book value testified to

by Wife on the F-150, due to Husband’s testimony about the condition of the vehicle. The

credibility of the competing valuations was for the trial court to decide. Morgan County, Case No. 21 AP 0001 28

{¶93} Husband also generally argues that the trial court’s property division was

not equal and thus the trial court abused its discretion in awarding Wife the proceeds from

the marital home. The trial court awarded Husband the equity of $7,464 in the F-150 and

the $6,196.55 he took out of the joint bank account, for a total of $13,660.55. The trial

court awarded Wife the equity in the GMC Terrain ($2,027.26), the proceeds from the

marital residence ($10,727.11), and the remaining amount in the joint checking account

($6,202.21), for a total of $18,956,58.

{¶94} Wife testified she paid $2,427.54 in expenses for Husband during the

pendency of the case. Thus, the final difference between the amount allocated to

Husband and the amount allocated to Wife was $2,868.49.

{¶95} The mere fact that a property division is unequal, does not, standing alone,

amount to an abuse of discretion. Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293;

Cunningham v. Cunningham, 5th Dist. Knox No. 09-CA-25, 2010-Ohio-1397. The trial

court has discretion when making an equitable division of the marital estate under R.C.

3105.171. Based upon the facts and circumstances of this case, we find the trial court

did not abuse its discretion in equitably dividing the marital estate.

{¶96} Additionally, during the trial, Husband specifically testified Wife could have

the proceeds from the sale of the marital home. On direct examination, when Husband’s

counsel asked him, “in regards to the proceeds from the sale of the house on Airport

Road, what are you asking to be done with that?” Husband responded, “She can have

it.” Counsel continued, “She can have the proceeds from the sale of the house?”

Husband state, “If – if that seems fair, yes.” Under the invited-error doctrine, a party may

not take advantage of an alleged error that the party induced or invited the trial court to Morgan County, Case No. 21 AP 0001 29

make. He v. Zeng, 5th Dist. Licking No. 2003CA00056, 2004-Ohio-2434; Bradley v.

Bradley, 8th Dist. Cuyahoga No. 109792, 2021-Ohio-2514.

{¶97} Husband’s fifth assignment of error is overruled.

VI.

{¶98} In his sixth assignment of error, Husband contends the trial court abused

its discretion in failing to provide him with an opportunity to purge his contempt.

{¶99} Our standard of review regarding a finding of contempt is limited to a

determination of whether the trial court abused its discretion. Sloat v. James, 5th Dist.

Stark No. 2008 CA 00048, 2009-Ohio-2849. The burden of proof in a civil contempt is by

clear and convincing evidence. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416

N.E.2d 610 (1980).

{¶100} “A sanction for civil contempt must allow the contemnor the opportunity to

purge him or herself of contempt.” O’Brien v. O’Brien, 5th Dist. Delaware No. 2003-CA-

F-12069, 2004-Ohio-5881.

{¶101} Husband asks this Court to reverse and vacate the finding of contempt

against him. However, there is no dispute that Husband took the funds out of the joint

bank account, in violation of the trial court’s temporary orders. Thus, the trial court did

not abuse its discretion in finding Husband guilty of contempt for the willful failure to abide

by the trial court’s temporary orders.

{¶102} In this case, although a contempt hearing was duly conducted, the

sanction provided no purge as required. Bair v. Werstler, 5th Dist. Tuscarawas No. 2004

AP 08 0060, 2005-Ohio-1697. The trial court classified the $500 as a fine rather than a Morgan County, Case No. 21 AP 0001 30

purge condition and imposed the fine without affording Husband an opportunity to purge

himself of his contempt.

{¶103} Accordingly, Husband’s assignment of error is sustained. Upon remand,

the trial court has the discretion to issue appropriate purge conditions for Husband to be

able to purge the finding of contempt. Young v. Young, 5th Dist. Stark No. 2019CA00035,

2020-Ohio-754 (remanded with directions to issue purge provision regarding contempt

finding).

VII.

{¶104} In his final assignment of error, Husband contends the trial court

committed error and abused its discretion in failing to address his motion for contempt

against Wife after both parties presented evidence on the motion at trial. Husband states

the trial court’s “silence as to the outcome” of his motion for contempt is error. We

disagree.

{¶105} A trial court’s failure to rule on a motion is presumed to be a denial of that

motion for purposes of appellate review. Hollenbaugh v. Hollenbaugh, 5th Dist. Delaware

No. 13CAF070056, 2014-Ohio-1124. In light of this presumption, we find the trial court

did not commit error in failing to rule on Husband’s motion. Id. (failure to rule on motion

for contempt was deemed to be a denial of the motion); Leister v. Leister, 5th Dist.

Delaware No. 97CA-F-07027, 1998 WL 751457 (overruling wife’s assignment of error

arguing the trial court erred in not ruling on her motion for contempt); Echols v. Echols,

2nd Dist. Clark No. 2020-CA-45, 2021-Ohio-969; Dimmerling v. Dimmerling, 7th Dist.

Noble No. 18 NO 0460, 2019-Ohio-2710.

{¶106} Husband’s final assignment of error is overruled. Morgan County, Case No. 21 AP 0001 31

{¶107} Based on the foregoing, Husband’s second, third, fifth, and seventh

assignments of error are overruled. Husband’s first and sixth assignments of error are

sustained. Husband’s fourth assignment of error is overruled in part and sustained in

part.

{¶108} The December 30, 2020 judgment entry of the Morgan County Court of

Common Pleas, Domestic Relations Division, is affirmed in part, and reversed and

remanded in part, for proceedings consistent with this opinion.

By Gwin, J., and

Baldwin, P.J., concur

Hoffman, J., concurs in part;

dissents in part _________________________________ HON. W. SCOTT GWIN

_________________________________ HON. CRAIG R. BALDWIN

_________________________________ HON. WILLIAM B. HOFFMAN

WSG:clw 0824 Morgan County, Case No. 21 AP 0001 32

Hoffman, J., concurring in part and dissenting in part

{¶109} I concur in the majority’s analysis and disposition of Appellant’s assignment

of error numbers 2, 3, 4,5, 6, and 7.

{¶110} I respectfully dissent from the majority’s decision to sustain Appellant’s first

assignment of error. The required child support worksheet was in the record. The fact

the amount Appellant was ordered to pay is less than the amount reflected on the

worksheet is an error Appellee could have appealed or cross-appealed. She did not do

so. I find any error related to the discrepancy has been waived. Accordingly, I would

overrule this assigned error.