[Cite as Edwards v. Edwards, 2013-Ohio-117.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
JENIFER L. EDWARDS :
Plaintiff-Appellee : C.A. CASE NO. 25309
v. : T.C. NO. 10DR279
GEOFFREY L. EDWARDS : (Civil appeal from Common Pleas Court, Domestic Relations) Defendant-Appellant :
:
..........
OPINION
Rendered on the 18th day of January , 2013.
ANTHONY F. COMUNALE, Atty. Reg. No. 0062449, 130 W. Second Street, Suite 1444, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
DALMA C. GRANDJEAN, Atty. Reg. No. 0024841, One South Main Street, Suite 1590, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Geoffrey Edwards appeals from a judgment of the Montgomery County 2
Common Pleas Court, Domestic Relations Division, which awarded sole custody of the
parties’ minor children to Jenifer Edwards, ordered child and spousal support to be paid to
Jenifer, and used a coverture fraction calculation to divide Geoffrey’s non-vested military
retirement benefits.
{¶ 2} For the reasons discussed below, we conclude that the trial court did not
abuse its discretion in allocating parental rights, in retaining jurisdiction over the amount and
duration of the spousal support obligation, or in using a coverture fraction calculation to
divide the non-vested military retirement benefits. The court did err in failing to credit
Geoffrey with payments made on an automobile that belonged to the parties.
I. Facts and Course of Proceedings
{¶ 3} Jenifer and Geoffrey Edwards were married in September 1998, and
separated in October 2009. Jenifer1 and the parties’ two minor children, eight and almost
four years of age, stayed in the marital home until the end of December 2009, when both
Jenifer and Geoffrey obtained separate housing. The parties disagreed at trial about what
the support agreement was at this time. Geoffrey testified that he agreed to pay $1,000 per
month in support, while Jenifer contended that Geoffrey agreed to pay her rent and utilities
for six months. After that, he was supposed to pay $1,000 a month and take care of
whatever else she and the children needed. At the time, Geoffrey was making about
$40,000 per year as a member of the Air Force, not including military housing allowances.
The parties also owed monthly payments of $450 to $500 each on two automobiles – a 2004
1 We will use the parties’ first names to lessen confusion. 3
Dodge Caravan that Jenifer drove, and a 2005 Nissan Altima that Geoffrey drove. Jenifer
had been a stay-at-home mother for most of the marriage, and was not employed outside the
home at the time of the separation. Her monthly rent at the new residence was $550.
{¶ 4} Geoffrey paid the security deposit for Jenifer’s apartment and also paid
Jenifer $1,000 in January. Further, he paid Jenifer approximately $2,345 between February
10 and April 14, 2010, gave her $1,000 in February 2010 from a tax refund of $4,750 that he
had received, and paid about $165 in child care expenses. After the parties established
separate residences, they agreed to shared parenting, in which the children spent equal time
with each parent. They split weekdays equally, and alternated weekends.
{¶ 5} Jenifer filed a complaint for divorce in March 2010, requesting temporary
custody, child support, and spousal support. Geoffrey filed an answer and counterclaim in
April 2010, requesting shared parenting. Neither party was granted temporary custody, and
no temporary support was ordered. However, a temporary restraining order was filed on
April 30, 2010, preventing Jenifer from removing the minor children from the State of Ohio,
except temporarily for a period of 14 days or less, for a scheduled vacation.
{¶ 6} Prior to the time the restraining order was filed, Jenifer removed the oldest
child from school. After Geoffrey returned the children from visitation on April 25, 2010,
Jenifer took the children to Missouri to live with her parents, because she could not afford to
take care of the children in Ohio. At the time, Jenifer knew that Geoffrey was scheduled to
start a military academy in Tennessee on April 25. The academy was scheduled to end at
the beginning of June. Up to that point, or at least since establishing separate residences,
Jenifer and Geoffrey had shared equal parenting time. Jenifer did not tell Geoffrey she was 4
leaving, and concealed her departure from him. However, no restraining order had been
filed before she left, nor was she aware that Geoffrey contemplated filing such an order.
{¶ 7} On May 3, 2010, Geoffrey filed a motion for an ex parte temporary custody
order based on the removal of the children, and the court set a hearing for May 13, 2010.
On May 10, 2010, Geoffrey was ordered to pay temporary spousal support of $433.50 per
month through the Support Enforcement Agency beginning May 14, 2010, and an additional
$799.19 monthly in temporary spousal support, beginning May 1, 2010. The latter amount
could be paid as mortgage or rent and basic utility payments. No order was made regarding
temporary custody.
{¶ 8} An agreed order was then filed on May 18, 2010, allocating parenting time
on an equal basis, with two weeks at a time for each parent, beginning May 22, 2010. At
that point, such an arrangement would be sensible since the elder child would be out of
school for summer vacation. Temporary support was reduced to $1,000 per month,
beginning June 1, 2010, to be paid in two installments per month, through the support
enforcement agency. The order further provided that for May 2010, Geoffrey would pay
$500 toward the monthly van payment and $500 directly to Jenifer. In addition, the order
stated that if Jenifer failed to pay the van payments, Geoffrey was entitled to redirect part of
the temporary spousal support to pay for it. A guardian ad litem was also appointed.
{¶ 9} In June 2010, Geoffrey filed a motion for shared parenting, based on
Jenifer’s representation that she would be moving back to Ohio. Geoffrey proposed equal
parenting time and shared legal custody, and asked that his residence be chosen for school
purposes. 5
{¶ 10} Jenifer returned to Ohio in July, and the parties resumed the parenting
arrangement they had used before she left in May, with each parent having equal time.
Jenifer filed an emergency motion to relocate on October 1, 2010, and a hearing was set for
October 21. However, prior to the hearing, Jenifer removed the children from the State
again on October 7, 2010, to move back to Missouri. Jenifer had been employed for about
four months, but was evicted from her apartment in October 2010.
{¶ 11} There was a dispute about whether Jenifer informed Geoffrey of her
intentions. In late October, Geoffrey did file a motion to show cause, and a hearing was set
on the motion for early January 2011. That hearing, however, was continued due to the
illness of one of the minor children, and was reset for February 2011. There is no indication
that the trial court ever held a hearing or ruled on the pending motion.
{¶ 12} The final hearing in the divorce action was held in January 2012, at which
time the court heard testimony from both parties. The court also considered the reports of
the guardian ad litem. In May 2012, the trial court issued its decision, awarding Jenifer sole
custody of the minor children and allowing Geoffrey eight weeks of summer parenting time.
The court ordered Geoffrey to pay child support of $376 per month per child, and $1,000 in
spousal support per month for 36 months, subject to the continuing jurisdiction of the court
as to both amount and duration. In addition, the court ordered Jenifer to pay for the debt
on the van, which had been repossessed, since she failed to use spousal support to pay for it.
And finally, the court used a coverture formula to compute Jenifer’s share of Geoffrey’s
military retirement pay. Geoffrey appealed from the judgment and decree of divorce.
II. Did the Trial Court Make Findings that are Unsupported by the Record? 6
{¶ 13} Geoffrey’s first assignment of error states that “ [t]he trial court committed
prejudicial error when it made findings that are not supported by the record.” Under this
assignment of error, Geoffrey challenges three findings. The first finding involves the
judge’s determination that Jenifer’s testimony was credible. In this regard, Geoffrey points
to several situations in which Jenifer allegedly demonstrated a lack of credibility, including
removing the children from the state without consent; failing to disclose bank records; and
denying certain matters in response to the request for admissions, while admitting the same
matters as true at trial.
{¶ 14} Generally, appellate courts defer to the trial court’s decision on credibility.
“The ‘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 proffered
testimony.’ ” In re J.Y., 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33, quoting
from Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1980).
{¶ 15} In the case before us, the trial court heard the testimony and observed the
witnesses. While there were times that Jenifer’s testimony differed from her written
responses to admissions, the trial court was entitled to reach its own conclusions on the
subject. Furthermore, while removing children from the geographic location of the other
parent is not the best course of conduct, there were factors that the trial court was entitled to
consider and credit on Jenifer’s behalf. First, the evidence indicates that during the parties’
marriage, they lived with Jenifer’s parents in Missouri for nine months, and Jenifer also 7
stayed with her parents on several occasions for lengthy periods when Geoffrey was in
training or was deployed. Thus, staying with Jenifer’s parents was a consistent practice
during times that Geoffrey attended training, as he planned to do in April to June 2010, when
she left the first time.
{¶ 16} Furthermore, when Jenifer left for Missouri the first time, the restraining
order had not yet been filed, and she did not knowingly violate a court order. Jenifer left
due to financial distress and at a time when Geoffrey was entering training for a few months
– making her departure for her parents’ home not an illogical choice. Again, this credits
Jenifer’s testimony as the trial court was entitled to do. Finally, the second time that Jenifer
left, she was being evicted and she did file a motion for emergency custody – which the trial
court never decided. Whether this was due to oversight or because Geoffrey failed to press
the issue is not clear from the record.
{¶ 17} The standard generally used to review trial court decisions in domestic
relations cases is “abuse of discretion.” Booth v. Booth, 44 Ohio St.3d 142, 144, 541
N.E.2d 1028 (1989). An abuse of discretion “ ‘ implies that the court's attitude is
unreasonable, arbitrary or unconscionable.’ ” Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983), quoting from State v. Adams, 62 Ohio St.2d 151, 157, 404
N.E.2d 144 (1980). After reviewing the evidence, we cannot conclude that the trial court’s
decision about Jenifer’s credibility was an abuse of discretion. The trial court was in the
best position to observe the demeanor of the parties.
{¶ 18} The second finding that Geoffrey challenges is the trial court’s conclusion
that Geoffrey’s band involvement would cause him to have significantly less time with his 8
children. Our review indicates that the evidence on this point is conflicting. Jenifer
testified that Geoffrey spent substantial time on his band and band practice, and Geoffrey
testified that he would quit the band if that were appropriate, in order to care for the
children. The trial court resolved this conflict in Jenifer’s favor, and there is evidence in the
record to support the decision. We cannot say the trial court’s finding was an abuse of
discretion.
{¶ 19} The third challenged finding is the trial court’s conclusion that Geoffrey is
not entitled to payments made to third-party creditors for the parties’ debts during the period
of divorce litigation. Geoffrey contends that he should be entitled to additional credit
against his arrearage for all van payments made on Jenifer’s behalf between June and
September 2010,which total $1,304.22.
{¶ 20} The trial court credited Geoffrey with $1,224.19 for an arrearage assessed
by the support enforcement agency, based on the fact that Geoffrey had paid Jenifer for the
month of May 2010, and had paid the van payment of $500. The court noted that the agreed
order of May 18, 2010, authorized Geoffrey to redirect part of the temporary spousal support
to pay the van obligation. However, the trial court did not give Geoffrey credit for any
further van payments, and concluded, after subtracting the credited amount, that Geoffrey’s
support arrearage was $1,750.
{¶ 21} Geoffrey testified at trial that, after May, he paid toward the van through
December 2010, and should be credited with those amounts, totaling $2,644.22, against any
arrearage. In support of his testimony, Geoffrey submitted Exhibit F, which is a spreadsheet
showing various payments made to Jenifer or on her behalf since May 2010. The 9
spreadsheet indicates that in addition to the $500 May payment already credited by the trial
court, Geoffrey made payments of $843.50 to Citifinancial Auto, via money order, on
August 12, 2010; $460.72 to Santander (the company that disposed of the van), via USAA
automatic withdrawal, on September 16, 2010; and $280 to Santander, via USAA automatic
withdrawal, on October 20, 2010. These amounts are supported by documents attached to
the spreadsheet, which show actual payments for the van in a total amount of $1,575.72.2
{¶ 22} Because Jenifer failed to submit any evidence to contest these payments, we
agree with Geoffrey that the trial court’s decision regarding the van payments is not
supported by the evidence, and that the court erred in failing to credit Geoffrey with the
amount of the van payments. Accordingly, the first assignment of error is sustained in part.
The trial court is ordered, on remand, to credit $1,575.72 towards the $1,750 arrearage.
{¶ 23} The first assignment of error is overruled in part and is sustained in part.
III. Did the Trial Court Abuse its Discretion regarding the Custody Award?
{¶ 24} Geoffrey’s Second Assignment of Error states that “It was an abuse of
discretion and against the manifest weight of the evidence for the trial court to award
custody to mother.” Geoffrey contends that the trial court failed to make findings regarding
relevant factors for shared parenting and improperly discounted the recommendations of the
guardian ad litem. Geoffrey also argues that if the trial court had concluded that shared
parenting was not in the best interests of the children, then the factors in R.C. 3109.04(F)(1)
2 The actual payments do not include an $8.50 fee which was paid to send a money order of $835 to Citifinancial Auto. ($1,584.72 – the total from the spreadsheet – minus $8.50 equals $1,575.72.) 10
would weigh more heavily in awarding custody to him.
{¶ 25} Geoffrey filed a motion for shared parenting, and a plan for shared
parenting, but Jenifer did not. In situations such as this, R.C. 3109.04(A)(1) allows trial
courts to reject shared parenting if it is not in the best interests of the children, and to
allocate the parental rights and responsibilities for the children’s care primarily to one
parent. If the court rejects a shared parenting plan and proceeds as if the request has not been
made, the court is required to enter findings of fact and conclusions of law as to the reasons
for the rejection. R.C. 3109.04(D)(1)(a)(iii). However, the court has discretion, as it does
in other domestic relations matters, in deciding whether a shared parenting plan should be
approved. R.C. 3109.04(D)(1)(b).
{¶ 26} R.C. 3109.04(F)(1)(a)-(j) provide a set of factors that the court uses to
decide the best interests of the child. These factors include: (a) the parents’ wishes; (b) the
child’s wishes, if the court has interviewed the child; (c) the child’s interaction with parents,
siblings, and others who may significantly affect the child’s best interests; (d) adjustment of
the child to home, school, and community; (e) the mental and physical health of all involved
persons; (f) which parent is more likely to honor parenting time rights; (g) any failure to
make child support payments, including arrearages; (h) any prior convictions involving
abuse, neglect, or sexually oriented offenses involving family members: (i) conscious and
willful denial of the other parent’s right to court-ordered parenting time; and (j) whether
either parent has established a residence or plans to establish a residence outside the state.
{¶ 27} In addition to these factors, when the court considers shared parenting, it is 11
required to consider: (a) the parents’ ability to cooperate and make joint decisions about the
children; (b) each parent’s ability to encourage sharing, love, and affection of the child with
the other parent; (c) any history of child abuse, domestic violence, or parental kidnapping;
(d) the parents’ geographic proximity as it relates to the practical consideration of shared
parenting; and (e) the guardian ad litem’s recommendations. R.C. 3109.04(F)(2).
{¶ 28} In Meyer v. Anderson, 2d Dist. Miami No. 01CA53, 2002 WL 1251449
(June 7, 2002), we stressed that:
The general R.C. 3109.04(F)(1)(a)-(j) “best interest” factors applicable to
every custody determination relate primarily to the health and well-being of the child
and the parents. The R.C. 3109.04(F)(2)(a)-(e) factors set out above relate more
specifically to the capacity of the parents to carry out a shared parenting plan.
“Shared parenting” is the product of efforts to avoid the pain of loss inherent
in the sole custody alternative, for both the parents and their child. It purports to
continue, as nearly as possible, the joint parent and child relationships which exist in
a marriage. Successful shared parenting requires at least two things. One is a strong
commitment to cooperate. The other is a capacity to engage in the cooperation
required. The R.C. 3109.04(F)(2) factors measure both components. Id. at * 2-3.
{¶ 29} The trial court rejected shared parenting and awarded primary custody to
Jenifer after considering the appropriate statutory factors. The court noted that Jenifer had
been the primary caretaker for the children as a stay-at-home mother, while Geoffrey had
worked full-time and had been involved in music during his off-work hours. The court
noted Jenifer’s testimony that she had relocated to Missouri for financial reasons, because 12
she and the children were going to be evicted from their home. In addition, the court
concluded that the children had assimilated into their community in Missouri and had friends
in their school community and in their home environment. The court also stressed that
Jenifer had a substantial support system available in Missouri that Geoffrey did not have in
Ohio. These conclusions are substantially supported by the evidence.
{¶ 30} Geoffrey contends that the court failed to consider that the parties had
managed to co-parent the two children during the time between their separation and the final
hearing. He also challenges the court’s failure to follow the recommendations of the
guardian ad litem, who stated that it would be in the best interests of the children if Jenifer
returned to Ohio and the parties had a shared parenting plan.
{¶ 31} Before addressing these matters, we note the Ohio Supreme Court’s
instruction that:
The discretion which a trial court enjoys in custody matters should be
accorded the utmost respect, given the nature of the proceeding and the impact the
court's determination will have on the lives of the parties concerned. The
knowledge a trial court gains through observing the witnesses and the parties in a
custody proceeding cannot be conveyed to a reviewing court by a printed record. In
this regard, the reviewing court in such proceedings should be guided by the
presumption that the trial court's findings were indeed correct. (Citations omitted.)
Miller v. Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
{¶ 32} In Miller, the Ohio Supreme Court did indicate that a trial court’s broad
discretion is not unlimited and must be guided by R.C. 3109.04. Id. Thus, a trial court’s 13
decision can be reversed for abuse of discretion. Id.
{¶ 33} After reviewing the evidence and the trial court’s decision, we cannot
conclude that the trial court acted unreasonably, arbitrarily, or capriciously. In the first
place, the trial court did consider the report of the guardian ad litem (GAL), but chose not to
follow the GAL’s final recommendation. “A trial court is not bound to follow a guardian ad
litem's recommendation.” Lumley v. Lumley, 10th Dist. Franklin No. 09AP-556,
2009-Ohio-6992, ¶ 46.
{¶ 34} The GAL in this case filed three reports. In the first report, the GAL
recommended that the minor children stay with their mother in Missouri. In the second
report, the GAL interviewed numerous persons, including the maternal aunt, who lived in
the Dayton area, and with whom Jenifer and the children had stayed for six weeks when they
returned to Ohio in the summer of 2010. The GAL noted that the aunt had stated that
Jenifer was an excellent parent who put her children’s needs above her own. The aunt also
stated that “it would be devastating to both the children and the mother if they were
separated,” and that Jenifer did not have a strong enough support system in Ohio to remain
there. Supplemental GAL Report, p. 4.
{¶ 35} In the supplemental report, the GAL recommended shared parenting, but
also recommended that Jenifer should be the residential parent if the parties could not agree
on a shared parenting plan. The GAL pointed out factors that would weigh against Jenifer,
including some instability shown while she was in Ohio. The GAL concluded that these
points were outweighed by the fact that Jenifer had been the primary caregiver and that
changing the arrangement could be devastating to the children. The GAL indicated that her 14
recommendation could change if Jenifer were unwilling to work at allowing the father more
time with the children or demonstrated the instability she had shown in Ohio.
{¶ 36} In the final report, the GAL concluded that it would be in the children’s
best interests if Jenifer returned to Ohio and the parties had a shared parenting plan. If
Jenifer were unwilling to return to Ohio, the GAL recommended that Geoffrey be designated
the residential parent. The GAL noted that Jenifer had improved regarding facilitating
visitation, but there were still some issues because Jenifer had failed to travel with the
children on 25% of the visits due to illness of problems with her vehicle. The GAL stressed
that no deliberate denial of visitation had occurred. No current stability issues were noted;
instead, the GAL only mentioned issues that occurred prior to the time that Jenifer left Ohio.
{¶ 37} The GAL did note that if the children resided with their father, he would
need to either quit his band or severely limit time with the band, because it would not be fair
to the children for the father to work full-time and then spend his spare time with his band.
{¶ 38} In deciding custody, the trial court mentioned these issues and the GAL’s
final recommendation. However, the court also noted that the GAL had previously
recommended that Jenifer should be designated the residential parent if the parties were
unable to enter into shared parenting. The court stressed that Jenifer had been living in
Missouri with the children since October 2010 (more than a year and a half prior to the
court’s decision), and that the children were doing well in their present environment. The
court also placed reliance on the undisputed fact that Jenifer had been the primary caregiver,
and that Geoffrey did not begin taking the children alone overnight for several months after
the parties separated. Further, the court stressed that Geoffrey was very involved with his 15
musical hobby and would have significantly less time to spend with the children than their
mother. Again, the record contains substantial evidence supporting these findings, and on
the areas where the evidence was disputed, the trial court credited Jenifer’s testimony. For
example, Geoffrey testified that his band practices once a week and that he would quit the
band if it were appropriate to care for the children. On the other hand, Jenifer testified that
Geoffrey’s band responsibilities took him away from the home three to five days a week for
practices and shows. She also said that when she was in Ohio and the parties had split
custody, Geoffrey often rescheduled parenting times due to band practices. In her words,
everything “centered around the band.”
{¶ 39} Another example is that Geoffrey testified that Jenifer had problems with
financial management and had anxiety attacks when they were married. Jenifer admitted
that she suffers from a generalized anxiety disorder, for which she takes medication, but
there is no evidence that her condition interferes at all with the care of the children. By all
accounts, the children behave appropriately and are doing well in school and their home
environment. Furthermore, on the subject of financial management, both parties appear
to have been unrealistic about how they would maintain their former standard of living,
when Jenifer had been essentially a stay-at-home mother during the marriage and had few
remunerative skills. Since moving to Missouri, Jenifer had, by the time of trial, completed
most of the course work for an associate’s degree in medical assisting.
{¶ 40} The trial court was entitled to decide which testimony to credit, since it was
in the position to view the witnesses and assess their credibility. There is no doubt that
Jenifer and Geoffrey are both loving parents and are involved with their children. 16
“[C]ustody issues are some of the most difficult and agonizing decisions a trial judge must
make, * * * [and] a trial judge must have wide latitude in considering all the evidence before
him or her.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). In this
regard, the case before us is legally no different from many others (or, perhaps it is unique,
like all the others). The choices are never easy, and we must defer to the trial court unless
the court acted unreasonably, arbitrarily, or unconscionably. There is no evidence of such
an attitude on the part of the trial court. To the contrary, the court was concerned about
making the best decision for the children.
{¶ 41} For the same reasons, the court’s decision was not against the manifest
weight of the evidence. In this situation:
“ ‘The [reviewing] court * * * weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts
in the evidence, the [finder of fact] clearly lost its way and created such a manifest
miscarriage of justice that the [judgment] must be reversed and a new trial
ordered.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
517, ¶ 20, quoting from Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d
176 (9th Dist.2001) (Other citations omitted.)
{¶ 42} In Eastley, the Ohio Supreme Court emphasized that:
In weighing the evidence, the court of appeals must always be mindful of the
presumption in favor of the finder of fact.
“[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment and every reasonable 17
presumption must be made in favor of the judgment and the finding of facts. * * *
“If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.” Id. at ¶ 21,
quoting from Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
1273 (1984), fn. 3. (Other citation omitted.)
{¶ 43} Again, the trial judge was in the best position to assess credibility.
Because the evidence is susceptible of more than one interpretation, we are required to adopt
the interpretation that is consistent with the judgment.
{¶ 44} Accordingly, the second assignment of error is overruled.
IV. Did the Trial Court Err in Limiting Parenting Time?
{¶ 45} Geoffrey’s third assignment of error states that “It was an abuse of
discretion for the trial court to unreasonably limit father’s parenting time with the children
over holidays and long weekends.” In this regard, Geoffrey contends that the trial court’s
order of visitation is unreasonable because it means that he will not see the children from the
beginning of their school year until Christmas vacation, and ignores the practice the parties
had of alternating major holidays. Jenifer’s brief does not specifically respond to these
points.
{¶ 46} The trial court’s order provides that Geoffrey is entitled to have the children
for eight weeks in the summer, to be taken in one block or separated into two four-week
blocks. Geoffrey is also allowed to have the children over spring break, and for Christmas, 18
consistent with the court’s standard order of visitation. In addition, the court stated that
Geoffrey is entitled to have parenting time in Missouri, upon providing Jenifer with 14 days
notice. If Geoffrey wishes to see the children more often between the start of the school
year and Christmas, or on long weekends, he has only to provide the proper notice and travel
to Missouri. Furthermore, Jenifer will go without seeing the children for up to eight weeks
at a time during the summer, with no opportunity for interim visits. In view of the distance
between the parties, the court’s order is not unreasonable, arbitrary, or unconscionable.
{¶ 47} The third assignment of error is overruled.
V. Did the Trial Court Err in Limiting Credit Against an Arrearage?
{¶ 48} Geoffrey’s fourth assignment of error states that “It was an abuse of
discretion for the trial court to limit father’s credit against his support arrearage to
$1,224.00.” In this regard, Geoffrey argues that the trial court acted unreasonably when it
refused to credit him with more than $7,500 he paid to third-party creditors on Jenifer’s
behalf.
{¶ 49} Geoffrey relies on Exhibit F, which allegedly shows $7,508.34 in payments
to third-party creditors between May and October 2010. We have already indicated that
$1,575.72 should have been credited to the arrearage due to payments for the van, which
leaves $5,932.62. Reference to Exhibit F indicates that this amount includes $3,000 in
temporary spousal support payments that were withheld from Geoffrey’s wages and paid to
the support enforcement agency. These were not payments to third-party creditors. The
remaining amount was paid for daycare and car insurance for Jenifer’s car. 19
{¶ 50} Geoffrey argues that the court denied him due process by disregarding the
Agreed Order of May 2010, which authorized him to make third-party payments in lieu of
temporary spousal support. We disagree. The order in question only authorized him to
make van payments in lieu of spousal support. The order does not mention any other form
of third-party payments, and Geoffrey is not entitled to deduct those items.
{¶ 51} As was previously noted, the parties were unrealistic about the income
required to support separate households. Jenifer’s income was not sufficient, even with
temporary spousal support of $1,000 per month, to pay a $500 per month car payment,
apartment rent of $550, and the many other expenses associated with maintaining a separate
household. We also note that Geoffrey received a tax refund of $4,750 during the divorce
proceedings and gave Jenifer $1,000, thereby retaining an unequal portion. In addition, the
trial court relieved Geoffrey of paying the deficiency amount owed on the van after it was
repossessed – a sum of approximately $7,965.85. The trial court properly ordered Jenifer to
pay this amount, since she failed to make the van payments. Under the circumstances we
find no abuse of discretion in failing to credit third-party payments.
{¶ 52} The fourth assignment of error is overruled.
VI. Did the Trial Court Err in Retaining Jurisdiction over Spousal Support?
{¶ 53} Geoffrey’s fifth assignment of error states that “It was an abuse of
discretion for the trial court to retain jurisdiction over the duration of Defendant-Appellant’s
spousal support obligation.” Under this assignment of error, Geoffrey contends that the trial
court abused its discretion by failing to provide a termination date for the spousal support. 20
In particular, Geoffrey relies on two cases in which we reversed trial courts, based on their
failure to specify termination dates for spousal support. See Parker v. Kohl-Parker, 2d
Dist. Montgomery No. 21760, 2007-Ohio-4895, and Canfarelli v. Canfarelli, 2d Dist.
Montgomery No. 18145, 2000 WL 966165 (July 14, 2000). These cases do not support
reversal of Jenifer’s spousal support award.
{¶ 54} The trial court set spousal support for Jenifer in the amount of $1,000 per
month for three years, thus providing a definite termination date. In contrast, we noted in
Parker that the trial court had provided for support to terminate upon the death of either
party or the wife’s cohabitation, whichever occurred first. Parker at ¶ 80.3
{¶ 55} Similarly, in Canfarelli, the award was for an “indefinite period of time.”
Canfarelli at * 1. The alleged error, in both Parker and Canfarelli, was the failure to set a
specific time period for termination. Our reasoning for reversing the spousal support award
in Canfarelli, and for initially reversing the award in Parker, was based on the preference or
presumption created “in favor of spousal support awards of definite duration” in Kunkle v.
Kunkle, 51 Ohio St.3d 64, 554 N.E.2d 83 (1990). Parker at ¶ 82.
{¶ 56} Consistent with Kunkle, the trial court set such a definite time period of three
years for Jenifer’s spousal support award. The trial court’s retention of jurisdiction over the
duration and amount of the award is also fully consistent with comments that we made in
Canfarelli.
3 This factual statement was actually incorrect, and was corrected on reconsideration, because the award, in fact, “contained a definitive end date of thirty months.” Parker v. Kohl-Parker, 2d Dist. Montgomery No. 21760, 2007-Ohio-5877, ¶ 2. Based on this correction, we ended up affirming the spousal support award. Id. 21
{¶ 57} We noted in Canfarelli that an additional basis for reversal in Kunkle was the
trial court’s failure to reserve continuing jurisdiction over the award. Canfarelli, 2000 WL
966165, at * 4. In this regard, we stated that:
[I]f the trial court in this case had failed to reserve jurisdiction to modify the indefinite
support award, that would clearly have been an abuse of discretion. See, e.g., Gullia v.
Gullia (1994), 93 Ohio App.3d 653, 661, 639 N.E.2d 822 (holding that failure to reserve
jurisdiction to modify an indefinite award of support is an abuse of discretion). Our own
district has even said that if spousal support is ordered for a substantial period of time and
the economic condition of the parties is likely to change, a trial court abuses its discretion
by not providing that the order is subject to later modification. See, e.g., Canales v.
Canales (March 17, 1989), Greene App. No, 88 CA 52, unreported, p. 8 (trial court
should have reserved jurisdiction to modify where four-year sustenance alimony was
awarded), and Jackson v. Jackson (Nov. 8, 1996), Montgomery App. No.15795,
unreported, p. 3 (approving and following Canales, and holding that trial court should
have reserved jurisdiction to modify, where support was awarded for three year period).
As a result, we find nothing significant about the trial court's reservation of jurisdiction in
the present case. Id. at * 5.
{¶ 58} In light of the above comments, the trial court did not abuse its discretion in
retaining jurisdiction over Jenifer’s spousal support award. As Jenifer points out, the retention
of jurisdiction makes it possible for both parties to ask for modification of the award, should
their economic circumstances change. In this regard, we note that Jenifer was scheduled to
graduate shortly after the final decree of divorce, and if she is self-supporting, this retention of 22
jurisdiction might work in favor of Geoffrey.
{¶ 59} Based on the preceding discussion, the fifth assignment of error is overruled.
VII. Did the Trial Court Err in Applying a Coverture Formula?
{¶ 60} Geoffrey’s sixth assignment of error states that “It was an abuse of discretion for
the court to employ a coverture fraction calculation instead of a hypothetical calculation to divide
Defendant/Appellant’s non-vested military retirement benefits.”
{¶ 61} The trial court used a coverture formula to divide the military retirement
benefits that Geoffrey accrued during the marriage. “ ‘ “The coverture fraction takes the total
years of marriage divided by the total years of [the former spouse's] service. Under this method,
[the recipient spouse] receives half of the coverture fraction multiplied by the value of the
pension” at the time of retirement.’ ” “The result of this method of computation is that the
recipient [spouse] obtains a proportionate share of any post-divorce increase in the value of her
former [spouse's] pension.” (Citations omitted.) Long v. Long, 176 Ohio App.3d 621,
2008-Ohio-3006, 893 N.E.2d 217, ¶ 60, n. 6 (2d Dist.).
{¶ 62} Geoffrey contends that the trial court should have used a “hypothetical retired
pay award,” because Jenifer should not be allowed to reap the financial rewards of any increases
in pay or rank that Geoffrey achieves. This argument is based on Jenifer’s alleged refusal to pay
the van payment and other misconduct during the proceedings, like leaving the state with the
children.
The general rule is that pension or retirement benefits earned during the course of
a marriage are marital assets and a factor to be considered not only in the division of 23
property, but also in relationship to an award of alimony. * * * [W]hen considering a fair
and equitable distribution of pension or retirement benefits in a divorce, the trial court
must apply its discretion based upon the circumstances of the case, the status of the
parties, the nature, terms and conditions of the pension or retirement plan, and the
reasonableness of the result; the trial court should attempt to preserve the pension or
retirement asset in order that each party can procure the most benefit, and should attempt
to disentangle the parties' economic partnership so as to create a conclusion and finality to
their marriage. Hoyt v. Hoyt, 53 Ohio St.3d 177, 178-179, 559 N.E.2d 1292 (1990)
(Footnotes omitted.)
{¶ 63} The trial court did not act unreasonably or arbitrarily in applying a coverture
formula. This is an accepted formula for dividing retirement benefits and its use was within the
court’s discretion.
{¶ 64} As support for his argument, Geoffrey cites Fazenbaker v. Fazenbaker, 11th
Dist. Trumbull No. 2009-T-0131, 2010-Ohio-5400. In Fazenbaker, the trial court used a “fixed
method of calculation,” rather than a coverture fraction, to divide retirement benefits. This
method uses the pay rate at the time of divorce and does not account for pay raises and
promotions that occur after the divorce. Id. at ¶ 9. When the wife appealed, the court of
appeals gave two reasons for affirming the trial court’s decision: 1) it was required to presume
the regularity of the trial court proceedings, based on the wife’s failure to file a trial transcript;
and 2) the divorce decree justified use of the fixed method, even though it limited the wife’s
share of the pension, because the decree divided the parties’ other marital assets on terms that
were highly favorable to the wife. Id. at ¶ 38-39. The husband’s loss of equity in the martial 24
home was, therefore, balanced by the wife’s loss of equity in his retirement, and the appellate
court could not say there was an abuse of discretion. Id. at ¶ 40-41.
{¶ 65} These circumstances are not present in the case before us. There were no
marital assets other than some personal property, and the debt that existed – the deficiency on the
van – was assessed to Jenifer. Thus, the trial court took Jenifer’s failure to pay for the van into
consideration. Regarding the alleged misconduct in leaving the state with the children, this is
not the type of behavior contemplated by the statutes pertaining to property division.
{¶ 66} Under R.C. 3015.171(A)(3)(a)(i), retirement benefits are classified as marital
property. R.C. 3105.171(B) requires that marital property be divided equitably, and an equal
division is presumed to be equitable. See R.C. 3105.171(C)(1) and (2). In Robbins v.
Robbins, 2d Dist. Clark No. 06CA0136, 2008-Ohio-495, we noted that:
[T]he basis for division of property, marital as well as separate, in R.C. 3105.171, takes
no account of the fault of either party, with but one exception.
R.C. 3105.171(E)(1) authorizes the court to make a greater award of marital
property to one spouse upon a finding that the other spouse “has engaged in financial
misconduct, including but not limited to, the dissipation, destruction, concealment, or
fraudulent disposition of assets.” Id. Misconduct for which an unequal division of marital
property may be ordered is necessarily financial in character. Id. at ¶ 15-16.
{¶ 67} In view of the above authority, the trial court could not have considered any type
of alleged misconduct, other than financial, when dividing marital property. The court did take
Jenifer’s financial conduct into consideration by requiring her to pay for the van. This was
equitable, and placed the parties in the position of being able to share equally in Geoffrey’s 25
retirement. Consequently, the court did not abuse its discretion by choosing to apply a coverture
formula to the division of Geoffrey’s retirement benefits.
{¶ 68} The sixth assignment of error is overruled.
VII. Conclusion
{¶ 69} The trial court’s judgment will be reversed in part and remanded for correction of
the amount credited to Geoffrey’s arrearage. The judgment will be affirmed in all other
respects.
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Anthony F. Comunale Dalma C. Grandjean Hon. Timothy D. Wood