[Cite as Jenkins v. Jenkins, 2013-Ohio-3326.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
RANI P. JENKINS, : APPEAL NO. C-120793 TRIAL NO. DR-1002500 Plaintiff-Appellee, : O P I N I O N. vs. :
TIMOTHY J. JENKINS, :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: July 31, 2013
Croswell & Adams Co., LPA, and Gregory L. Adams, for Plaintiff-Appellee,
Moskowitz & Moskowitz, LLC, and James H. Moskowitz, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Is it okay for a trial court to include language in a divorce decree that
says that following the divorce the parties should not molest, harass, disturb,
torment, or annoy each other, and that they should otherwise leave each other alone
to live their separate lives? We think it is. Therefore, we reject the first assignment
of error raised by the appellant, Timothy Jenkins.
{¶2} We also find little merit to arguments raised by Dr. Jenkins
contesting the amount of spousal and child support awarded by the court. We do
find it necessary, however, to modify the property distribution in the decree as it
relates to an automobile for which the court did not assign a value. In all other
respects, we affirm the judgment of the trial court.
I.
{¶3} Timothy and Rani Jenkins were married in 1995 and have three
children. They agree that the termination date of their marriage was December 31,
2009. The parties were able to agree on most issues regarding their parenting time
with their children. Issues about marital property, spousal support and child
support were tried before the court. At the conclusion of the hearing, the court
issued a final entry, and asked Ms. Jenkins to submit a decree of divorce for the
court’s adoption. The court entered the decree of divorce, which incorporated its
final entry.
II.
{¶4} In his first assignment of error, Dr. Jenkins asserts that the trial court
abused its discretion when it included in the decree of divorce what he terms a “life-
long restraining order.” He objects to this language:
2 OHIO FIRST DISTRICT COURT OF APPEALS
IT IS FURTHER ORDERED that henceforth the parties shall live
separate and apart for the rest of their natural lives and shall not
interfere with the other’s right to quiet enjoyment and peaceful living.
Neither party will molest, harass, disturb, torment, interfere with nor
annoy the other in any manner, directly or indirectly, at home, at place
of employment or anywhere as fully as if he or she were single and
unmarried.
{¶5} While maintaining that he does not intend to “molest, harass, [or]
disturb * * *” Ms. Jenkins in the future, Dr. Jenkins contends that the language is
tantamount to an injunction, and that the court erred by failing to comply with Civ.R.
65. Specifically, he complains that the court did not provide notice, as required by
Civ.R. 65(B), and it did not “set forth the reasons for [the order’s] issuance,” as
required by Civ.R. 65(D). Dr. Jenkins also argues that the court lacked authority to
incorporate the contested language because Ms. Jenkins did not clearly and
convincingly establish the required elements for the issuance of an injunction: a
right to relief under the substantive law, a necessity to prevent irreparable harm, and
a lack of an adequate remedy at law. See Procter & Gamble Co. v. Stoneham, 140
Ohio App.3d 260, 747 N.E.2d 268 (1st Dist.2000). We are not persuaded.
{¶6} We quickly dispose of the Civ.R. 65 arguments. Civ.R. 65(B) simply
provides that a “preliminary injunction” shall not be issued without notice to the
other side. A preliminary injunction is not at issue here. Rather, the language about
which Dr. Jenkins complains was included in a final decree of divorce that was
issued after a full adversarial hearing, a hearing of which Dr. Jenkins obviously had
full notice. As to the Civ.R. 65(D) argument, the court’s final entry sets forth more
than ample justification for the contested language.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Nor do we think it was outside the authority of the domestic relations
court to include such language within a final decree of divorce. The parties are
getting divorced, after all. The domestic relations court “has full equitable powers
and jurisdiction appropriate to the determination of all domestic relations matters.”
R.C. 3105.011. The parties’ quiet enjoyment and peaceful living separate from one
another certainly falls within the ambit of “domestic relations matters.” The
language was well within the court’s discretion, especially in light of the rancorous
history of the divorce proceedings. Further, the language applies to both Ms. Jenkins
and Dr. Jenkins. Any perceived burden imposed by the language will be shared by
each of them. The first assignment of error is overruled.
III.
{¶8} We consider Dr. Jenkins’s remaining assignments of error together.
He asserts that the court erred by failing to tie Class II spousal support to his actual
receipt of payments in the event of a withdrawal from his professional partnership,
by ordering Dr. Jenkins to pay monthly spousal support of $5,500 for six years and
not retaining jurisdiction over the duration or amount of support, by not
apportioning the value of a car retained by Ms. Jenkins as marital property, and by
ordering the parties to allocate their children’s medical expenses not covered by
insurance according to the percentages established on the child-support work sheet.
{¶9} We review all these issues under an abuse-of-discretion standard.
Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981). We conclude that
the trial court did not abuse its discretion with respect to three of the assignments of
error. Contrary to Dr. Jenkins’s contention, the Class II spousal support that he
must pay upon leaving his partnership was made contingent upon his actual receipt
of payment from the partnership. The court’s order requires payment only if Dr.
4 OHIO FIRST DISTRICT COURT OF APPEALS
Jenkins “terminates or withdraws as a partner * * * and the calculations in Sections
6.3 and 6.4 of the Limited Liability Partnership Agreement trigger payments to him.”
{¶10} There was also no abuse of discretion in the court’s order that Dr.
Jenkins pay spousal support for six years and its failure to retain jurisdiction over the
amount or duration. It is clear from the court’s entry that it considered the relevant
factors, including the incomes of the parties and the likelihood of their incomes
changing in the future. See R.C. 3105.18(C). It is also apparent that the court
considered those factors and each party’s contribution to childcare expenses when
determining that the children’s uncovered medical expenses should be apportioned
according to the percentages calculated in the child-support worksheet. We conclude
that this determination was not an abuse of discretion.
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[Cite as Jenkins v. Jenkins, 2013-Ohio-3326.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
RANI P. JENKINS, : APPEAL NO. C-120793 TRIAL NO. DR-1002500 Plaintiff-Appellee, : O P I N I O N. vs. :
TIMOTHY J. JENKINS, :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: July 31, 2013
Croswell & Adams Co., LPA, and Gregory L. Adams, for Plaintiff-Appellee,
Moskowitz & Moskowitz, LLC, and James H. Moskowitz, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Is it okay for a trial court to include language in a divorce decree that
says that following the divorce the parties should not molest, harass, disturb,
torment, or annoy each other, and that they should otherwise leave each other alone
to live their separate lives? We think it is. Therefore, we reject the first assignment
of error raised by the appellant, Timothy Jenkins.
{¶2} We also find little merit to arguments raised by Dr. Jenkins
contesting the amount of spousal and child support awarded by the court. We do
find it necessary, however, to modify the property distribution in the decree as it
relates to an automobile for which the court did not assign a value. In all other
respects, we affirm the judgment of the trial court.
I.
{¶3} Timothy and Rani Jenkins were married in 1995 and have three
children. They agree that the termination date of their marriage was December 31,
2009. The parties were able to agree on most issues regarding their parenting time
with their children. Issues about marital property, spousal support and child
support were tried before the court. At the conclusion of the hearing, the court
issued a final entry, and asked Ms. Jenkins to submit a decree of divorce for the
court’s adoption. The court entered the decree of divorce, which incorporated its
final entry.
II.
{¶4} In his first assignment of error, Dr. Jenkins asserts that the trial court
abused its discretion when it included in the decree of divorce what he terms a “life-
long restraining order.” He objects to this language:
2 OHIO FIRST DISTRICT COURT OF APPEALS
IT IS FURTHER ORDERED that henceforth the parties shall live
separate and apart for the rest of their natural lives and shall not
interfere with the other’s right to quiet enjoyment and peaceful living.
Neither party will molest, harass, disturb, torment, interfere with nor
annoy the other in any manner, directly or indirectly, at home, at place
of employment or anywhere as fully as if he or she were single and
unmarried.
{¶5} While maintaining that he does not intend to “molest, harass, [or]
disturb * * *” Ms. Jenkins in the future, Dr. Jenkins contends that the language is
tantamount to an injunction, and that the court erred by failing to comply with Civ.R.
65. Specifically, he complains that the court did not provide notice, as required by
Civ.R. 65(B), and it did not “set forth the reasons for [the order’s] issuance,” as
required by Civ.R. 65(D). Dr. Jenkins also argues that the court lacked authority to
incorporate the contested language because Ms. Jenkins did not clearly and
convincingly establish the required elements for the issuance of an injunction: a
right to relief under the substantive law, a necessity to prevent irreparable harm, and
a lack of an adequate remedy at law. See Procter & Gamble Co. v. Stoneham, 140
Ohio App.3d 260, 747 N.E.2d 268 (1st Dist.2000). We are not persuaded.
{¶6} We quickly dispose of the Civ.R. 65 arguments. Civ.R. 65(B) simply
provides that a “preliminary injunction” shall not be issued without notice to the
other side. A preliminary injunction is not at issue here. Rather, the language about
which Dr. Jenkins complains was included in a final decree of divorce that was
issued after a full adversarial hearing, a hearing of which Dr. Jenkins obviously had
full notice. As to the Civ.R. 65(D) argument, the court’s final entry sets forth more
than ample justification for the contested language.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Nor do we think it was outside the authority of the domestic relations
court to include such language within a final decree of divorce. The parties are
getting divorced, after all. The domestic relations court “has full equitable powers
and jurisdiction appropriate to the determination of all domestic relations matters.”
R.C. 3105.011. The parties’ quiet enjoyment and peaceful living separate from one
another certainly falls within the ambit of “domestic relations matters.” The
language was well within the court’s discretion, especially in light of the rancorous
history of the divorce proceedings. Further, the language applies to both Ms. Jenkins
and Dr. Jenkins. Any perceived burden imposed by the language will be shared by
each of them. The first assignment of error is overruled.
III.
{¶8} We consider Dr. Jenkins’s remaining assignments of error together.
He asserts that the court erred by failing to tie Class II spousal support to his actual
receipt of payments in the event of a withdrawal from his professional partnership,
by ordering Dr. Jenkins to pay monthly spousal support of $5,500 for six years and
not retaining jurisdiction over the duration or amount of support, by not
apportioning the value of a car retained by Ms. Jenkins as marital property, and by
ordering the parties to allocate their children’s medical expenses not covered by
insurance according to the percentages established on the child-support work sheet.
{¶9} We review all these issues under an abuse-of-discretion standard.
Cherry v. Cherry, 66 Ohio St.2d 348, 355, 421 N.E.2d 1293 (1981). We conclude that
the trial court did not abuse its discretion with respect to three of the assignments of
error. Contrary to Dr. Jenkins’s contention, the Class II spousal support that he
must pay upon leaving his partnership was made contingent upon his actual receipt
of payment from the partnership. The court’s order requires payment only if Dr.
4 OHIO FIRST DISTRICT COURT OF APPEALS
Jenkins “terminates or withdraws as a partner * * * and the calculations in Sections
6.3 and 6.4 of the Limited Liability Partnership Agreement trigger payments to him.”
{¶10} There was also no abuse of discretion in the court’s order that Dr.
Jenkins pay spousal support for six years and its failure to retain jurisdiction over the
amount or duration. It is clear from the court’s entry that it considered the relevant
factors, including the incomes of the parties and the likelihood of their incomes
changing in the future. See R.C. 3105.18(C). It is also apparent that the court
considered those factors and each party’s contribution to childcare expenses when
determining that the children’s uncovered medical expenses should be apportioned
according to the percentages calculated in the child-support worksheet. We conclude
that this determination was not an abuse of discretion.
{¶11} We do, however, conclude, as asserted in the fourth assignment of
error, that the trial court erred in not including a car retained by Ms. Jenkins
following the divorce in the property division. The car, which was purchased in
2008, was marital property. R.C. 3105.171(A)(3). Although Dr. Jenkins presented
no evidence about the value of the car at the time of the marriage’s termination, only
the vehicle’s initial purchase price, the trial court had before it sufficient evidence
from Ms. Jenkins that the car was worth at least $12,000 after the termination. The
court should have awarded Dr. Jenkins $6,000 for the value of the car.
IV.
{¶12} In sum, we overrule the first, second, third, and fifth assignments of
error. We sustain the fourth assignment of error, and modify the trial court’s
judgment to reflect that Ms. Jenkins must pay Dr. Jenkins $6,000 for the value of
the car. As modified, the judgment of the trial court is affirmed.
Judgment accordingly.
5 OHIO FIRST DISTRICT COURT OF APPEALS
H ENDON , P.J., and H ILDEBRANDT , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.