[Cite as Loughman v. Loughman, 2014-Ohio-2449.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
TERESA LOUGHMAN :
Plaintiff-Appellee : C.A. CASE NO. 25835
v. : T.C. NO. 12DR249
DAVID LOUGHMAN : (Civil appeal from Common Pleas Court, Domestic Relations) Defendant-Appellant :
:
..........
OPINION
Rendered on the 6th day of June , 2014.
TERESA LOUGHMAN, 3141 Muriel Avenue, Kettering, Ohio 45429 Plaintiff-Appellee
DAVID LOUGHMAN, 5361 Salem Bend Drive, Apt. C, Trotwood, Ohio 45426 Defendant-Appellant
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of David
Loughman, [Cite as Loughman v. Loughman, 2014-Ohio-2449.] filed July 19, 2013. David appeals from the Domestic Relations Court’s June 24, 2013 Final
Judgment and Decree of Divorce. We hereby affirm the judgment of the trial court.
{¶ 2} David and Teresa Loughman were married on February 14, 1992, in
Trotwood, and they have four daughters, namely C.L., whose date of birth is August 9, 1995;
T.L., whose date of birth is March 8, 1997; F.L., whose date of birth is June 7, 2000; and
D.L., whose date of birth is January 18, 2002. Teresa filed a Complaint for Divorce on
March 13, 2012. On April 4, 2012, the court issued a Temporary Order pursuant to which
David was ordered to pay Teresa temporary spousal support in the amount of $1,012.00 per
month beginning March 1, 2012. The order provided that David “shall have the right, option
and privilege of discharging this monthly spousal support by paying the mortgage/rent and
basic utilities at the marital residence.” On April 5, 2012, David filed a pro se Response to
Complaint for Divorce.
{¶ 3} On April 9, 2012, the court issued an Order Scheduling Mediation. On May
25, 2012, the Affidavit of David Loughman was filed. On June 18, 2012, the court issued
an Order Referring Case to Family Relations Department for a family investigation.
{¶ 4} The parties’ final hearing occurred on March 18, 2013. Teresa appeared,
represented by counsel, and David appeared pro se. Counsel for Teresa read the parties’
partial agreement into the record as follows:
MR. SHEETS: * * *
As noted, the real estate is in foreclosure. I think both parties
understand that at some point a judgment may be rendered against both of
them; they will be equally responsible for that debt.
*** 3
MR. SHEETS: That the automobiles have been divided to their
satisfaction. * * *
***
MR. SHEETS: The parties are in agreement that the wife will have
custody of the four minor children. The other issues relating to the children
basically are not agreed upon.
MR. SHEETS: We don’t have agreement on debts.
The personal property is agreed upon with brief exceptions. The wife
had placed a wheelchair, a TENS unit, and walker out for Mr. Loughman to
pick up. As far as she knows he or his friend of his (sic) picked those items
up. He says those items were not there.
The parties have agreed that Mrs. Loughman and Mr. Loughman will
make arrangements for him to get the keys to the house from her so he can go
over and check and see if those items are still in the house.
{¶ 5} After both parties acknowledged that they heard and understood the partial
agreement as read into the record, the court indicated that the report of the Family Relations
Department would be admitted as Court’s Exhibit I. Teresa then testified that she resides at
3141 Muriel Avenue in Kettering, that she is employed part time at Arby’s, and that she also
receives Social Security Income for the children as a result of David’s disability. She stated
that she receives a total of $444.00 a month for all of the children, and that the Social 4
Security Income has been reduced by $20.00 a month per child because David owes an
arrearage of $14,000.00. Teresa stated that the arrearage ”should be Mr. Loughman’s
responsibility because he knew the rules set forth from Social Security before he started
working.” She requested that David be required to compensate her in the amount of $80.00
per month to account for the reduction in income.
{¶ 6} Teresa testified that the county welfare agency obtained a judgment against
the parties in the amount of $2,200.00. The following exchange occurred:
Q. * * * What’s your position with regard to who should be responsible for that debt?
Should it be divided between you or do you feel that that’s your debt or Mr. Loughman’s
debt?
A. I would be willing to take that if he takes the other credit card debts.
Q. Have you already made partial payments on that Welfare debt?
A. Yes. They take my Ohio State every year for that.
Q. So they took your 2012 tax refund from the State?
A. Correct.
Q. * * * They do that for 2011 also?
A. Yes, but it was in both our names in 2011.
Q. So they took the joint return in 2011?
A. Right.
{¶ 7} Teresa testified she has a balance due on a Kohl’s department store credit
card, and that the card was used for “the children’s Christmas.” She stated that she has been
making the payments and will continue to do so. Her financial disclosure affidavit reflects 5
that the balance due is $700.00. Teresa stated that there is also a balance due on an H.H.
Gregg account in the amount of $1,100.00, and that she and David “should probably split it
because it was used for the household.”
{¶ 8} The following exchange occurred:
Q. * * * There’s a debt listed to Orchard Bank, a credit card for
Orchard bank, are you aware of what that debt is?
A. No, I sure don’t.
Q. Not a credit card that you had or used?
A. No.
Q. * * * And there’s also a bank overdraft fee of $300.00 owed. Are
you aware of where that came from?
A. That is - - that came from where enough money was not in the
bank to cover some of our bills and it took it out of that.
Q. During the time that occurred were you working?
Q. Did you have any income?
A. No, I did not.
Teresa requested that David assume responsibility for the overdraft charge. Teresa testified
that she has not received any money directly from David, and that he did make the house
payment in March, 2012.
{¶ 9} Regarding visitation, Teresa stated that she would like David’s visitation to
be supervised at Erma’s House. She stated that she believes David needs to attend an anger 6
management program, because he has relied upon “[h]itting, yelling, knocking food out of a
child’s hand” as discipline, and because the children “don’t feel safe” in his care. Teresa
stated that David has had no contact with the children in the last year. Teresa asked the
court to adopt the recommendations provided by the family services department.
{¶ 10} David testified that he is disabled and unable to work. He testified that he
receives $930.00 a month in Social Security Income, and that the amount he receives reflects
a monthly reduction of $100.00 due to an arrearage that he owes. David stated that he lives
in a two-bedroom apartment. The following exchange occurred:
THE COURT: You heard your wife’s testimony as to the debts?
THE DEFENDANT: Yes, sir.
THE COURT: Are you in agreement with what she suggested? And
let me just run through to make sure you understand. That you would be
responsible for the arrearage owed on the SSD overpayment essentially.
She would take the debt owed to Montgomery County. She would
take the debt owed to Kohl’s.
You would take the Orchard Bank, the bank overdraft.
And then the two of you would split the H H Gregg and split whatever
deficiency if they collect any on the house.
THE DEFENDANT: We should also split the overdraft because that
was marital, both joint account. And also should split the Orchard Bank
which was Mastercard which she used more than what I ever used and she
has one in her name as well, Orchard Bank. She had a card of her own at 7
Orchard Bank, a Mastercard that she used more than I ever did. And this is
like the overdraft fees of her. You can go back and check the records.
Her bank card’s the one that done most of everything because she had
my debit card hidden two years. I never seen mine. She took my debit card
from the mail and she hid it from me, my debit card.
And then also last year the income taxes, which are $6,000, she had
on a deposit on a card. I never seen none of it either. It was gone.
THE COURT: So you’re willing to do everything that was suggested
with the exception you want to split Orchard Bank and the bank overdraft as
well.
{¶ 11} David stated that he made the March and April, 2012 house payments, and
that he made no payments to Teresa directly. When asked about visitation, David stated
that he wanted “[v]isitation every other weekend, every other holiday and half day on birth
dates. They don’t have to spend the night to begin with, they can just come for the day; that
wouldn’t bother me.” David denied that he has an anger management problem, but he
stated that if ordered to do so, he will attend an anger management program. David denied
physically abusing the children. David acknowledged that he has not seen the children in
over a year. He stated, “I’ve tried to contact them through Facebook, through text
messaging and stuff like that with the numbers I have, and I never get no responses from
them.”
{¶ 12} The court issued a Decision on May 17, 2013. Regarding real estate, the 8
court determined that the marital residence “has gone into foreclosure and the parties agree
that they will be equally responsible for the debt associated with said foreclosure.”
Regarding personal property, the court determined that the parties “have divided their
personal property to their mutual satisfaction with the exception that Teresa indicated she
placed a wheelchair, a TENS unit, and a walker out for David to pick up and that parties are
unsure if those items were retained by David. If Teresa has these items, they will be given
to David.” The court declined to order spousal support, noting that the parties’ incomes are
“virtually identical,” and it declined to retain jurisdiction over the issue of spousal support.
{¶ 13} After noting that the parties agreed that Teresa shall have custody of the
children, regarding David’s parenting time, the court determined as follows:
The Family Relations Department was appointed to conduct a family
investigation in their matter (sic). The Family Investigator recommended that
David exercise his parenting time through a neutral third party. If that was
not possible, then his parenting time should be exercised at Erma’s House.
The Family Investigator also recommended that David attend anger
management and that he should rearrange his residence so that it is more
suitable for minor children to visit.
After having considered the testimony of the parties, their credibility
and demeanor, the family investigation submitted by the Family Relations
Department, all the statutory factors in ORC 3109, the court finds that it
would be in the best interest of the minor children that parenting time be 9
supervised through Erma’s House. The court attaches a great deal of
significance to the report of the Family Relations Department. The Family
Investigator indicated that the children are very uncomfortable in their
father’s presence at this time. Additionally, the Family Investigator
expressed concerns about the lack of contact that existed between David and
the children after the parties’ separation. Furthermore, this matter shall be
set for a review hearing in 120 days to determine if David and the children
have reconnected in such a fashion that supervised parenting time is no longer
warranted.
{¶ 14} The court determined that “there will be no child support at this time as a
result of the payment received on behalf of the children from Social Security Disability
which exceeds or is equal to the amount of child support that David would otherwise be
ordered to pay.” The court then determined as follows:
However, the court finds that David shall pay directly to Teresa,
$80.00 per month. This number reflects the sum being withheld from the
children’s Social Security payments as a result of David working in excess of
the Social Security Disability Administration guidelines for collecting
disability. The court finds it would not be appropriate to punish the children
for David’s behavior, and as a result, David shall pay $80 per month directly
to Teresa to make up the difference until such time as the repayment ceases.
Teresa shall provide David with documentation of what she is receiving for
the children from the Social Security Disability Administration on a monthly 10
basis.
{¶ 15} Regarding the parties’ debts, the court determined that Teresa will be
responsible for the $2,200 debt to Montgomery County regarding public assistance
payments, as well as the outstanding debt to Kohl’s. Regarding H.H. Gregg, the court noted
that Teresa testified that “this debt was used for purchasing marital items and that both
parties have retained these items. * * * David gave no testimony as to this debt.” The court
found “Teresa’s testimony to be credible and [found] that the parties shall be equally
responsible” for the H.H. Gregg debt. Regarding the Orchard Bank debt, the court noted that
Teresa “testified that David was the only individual who used this debt (sic), that she
believed it was used for nonmarital items, and that David should be responsible for this debt.
David did not testify as to the debt.” The court determined that “David used the Orchard
Bank credit card for non-marital purposes, and as a result shall be solely responsible for said
debt * * * .” Finally, regarding the bank overdraft, the court determined that the debt “was
a result of the parties purchasing items for necessaries during the course of their marriage,
and as a result, it is a marital debt” to be shared equally.
{¶ 16} Regarding the temporary order issued on April 4, 2012, the court determined
as follows:
* * * David was ordered to pay Teresa the sum of $1,012 per month,
effective March 1, 2012. At the time the order was instituted, David was
receiving $12,360 annually from Social Security Disability and was earning
an additional $13,000 annually from McDonalds.
Teresa testified that David paid this sum in March of 2012, but has 11
paid nothing since. David testified that he paid both March and April of
2012.
The court finds David’s testimony to be credible in this matter in that
he paid both March and April’s Temporary Order payment. Therefore, as of
March 1, 2013, David had a Temporary Order arrearage of $10,120.
However, the court finds this number to be excessive given that for a
significant portion of 2012 the only income that David was receiving was the
Social Security Disability in the amount of $12,300 annually. If the
Temporary Order were kept in place, David’s obligation under the Temporary
Order would have nearly exceeded his annual income. The court finds that a
temporary spousal support number of $400 per month would have been more
equitable. Therefore, David’s spousal support is reduced to $400 per month
effective May 1, 2012, and as a result, the court finds that David has a
Temporary arrearage of $4,000. Said arrearage shall be extinguished at the
rate of $100 per month.
The trial court’s Final Judgment and Decree of Divorce is consistent with its May 17, 2013
Decision.
{¶ 17} We initially note that David‘s brief does not comply with the requirements
of Rule 16 of the Ohio Rules of Appellate Procedure, which provide that an appellate brief
must contain a statement of the assignments of error presented for review, with reference to
the place in the record where each error is reflected, as well as a statement of the issues
presented for review. We will construe each paragraph of David’s brief as individual 12
assignments of error.
{¶ 18} David’s first assigned error provides:
“REAL ESTATE - PLAINTIFF WAS ORDERED TO LIVE IN HOME AND
MAINTAIN IT, AT 2651 SOUTH BLVD., KETTERING, OHIO, 45419, UNTIL REAL
ESTATE WAS SOLD. SHE ABANDONED SAID HOME 2 MONTHS LATER
WITHOUT NOTIFYING ME OF HER INTENTIONS.”
{¶ 19} The parties agreed at the final hearing that their home was in foreclosure,
and that they would share the responsibility for any debt associated with the foreclosure. At
the time of the hearing, Teresa resided on Muriel Avenue, and the record does not contain an
order requiring Teresa to remain at the marital home. David’s first assigned error is
overruled.
{¶ 20} David’s second assigned error is as follows:
INCOME TAX, 2011-2012 TAX YEAR - WE HAD FILED
JOINTLY AND WERE TO RECEIVE $6100.00 BACK FROM THE IRS.
AFTER FUNDS WERE RECEIVED, SHE CHANGED THE LOCKS ON
OUR HOME, AND SHE KEPT THE ENTIRE TAX RETURN WHICH I
WAS ENTITLED TO HAVE HALF OF. AS SHE KEPT THE TOTAL
AMOUNT, I WOULD LIKE MY HALF OF THE RETURN CREDITED TO
ANY ARREARAGE I HAVE ON CHILD SUPPORT OR ALIMONY.
{¶ 21} As this Court has noted:
In divorce proceedings the trial court must divide the parties' separate
and marital properties equitably. R.C. 3105.171(B). Marital property shall be 13
divided equally, unless a different division would be equitable. R.C.
3105.171(C). Marital property includes all real and personal properties or
interests therein that are acquired by either or both spouses during the
marriage. R.C. 3105.171(A)(3)(a)(i). In determining what constitutes an
equitable division of marital property, the trial court must consider all
relevant factors, including those set forth in R.C. 3105.171(F). Kestner v.
Kestner, 173 Ohio App.3d 632, 2007-Ohio-6222, 879 N.E.2d 849, ¶ 10 (7th
Dist.). Pentella v. Pentella, 2nd Dist. Montgomery No. 25705,
2014-Ohio-1113, ¶ 7.
{¶ 22} “Appellate courts review a trial court's division of property under an abuse
of discretion standard * * * .” Id., ¶ 8. “Abuse of discretion” has been defined as an
attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeons, Inc.,
19 Ohio St.3d 83, 482 N.E.2d 1248 (1985). A decision is unreasonable if there is no sound
reasoning process that would support that decision. AAAA Enterprises, Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990).
Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7.
{¶ 23} At the final hearing, David agreed that the only property in dispute was a
wheelchair, a TENS unit, and a walker. In the course of discussing the parties’ debts, he
asserted that “then also last year the income taxes, which are $6,000, she had on a deposit on
a card. I never seen none of it either.” Given David’s initial agreement as to the parties’
property, we cannot conclude that the trial court abused its discretion in failing to credit
David’s unsupported and conclusory testimony regarding the tax refund. David’s second 14
assignment of error is overruled.
{¶ 24} David’s third assigned error is as follows:
{¶ 25} “H.H. GREGG - CREDIT CARD - I FEEL THAT SINCE SHE KEPT ALL
THE MERCHANDISE, I FEEL SHE SHOULD BE RESPONSIBLE FOR PAYING THE
ENTIRE DEBT.”
{¶ 26} David agreed at the final hearing to Teresa’s proposal that the parties’ share
responsibility for the H.H. Gregg debt. David’s third assigned error is overruled.
{¶ 27} We will consider David’s fourth and fifth assigned errors together. They
are as follows:
“CHILDREN - SHE WAS ORDERED TO GIVE ME CONTACT INFORMATION,
AND SHE HAS NOT DONE THAT. WHEN I DID FIND A WAY OF CONTACTING
THEM, SHE CHANGED INFORMATION SO THAT I COULDN’T CONTACT THEM.”
And,
“MEDICAL EQUIPMENT - SHE NEVER DID RETURN MY 2 WHEELCHAIRS
OR TENS UNIT, AND I AND MY MOTHER WENT TO THE HOME TO MEET HER
AND PICK THEM UP, BUT SHE NEVER CAME TO THE HOME WITH THE
EQUIPMENT.”
{¶ 28} This appeal is not the proper forum to address Teresa’s alleged failure to
comply with the Final Decree, but rather is limited to analysis of alleged error committed by
the trial court in the proceedings below. Any such alleged failure to comply with the Final
Decree is properly the subject of a motion before the trial court.
{¶ 29} We will consider David’s sixth, eighth, and ninth assigned errors together. 15
They are as follows:
I AM APPEALING THE DECISION OF THE FAMILY
INVESTIGATION UNIT REFERRING TO THE ANGER MANAGEMENT
AND THE SUPERVISED VISITATION AT ERMA’S HOUSE, AS
NEITHER OF THESE ARE AN ISSUE, AND HOW CAN SOMEBODY
PASS JUDGMENT ON SOM[E]BODY WHEN THEY ONLY SPENT A ½
HOUR WITH THEM.
“WHEN THE CHILDREN WERE INTERVIEWED BY THE FAMILY
INVESTIGATION TEAM, THEIR STORIES WERE AS IF THEY WERE SCRIPTED.
THE CHILDREN ARE TERRIFIED OF THEIR MOTHER BECAUSE IF THEY DON’T
DO WHAT SHE TELLS THEM TO DO, SHE THREATENS THEM,”
“FAMILY INVESTIGATIONS STATED THAT MY APARTMENT WAS UNFIT,
AND THEY WERE NEVER TO MY PLACE OF RESIDENCE TO INVESTIGATE.”
{¶ 30} The Family Investigation Report may not be “appealed” herein, and we note
the trial court did not order David to attend an anger management program. To the extent
that David may be arguing that the trial court erred in ordering that his parenting time be
supervised at Erma’s House, as this Court has previously noted, the “statute governing
parenting time enumerates fifteen factors plus ‘[a]ny other factor in the best interest of the
child,’ R.C. 3109.051(D)(16), that a court must consider ‘in determining * * * parenting
time matters under this section,’ R.C. 3109.051(D).” Marinella v. Marinella, 2nd Dist. 16
Montgomery No. 25449, 2013-Ohio-2932, ¶ 11. “It is within a trial court’s discretion to
determine matters of parenting time.” Id., ¶ 13.
{¶ 31} The court indicated that it considered the statutory factors. The Family
Investigation Report, to which the trial court attached “a great deal of significance,” provides
that the investigator interviewed Teresa individually and with the children, David
individually and with the children, and each of the children individually. The investigator
also visited the homes of both David and Teresa. Regarding the “maternal family session,”
the report provides that there “was good camaraderie observed between the mother and the
children, * * *. The children were very comfortable in the session and they freely interacted
among themselves.” Regarding the “paternal family session,” the report provides that the
“children were observed to sit apart from father in the lobby, and when entering the office
area and conference room, they remained physically apart from father as much as was
possible. The children did not initiate any conversation with father, and responded with
short answers.”
{¶ 32} Regarding the investigator’s interview with C.L., the report provides that
C.L. was 17 at the time, and that she “[a]sserts that father has abused her physically and
emotionally over the years, and she believes that he could have attempted to see she (sic) and
her sisters since the marital separation. She related that she has had no contact with father
since May, nor has she had any desire to see him.” The report provides that C.L. indicated
“that it was further insulting to hear father refer to she (sic) and her sisters as being
‘beautiful’, whereas, he always used to refer to them as being ‘worthless, fat and ugly.’”
{¶ 33} Regarding F.L., the report provides that she was 12 at the time of the 17
interview, and that she “doesn’t really miss her father and would be very happy if the judge
were to decide that she were to stay mostly with her mother. She related that she would be
‘mad’ if the judge were to decide that she would be mostly with father.” The report provides
that F.L. related that “her mother would likely send her to her room if she were to misbehave.
In contrast, father would reportedly ‘yell and cuss at us.’”
{¶ 34} Regarding T.L., the report provides that she was 15 at the time of the
interview, and that she reported that “Father never came back to the home after he departed
nor have there been any conversations with him. She feels ‘fine’ about this situation to
continue, noting that she does not miss him.” The report provides that T.L. “recalls most of
father’s interaction with her as being negative and that father was mean to them. Father
would allegedly hit she (sic) and her sisters over the years mostly with his hand on their legs.
She feels that father picked on her the worst.” Regarding D.L., the report provides that she
was ten and a half years old at the time of the interview, and that she “described that she
doesn’t really feel comfortable being with her father, describing him as being ‘mean’, and
relating that over the years, he has ‘hit me with his bare hands on my legs’ and she also
alleges that he has also used a paint stirrer on [C.L.] and broken it.”
{¶ 35} Given the consistent statements by the children regarding David’s abusive
conduct and their reluctance to be in his care, we conclude that the trial court did not abuse
its discretion in ordering that David’s parenting initially be supervised subject to review in
120 days. David’s sixth, eighth, and ninth assigned errors are overruled.
{¶ 36} David’s seventh assigned error is as follows:
“PERSONAL PROPERTY - SHE DISPOSED OF ALL MY TOOLS, FISHING 18
EQUIPMENT, AND MOST OF MY CLOTHING AT YARD AND GARAGE SALES.
ESTIMATED VALUE: $1,000.00, WHICH I WOULD LIKE APPLIED TO MY
ARREARAGE, AS WELL.”
{¶ 37} David agreed at the final hearing that the only personal property at issue was
the medical equipment, and there was no evidence adduced regarding tools, fishing
equipment and clothing. David’s seventh assigned error is overruled.
{¶ 38} David’s final assignment of error is as follows:
“REPAYMENT TO SOCIAL SECURITY - I SHOULD NOT BE SOLELY
RESPONSIBLE FOR THE REPAYMENT BECAUSE THE WHOLE FAMILY
BENEFITTED FROM THE MONEY. I FEEL IT SHOULD BE SPLIT 50-50 EACH
MONTH, WHICH WOULD BE $40.00 EACH.”
{¶ 39} David agreed to assume responsibility for the repayment to social security at
the final hearing, and his final assigned error is overruled.
{¶ 40} Having overruled David’s assigned errors, the judgment of the trial court is
affirmed.
FROELICH, P.J. and HALL, J., concur.
Copies mailed to:
Teresa Loughman David Loughman Hon. Timothy D. Wood