Woeste v. Woeste

2022 Ohio 2825

• Court: Ohio Court of Appeals
• Decided: August 15, 2022
• Docket: CA2021-09-055
• Status: Published

Opinion

[Cite as Woeste v. Woeste, 2022-Ohio-2825.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

SUZANNA WOESTE nka BACHMAN, : CASE NO. CA2021-09-055

Appellee, : OPINION 8/15/2022 : - vs - :

MICHAEL A. WOESTE, :

Appellant. :

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. 2019DRA00052

Michael A. Kennedy, for appellee.

Engel & Martin, LLC, and Jim L. Hardin, for appellant.

M. POWELL, P.J.

{¶ 1} Appellant, Michael A. Woeste, appeals a decision of the Clermont County

Court of Common Pleas, Domestic Relations Division, designating appellee, Suzanna

Woeste nka Bachman, residential parent and legal custodian of the parties' minor daughter,

and ordering a division of the parties' marital and separate property in their divorce action.

{¶ 2} The parties were married on October 25, 2003. Two sons, Ruppert and Ian, Clermont CA2021-09-055

and a daughter, Vivian, were born issue of their marriage.1 On January 10, 2019, Suzanna

filed a complaint for divorce. Ruppert was almost 15 years old; Ian was almost 11 years

old; Vivian was six and one-half years old. A guardian ad litem ("GAL") was appointed for

the children.

{¶ 3} The parties owned two residences, the marital home located on Baas Road

in Batavia, Ohio, and a residence located on Madison Street in Glouster, Ohio (the "Madison

Street Property"). On January 29, 2019, Michael was granted exclusive occupancy of the

marital home. The outstanding mortgage balance was then $119,831.66. Pursuant to an

agreed entry filed on July 19, 2019, the marital home was to be sold. The agreed entry

further stated, "Effective February 1, 2019, [Michael] shall pay the mortgage, taxes and

insurance on said property." The marital home sold for $196,000 in July 2019. The net

proceeds were deposited into an escrow account.

{¶ 4} On November 13, 2019, the parties filed stipulations. Pursuant to the

stipulations, the duration of the marriage was from October 25, 2003, to February 1, 2019.

The stipulations indicated that the marital home had been sold, that the net proceeds had

been deposited into an escrow account with Michael's counsel as trustee, and that the

escrowed sale proceeds would be disbursed as agreed by the parties or ordered by the trial

court. The stipulations ordered the parties to sell the Madison Street Property, stating

At closing on sale of the [Madison Street Property] and following payment of all expenses incident to sale, including but not limited to, the first note and mortgage to Ohio University Credit Union in the approximate amount of $2,500.00, real estate taxes, * * * the net proceeds shall be equally divided between the parties. To the extent that [Michael] has paid taxes on this property, he shall be credited with half of the amount so paid.

In addition to the $2,500 note owed to Ohio University Credit Union, the stipulations further

1. For privacy and readability, we refer to the children using fictitious names. -2- Clermont CA2021-09-055

indicated that the parties owed $2,000 in delinquent taxes for the Madison Street Property.

{¶ 5} Finally, as pertinent here, the stipulations provided,

[Michael] shall receive, free and clear of any interest on behalf of [Suzanna], all right, title, and interest in the businesses known as "Permaculture Guru" and "Phoenix Farm Ohio LLC." [Michael] shall receive all assets and be responsible for all liabilities associated with said businesses. [Michael] shall retain all equity contained therein, including full ownership of all shares of stock, distribution of income and earnings, accounts, equity, equipment, and furnishings.

{¶ 6} On April 8, 2020, both parties filed proposed shared parenting plans. By then,

Michael's relationship with his sons was strained: Ruppert was refusing all parenting time

with Michael; parenting time with Ian only occurred during reunification therapy sessions.

By contrast, the parties were following the parenting time schedule established by agreed

entry in October 2019 regarding Vivian, to wit, Michael was exercising weekly parenting

time from 3:00 p.m. on Wednesday until 8:00 a.m. on Friday, and on alternating weekends.

However, following his parenting time with Vivian on Father's Day on June 21, 2020,

Michael kept Vivian and filed an emergency motion for change of custody, alleging "abuse,

neglect and lack of adequate supervision." Michael refused to return Vivian to Suzanna

"until a decision [was] made." Suzanna filed a contempt motion against Michael. The

magistrate found Michael in contempt on August 4, 2020. Vivian was returned to Suzanna.

Vivian was therefore withheld from her mother from June 21, 2020, until August 4, 2020, or

six weeks.

{¶ 7} The trial court held a hearing on the divorce complaint on October 13-14,

2020. By judgment entry filed on January 8, 2021, the trial court granted the parties a

divorce, adopted the parties' stipulations "as additional findings and orders," designated

Suzanna as the residential parent and legal custodian of the children and granted standard

parenting time to Michael, and divided the parties' property and debts.

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{¶ 8} A judgment entry and decree of divorce was journalized on March 4, 2021.

As pertinent here, it disbursed the escrowed sale proceeds of the marital home as follows:

[T]he balance to be divided on the first day of trial was $38,655.93. The Court ordered that $2,811.25 be paid to the GAL; as a result the amount to be divided is $35,844.68. Although it would be expected that the amount would be divided equally between the parties, the Court will order the following offsets:

From Michael's half of the escrowed amount Suzanna is entitled to $2,204.15 for mortgage payments not made by Michael, although he was ordered to do so; and

The amount of $351.36 and $2,711.77 for Michael's failure to divide his bank accounts.

Additionally, there is a lien on Michael's share of the escrow funds from his last attorney, journalized in the Court on July 29, 2020, which will also be paid from his share, if adequate funds are available after offsets to Suzanna are paid. The Court specifically rejects Michael's arguments that Suzanna should be responsible for the entirety of the GAL fees, because the GAL was somehow prejudiced against him.

{¶ 9} Michael now appeals, raising two assignments of error.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL COURT ERRED IN THE DETERMINATION OF PROPERTY

DISTRIBUTION INCLUDING ASSETS AND LIABILITIES BETWEEN THE PARTIES TO

THE PREJUDICE OF APPELLANT.

{¶ 12} Michael challenges the trial court's division of the parties' marital and separate

property, presenting five issues for review.

{¶ 13} In divorce proceedings, R.C. 3105.171(B) requires a 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, in accordance with this section." Upon classifying property

as marital or separate, the trial court has broad discretion in arriving at an equitable and fair

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property division. Bauer v. Bauer, 12th Dist. Warren Nos. CA2019-04-033 and CA2019-

04-040, 2020-Ohio-425, ¶ 22. An appellate court will not reverse a trial court's property

division in a divorce proceeding absent an abuse of discretion. Id. An abuse of discretion

implies that the trial court's decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 14} Separate property is not marital property. R.C. 3105.171(A)(3)(b). Marital

property includes

(ii) All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;

(iii) Except as otherwise provided in this section, all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage.

R.C. 3105.171(A)(3)(b)(ii),(iii).

{¶ 15} Separate property includes

(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;

(iii) Passive income and appreciation acquired from separate property by one spouse during the marriage[.]

R.C. 3105.171(A)(6)(a)(ii),(iii). "The 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). The party

seeking to have a particular asset classified as separate property has the burden of proof,

by a preponderance of evidence, to trace the asset to separate property. Bauer, 2020-

Ohio-425 at ¶ 24.

Allocation of the Marital Home Escrowed Sale Proceeds

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{¶ 16} Michael was granted exclusive occupancy of the marital home on January 29,

2019. The outstanding mortgage balance was then $119,831.66. By all accounts, the

marital home needed remodeling and repairs to make it habitable. Michael testified that the

value of the marital home was "significantly below" the outstanding mortgage balance on

January 31, 2019, that he "invested thousands of dollars and a significant amount of my

time and time of others" in completing the remodeling and repairs, and that Suzanna

contributed nothing. Michael further testified that because of the remodeling and repairs he

made, the marital home passed building and plumbing inspections, he obtained a certificate

of occupancy, and the value of the home greatly increased, ultimately selling for $196,000.

{¶ 17} In his first issue for review, Michael argues that the trial court abused its

discretion in awarding Suzanna one-half of the marital home sale proceeds and in deducting

$2,204.15 from his share of the escrowed sale proceeds for mortgage payments he did not

make. Based upon his testimony concerning the value of the marital home, the owner-

opinion rule, and our opinion in Kohus v. Kohus, 12th Dist. Clermont No. CA2002-07-055,

2003-Ohio-2551, Michael asserts that he should have received 100 percent of the sale

proceeds.

{¶ 18} Ordinarily, testimony as to property value is not competent and admissible

unless it is the professional opinion of an expert. Worthington City Schools Bd. of Edn. v.

Franklin Cty. Bd. of Revision, 140 Ohio St.3d 248, 2014-Ohio-3620, ¶ 18. However, "Ohio

law has long recognized that an owner of either real or personal property is, by virtue of

such ownership, competent to testify as to the market value of the property." Smith v.

Padgett, 32 Ohio St.3d 344, 347 (1987).

{¶ 19} Thus, the owner-opinion rule allows the property owner to testify primarily as

a fact witness about the value of his or her own property without being qualified as an expert

because he or she is presumed to be familiar with it from having purchased or dealt with it.

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Worthington City Schools at ¶ 18-19. However, the owner-opinion rule deals solely with a

property owner's competency to testify about his or her opinion of value; the rule relates to

the admissibility of the owner's testimony, not its weight. Id. at ¶ 19; Remington Clean Fill

L.L.C. v. Milford Exempted Village Schools Bd. of Edn., 12th Dist. Clermont No. CA2020-

12-074, 2021-Ohio-3779, ¶ 35. "[T]here is no requirement that the finder of fact accept [the

owner's value] as the true value of the property." WJJK Investments, Inc. v. Licking Cty.

Bd. of Revision, 76 Ohio St.3d 29, 32, 1996-Ohio-437; Redding v. Cantrell, 12th Dist.

Madison Nos. CA2020-11-020 and CA2020-11-021, 2022-Ohio-567, ¶ 29.

{¶ 20} Unlike the property owner in Kohus, Michael did not provide a dollar figure or

express an opinion as to the value of the marital home when he was granted exclusive

occupancy but simply testified it was "significantly below" the outstanding mortgage

balance. Likewise, Michael did not express an opinion as to the increase in value due to

his efforts and expenses in rehabbing the marital home. No appraisal or other expert

testimony was presented regarding the value of the marital home or the appreciation in its

value due to Michael's efforts. Michael testified he "invested thousands of dollars and a

significant amount of my time and time of others" in completing the remodeling and repairs

but provided no evidence to support his testimony. The only evidence presented by Michael

in support of his testimony consisted of photographs depicting the unhabitable and cluttered

condition of the marital home before he rehabbed it and a photograph showing the

certificate of occupancy, a plumbing inspection tag, and a $140 receipt from the Clermont

County Building Inspection office.

{¶ 21} Although Michael was permitted to testify about the value of the marital home

under the opinion-owner rule, the trial court was free to give whatever weight it wanted to

Michael's testimony and was not required to accept it. Redding, 2022-Ohio-567 at ¶ 31.

Considering the foregoing, the trial court did not abuse its discretion in rejecting Michael's

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testimony regarding the value of the marital home when he was granted exclusive

occupancy of the home and the appreciation in its value due to Michael's efforts and

expenses in rehabbing the home. Furthermore, the trial court did not abuse its discretion

in awarding Suzanna one-half of the marital home sale proceeds.

{¶ 22} We also find that the trial court did not abuse its discretion in deducting

$2,204.15 from Michael's share of the escrowed sale proceeds for mortgage payments he

did not make. The July 19, 2019 agreed entry to sell the marital home, which was signed

by both parties and their counsel, specifically stated, "Effective February 1, 2019, [Michael]

shall pay the mortgage, taxes and insurance on said property." Suzanna's Exhibit 12, the

marital home's mortgage history after Michael was granted exclusive occupancy of the

home, was admitted into evidence and shows unpaid mortgage payments. Michael did not

challenge Exhibit 12 or present evidence he had made the mortgage payments. Michael's

failure to make the mortgage payments reduced the amount of the net sale proceeds.

{¶ 23} We also note Michael argues the trial court erred in awarding Suzanna $5,000

from the escrowed sale proceeds because she is not entitled to it. However, the July 19,

2019 agreed entry specifically stated, "Distribution of the funds held by [Michael's counsel]

as Trustee shall be by agreement or Court order. As of August 1, 2019 the parties agree

each shall receive $5,000.00 from the escrow held by [Michael's counsel]."

{¶ 24} We find no merit to Michael's first issue for review.

The Madison Street Property

{¶ 25} There was a $2,500 note and mortgage to Ohio University Credit Union on

the Madison Street Property and the parties owed an additional $2,000 in delinquent taxes

on the property. Paragraph 3.1 of the parties' stipulations dealt with the property and stated,

in pertinent part, that at closing and following payment of the $2,500 note and real estate

taxes, "the net proceeds shall be equally divided between the parties. To the extent that

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[Michael] has paid taxes on this property, he shall be credited with half of the amount so

paid." The Madison Street Property was eventually sold.

{¶ 26} In his second issue for review, Michael claims that he "settled" the $2,500

note to Ohio University Credit Union and the $2,000 in delinquent real estate taxes prior to

the October 2020 final divorce hearing, and thus, the trial court abused its discretion in

failing to award him $1,250 and $1,000 for those payments, respectively.

{¶ 27} There was no testimony regarding the Madison Street Property during the

divorce hearing. Michael did not submit the closing statement for the sale of the Madison

Street Property at the hearing or any other documentation that he paid the $2,500 note and

the $2,000 delinquent taxes prior to the closing of the sale of the Madison Street Property.

He therefore failed to prove he made those payments. Thus, the trial court did not abuse

its discretion in failing to award Michael one-half of the outstanding note and one-half of the

delinquent taxes.

Michael's Retirement Account

{¶ 28} Michael owns a Federal Thrift Savings Plan ("TSP") retirement account. As

of December 31, 2018, the balance of the account was $62,137.87. Michael testified he

owned the TSP account before he married Suzanna and that he contributed approximately

$6,000 to the account prior to the marriage. In support of his claim, Michael submitted

Exhibit U, the 2018 annual statement for the account. Finding "little to no substantiation of

[the] claim", the trial court found that the TSP account was marital property subject to an

equal division between the parties.

{¶ 29} In his third issue for review, Michael argues that his $6,000 premarital

contribution to the TSP account is his separate property and thus, the trial court abused its

discretion in failing to award him the $6,000 contribution as his separate property. As he

did below, Michael cites Exhibit U in support of his claim.

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{¶ 30} Exhibit U consists of six pages. The first page is not numbered but the next

three pages are numbered consecutively as two through four. All four pages include

Michael's name and the account number. The sixth page is not numbered and is a duplicate

of the first page. Michael relies upon the fifth page in claiming that $6,004.19 is his separate

property. Unlike the first four pages of Exhibit U, the fifth page does not include the account

number, includes instead Michael's social security number, and cannot be identified as

relating to the TSP account. Furthermore, the fifth page is noticeably darker than the other

pages, has a different font and layout, and is identified as "Page 2 of 2." We note that

Suzanna submitted Exhibit 15 as the 2018 annual statement of the TSP account. Exhibit

15 consists of only four pages which are identical to the first four pages of Exhibit U.

{¶ 31} The trial court admitted Exhibit U "with the exception of page 5." "It is wholly

within the trial court's discretion to weigh the testimony, documentation, and credibility of

witnesses." J.R. v. K.R., 8th Dist. Cuyahoga No. 106978, 2019-Ohio-1765, ¶ 27. "A trial

judge has wide discretion when determining the admissibility of such evidence, and will not

be disturbed on appeal absent a clear showing of an abuse of discretion." Id. Michael does

not challenge the trial court's exclusion of page 5 of Exhibit U and we find no abuse of

discretion in its exclusion from evidence. As stated above, the party seeking to have a

particular asset classified as separate property has the burden of proof, by a preponderance

of evidence, to trace the asset to separate property. Bauer, 2020-Ohio-425 at ¶ 24.

Michael's mere conclusory testimony that he contributed approximately $6,000 to the TSP

account prior to the marriage fails to meet his burden of proof.

{¶ 32} The trial court therefore did not abuse its discretion in finding that the TSP

account was marital property and dividing it equally between the parties.

Michael's PNC Bank Accounts

{¶ 33} Michael had two PNC bank accounts, a business account ending in #1517

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with a balance of $702.72 for his business known as Permaculture Guru, LLC, and a

personal account ending in #1936 with a balance of $5,423.50. The trial court ordered that

the balance of these accounts be divided equally between the parties and deducted the

sums of $351.36 and $2,711.77 from Michael's share of the escrowed sale proceeds of the

marital home to provide Suzanna with her one-half distribution from these accounts.

{¶ 34} In his fourth issue for review, Michael argues that the trial court's division of

his PNC business account is contrary to the parties' stipulations. Michael further argues

the trial court abused its discretion in awarding Suzanna one-half of his PNC personal bank

account because Suzanna failed to disclose her bank accounts.

{¶ 35} It is undisputed that Michael is the sole proprietor of Permaculture Guru, LLC.

Paragraph 11 of the parties' stipulations specifically provides that

[Michael] shall receive, free and clear of any interest on behalf of [Suzanna], all right, title, and interest in the businesses known as "Permaculture Guru" and "Phoenix Farm Ohio LLC." [Michael] shall receive all assets and be responsible for all liabilities associated with said businesses. [Michael] shall retain all equity contained therein, including full ownership of all shares of stock, distribution of income and earnings, accounts, equity, equipment, and furnishings.

(Emphasis added.)

{¶ 36} Paragraph 19 of the trial court's judgment entry and divorce decree states, "IT

IS FURTHER ORDERED that [Michael] shall receive free and clear of any interest on behalf

of [Suzanna], all right, title, and interest in the businesses known as "Permaculture Guru"

and "Phoenix Farm Ohio LLC," and incorporates Paragraph 11 of the stipulations above

verbatim. Given the clear stipulation, the trial court erred in awarding Suzanna one-half of

Michael's PNC business account, or $351.36.

{¶ 37} Michael's argument that Suzanna failed to disclose her bank accounts is,

however, not supported by the record. While Suzanna did not submit her bank accounts

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as exhibits, she filed an affidavit of property with the trial court along with her divorce

complaint. The affidavit lists one PNC bank account in her name, two bank accounts in

Michael's name, and two joint bank accounts, and includes the balance in all the accounts.

The trial court did not abuse its discretion in awarding Suzanna one-half of Michael's PNC

personal bank account, or $2,711.77.

Michael's Prior Counsel's Charging Lien

{¶ 38} On June 29, 2020, Randy Blankenship, Michael's then trial counsel, moved

to withdraw as counsel on grounds including Michael's failure and refusal to pay

Blankenship's attorney fees. On July 29, 2020, the magistrate issued an order granting

Blankenship's motion to withdraw. The magistrate's order reflects that the matter came

before the magistrate on July 27, 2020. The order further provided,

The funds being held in escrow by Blankenship Massey & Associates, PLLC shall be transferred to the escrow account of [Suzanna's] counsel, John Daggett. Randy J. Blankenship and Blankenship Massey & Associates, PLLC shall preserve any lien on [Michael's] portion of said funds to secure payment of fees and costs in this matter and said transfer shall not prejudice any such claim to a lien against the escrowed funds.

{¶ 39} In disbursing the escrowed sale proceeds of the marital home, the judgment

entry and decree of divorce provided, "[T]here is a lien on Michael's share of the escrow

funds from his last attorney, journalized in the Court on July 29, 2020, which will also be

paid from his share, if adequate funds are available after offsets to Suzanna are paid."

{¶ 40} In his fifth issue for review, Michael argues the trial court abused its discretion

in subjecting his share of the escrowed sale proceeds to a lien for his prior counsel's

attorney fees. Michael asserts that the trial court and Blankenship failed to follow

recognized procedures and that as a result, he was unable to present witnesses or contest

the merits of the amounts claimed. Michael cites Galloway v. Galloway, 8th Dist. Cuyahoga

No. 103837, 2017-Ohio-87, in support of his argument.

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{¶ 41} A charging lien is "[a]n attorney's lien on a claim that the attorney has helped

the client perfect, as through a judgment or settlement." Black's Law Dictionary 1108 (11th

Ed.2019). In a recent opinion, the Ohio Supreme Court noted, "What was true in 1908 is

true today: Ohio—unlike a majority of states—has no statute addressing how and when an

attorney's charging lien attaches or how it can be enforced. Instead, in Ohio, charging liens

are recognized and enforced under the common law." Kisling, Nestico & Redick, L.L.C. v.

Progressive Max Ins. Co., 158 Ohio St.3d 376, 2020-Ohio-82, ¶ 9.

{¶ 42} The supreme court "has long recognized the viability of charging liens, the

philosophical underpinning of which is that an attorney who has not been paid for his or her

legal services is entitled to receive payment for those services from a judgment or fund that

was created through his or her efforts[.]" Id. at ¶ 10. See also Diehl v. Friester, 37 Ohio St.

473 (1882); Cohen v. Goldberger, 109 Ohio St. 22 (1923). The enforcement of a charging

lien is an equitable remedy. Kisling at ¶ 11. "Generally, four elements must be present for

a charging lien to be enforceable: (1) 'a valid express or implied contract between the

attorney and the client,' (2) 'a fund recovered by the attorney,' (3) 'notice of intent to assert

a lien,' and (4) 'a timely assertion of the lien.'" Id. at ¶ 12. The second element "is a

recognition that the enforcement of a charging lien is an equitable remedy." Id.

{¶ 43} "Ordinarily, the enforceability of a charging lien is dependent on the power of

the court in which the fund was created." Kisling, 2020-Ohio-82 at ¶ 15. "[U]ntil a judgment

is fully executed, the court retains jurisdiction of the subject matter and the parties for the

purpose of hearing any motion affecting such judgment, and if the attorney desires to have

his lien established and declared against such judgment, he may apply to the court for that

purpose." Id. "An attorney's lien is enforceable through the control the courts have of their

judgments and records, and by means of their own process." Id. See also Galloway, 2017-

Ohio-87 at ¶ 9; Fire Protection Resources, Inc. v. Johnson Fire Protection Co., 72 Ohio

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App.3d 205, 209 (6th Dist.1991). "[T]he compensation of the attorneys 'should be worked

out by application to the court holding the fund, and in which the services were rendered.'"

Kisling at ¶ 15, quoting Olds v. Tucker, 35 Ohio St. 581, 584 (1880). "The fact that an

attorney has been discharged from a case does not mean that a charging lien cannot be

enforced. Ohio courts have recognized that a party's former attorney may pursue a

charging lien by intervening in an action or by filing a motion." Kisling at ¶ 16.

{¶ 44} Michael cites Galloway for the proposition that courts should consider the

following factors when determining whether to exercise their authority to enforce a charging

lien:

(1) the right of the client to be heard on the merits; (2) the right of an attorney to invoke the equitable jurisdiction of the courts to protect his fee for services rendered; (3) the elimination of unnecessary and duplicative litigation; (4) the opportunity for the client to obtain counsel to litigate the claim for attorney fees; (5) the propriety of an order as opposed to a judgment; (6) a forum for the presentation of witnesses, if necessary; and (7) the equitable nature of the proceeding.

Galloway at ¶ 11, quoting Fire Protection Resources, Inc. at 210-211. Michael asserts that

the trial court was required but failed to consider the foregoing factors in its consideration

of Blankenship's charging lien; as a result, he was unable to present witnesses or contest

the merits of the amounts claimed.

{¶ 45} As stated above, the matter came before the magistrate on July 27, 2020,

following Blankenship's motion to withdraw as counsel on the ground Michael had refused

to pay attorney fees. If a hearing was held on Blankenship's motion, Michael failed to file a

transcript of the hearing from which the July 29, 2020 magistrate's order arose. In the event

no recording of the proceedings was made, a transcript was unavailable, or a recording was

made but is no longer available for transcription, Michael could have filed an App.R. 9(C)

statement of the evidence. Michael did not file an App.R. 9(C) statement of the evidence.

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Thus, we have no record of what may have occurred that resulted in the magistrate's order

providing that Blankenship had a lien on Michael's share of the marital home escrowed sale

proceeds. We cannot determine whether Blankenship requested such a lien, and if so,

whether Michael objected or assented to the same.

{¶ 46} Furthermore, Civ.R. 53(D)(2)(b) provides in relevant part that "any party may

file a motion with the court to set aside a magistrate's order. The motion shall state the

moving party's reasons with particularity and shall be filed not later than ten days after the

magistrate's order is filed." See Spier v. Spier, 7th Dist. Mahoning No. 05 MA 26, 2006-

Ohio-1289 (a party unsatisfied with a magistrate's order may move to set the order aside).

Ohio courts, including this court, have held that if a party does not move to set aside a

magistrate's order, that party has waived a challenge to that order on appeal. Ganaway v.

Ganaway, 12th Dist. Warren No. CA2016-05-039, 2017-Ohio-1009, ¶ 17. Here, Michael

did not move to set aside the magistrate's July 29, 2020 order as required under Civ.R.

53(D)(2)(b).

{¶ 47} Given the lack of a record as to what occurred before the magistrate on July

27, 2020, and Michael's failure to file a motion to set aside the magistrate's July 29, 2020

order, we are unable to review the trial court's compliance with the factors set forth in

Galloway and Fire Protection Resources, Inc. Thus, we must presume the regularity of the

proceedings below and affirm the trial court's decision subjecting Michael's share of the

escrowed sale proceeds to Blankenship's charging lien. See Mallikarjunaiah v. Shankar,

12th Dist. Warren Nos. CA2019-11-122 and CA2019-11-123, 2020-Ohio-4508.

{¶ 48} To the extent the trial court erred in awarding $351.36 to Suzanne from

Michael's PNC business account, Michael's first assignment of error is sustained in part.

As to all other issues, the first assignment of error is overruled.

{¶ 49} Assignment of Error No. 2:

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{¶ 50} THE TRIAL COURT ERRED IN THE DETERMINATION THAT APPELLEE

SHOULD BE THE DESIGNATED RESIDENTIAL PARENT/LEGAL CUSTODIAN OF THE

PARTIES' MINOR CHILD, VIVIAN.

{¶ 51} Michael argues the trial court erred when it did not order shared parenting and

instead designated Suzanna the residential parent and legal custodian of Vivian.2

Specifically, Michael argues the trial court failed to make findings of fact and conclusions of

law to support its rejection of the parties' shared parenting plans as required by R.C.

3109.04(D)(1)(a)(ii). Michael further argues the trial court erred in designating Suzanna the

residential parent and legal custodian of Vivian because the factors set forth in R.C.

3109.04(F) favor shared parenting of Vivian.

{¶ 52} The parties each filed a proposed shared parenting plan in April 2020. During

the October 2020 divorce hearing, Suzanna testified she wanted to be named the

residential parent and legal custodian of the children and that shared parenting was now

simply a second option. By contrast, Michael testified he was seeking shared parenting.

However, should the trial court decline to order shared parenting, he wanted to be named

the residential parent and legal custodian of Vivian.

{¶ 53} A trial court has broad discretion in allocating parental rights and

responsibilities and its decision will not be reversed absent an abuse of discretion. Seng v.

Seng, 12th Dist. Clermont No. CA2007-12-120, 2008-Ohio-6758, ¶ 16. "The discretion 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 has on the lives of the

parties concerned." Grover v. Dourson, 12th Dist. Preble No. CA2018-07-007, 2019-Ohio-

2. As stated above, the trial court designated Suzanna the residential parent and legal custodian of the parties' three children, not just Vivian. However, Michael's second assignment of error only challenges the trial court's allocation of parental rights and responsibilities regarding Vivian. - 16 - Clermont CA2021-09-055

2495, ¶ 15. So long as there is competent and credible evidence in the record to support

the custody determination, the trial court's decision will stand because the court has had

the best opportunity "to view the demeanor, attitude, and credibility of each witness," which

may not easily translate to the written record. Seng at ¶ 16; Davis v. Flickinger, 77 Ohio

St.3d 415, 418, 1997-Ohio-260.

{¶ 54} R.C. 3109.04 governs a trial court's allocation of parental rights and

responsibilities. The court is further guided by the statute when it chooses to designate one

parent as the residential parent and legal custodian of a child, or instead delegates those

responsibilities to both parents under a shared parenting plan. Seng at ¶ 17. Of paramount

concern in any custody determination is the requirement that the trial court's decision be

made in the child's best interest. Id.

{¶ 55} To determine what is in the best interest of a child, R.C. 3109.04(F)(1)

requires a court to consider all relevant factors. Ackley v. Haney, 12th Dist. Fayette No.

CA2021-07-017, 2022-Ohio-2382, ¶ 15. Factors enumerated by the statute include, but are

not limited to: (1) the wishes of the parents; (2) the child's interaction and interrelationship

with her parents, siblings, and other persons who may significantly affect the child's best

interest; (3) the child's adjustment to home, school, and community; (4) the mental and

physical health of all persons involved; and (5) the likelihood that the caregiver would honor

and facilitate visitation and parenting time. Id.

{¶ 56} "When determining whether shared parenting is in a child's best interest, the

trial court must consider the additional factors set forth in R.C. 3109.04(F)(2)." Chaney v.

Chaney, 12th Dist. Warren No. CA2021-09-087, 2022-Ohio-1442, ¶ 37. These factors are:

(1) the ability of the parents to cooperate and make decisions jointly, with respect to the

child; (2) the ability of each parent to encourage the sharing of love, affection, and contact

between the child and the other parent; (3) any history or potential for abuse, other domestic

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violence, or parental kidnapping by either parent; (4) the geographic proximity of the parents

to one another; (5) and the recommendation of the guardian ad litem, if the child has a

guardian ad litem. R.C. 3109.04(F)(2)(a) thru (e). "While no factor in R.C. 3109.04(F)(2) is

dispositive, effective communication and cooperation between the parties is paramount in

successful shared parenting." Seng, 2008-Ohio-6758 at ¶ 21.

{¶ 57} Michael argues the trial court failed to make findings of fact and conclusions

of law to support its rejection of the parties' proposed shared parenting plans as required

by R.C. 3109.04(D)(1)(a)(ii).

{¶ 58} R.C. 3109.04(D)(1)(a)(ii) sets forth the procedure a trial court must follow

when both parties submit their own shared parenting plan. The approval or rejection of a

shared parenting plan under R.C. 3109.04(D)(1)(a)(ii) is discretionary with the trial court,

and the court will not approve a shared parenting plan unless it determines that the plan is

in the best interest of the child. R.C. 3109.04(D)(1)(b); Naegel v. Naegel, 12th Dist.

Clermont No. CA93-06-041, 1994 Ohio App. LEXIS 326, *9 (Jan. 31, 1994). However,

whether the trial court approves a shared parenting plan or refuses to order shared

parenting, R.C. 3109.04(D)(1)(a)(ii) requires the trial court to enter findings of fact and

conclusions of law as to the reasons for approving or rejecting a shared parenting plan.

"The requirement does not mean that the trial court must provide a detailed analysis.

Instead, the court may substantially comply with the statute if the reasons for approval or

denial of the shared parenting plan are apparent from the record." Wolf-Sabatino v.

Sabatino, 10th Dist. Franklin No. 10AP-1161, 2011-Ohio-6819, ¶ 85.

{¶ 59} In its January 8, 2021 judgment entry, the trial court declined to order shared

parenting because

The court, upon review of the testimony of the parties and witnesses and the report and subsequent testimony of the GAL, does not find that this matter is even close to a case that would

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be appropriate for shared parenting. Michael's hostility toward Suzanna and his unbending attitude toward children who are in a confusing and difficult time, illustrates his lack of understanding of the needs for adolescents. Michael's action of keeping Vivian from her mother for [an] extended period of time, because he viewed difficulties with "hygiene," etc. as a valid justification without seeking court intervention, makes it clear to the Court that he disrespects the court as well as the mother of his children. His view is that he alone can decide what is in [the] children's best interests.

The court grants sole custody and residential parent status to Suzanna.

{¶ 60} The trial court's rejection of the parties' shared parenting plans was preceded

by the court's consideration and discussion of the R.C. 3109.04(F)(1) factors. As discussed

below, there was competent, credible evidence to support the trial court's conclusion that

shared parenting is not in Vivian's best interest, and the trial court's reasons for denying

shared parenting are apparent from the record. Thus, the trial court substantially complied

with R.C. 3109.04(D)(1)(a)(ii). Naegel, 1994 Ohio App. LEXIS 326 at *10. We find no merit

to Michael's first issue for review.

{¶ 61} Michael further argues the trial court erred in designating Suzanna the

residential parent and legal custodian of Vivian because the factors set forth in R.C.

3109.04(F) favor granting shared parenting of Vivian. In support of his argument, Michael

emphasizes his close and loving relationship with Vivian, the parties' cooperation and ability

to compromise regarding the children's education and health during the parties' marriage,

the sons' poor school performance while under Suzanna's care, and the fact the GAL

consistently ignored his concerns regarding Vivian and clearly acted in Suzanna's best

interest, and not those of the children.

{¶ 62} In rejecting shared parenting and designating Suzanna the residential parent

and legal custodian of Vivian, the trial court considered and discussed each of the ten R.C.

3109.04(F)(1) best-interest factors in light of the evidence presented at the divorce hearing.

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The trial court did not refer to the R.C. 3109.04(F)(2) factors in determining whether shared

parenting was in Vivian's best interest. However, much of the trial court's discussion of the

R.C. 3109.04(F)(1) factors applies to the R.C. 3109.04(F)(2) factors. As stated above, the

R.C. 3109.04(F)(2) factors include the parents' ability to cooperate and make joint decisions

regarding the child, each parent's ability to encourage the sharing of love, affection, and

contact between the child and the other parent, any history of parental kidnapping, the

geographic proximity of the parents to each other, and the recommendations of the guardian

ad litem. Testimony indicates that Suzanna lives in Goshen in Clermont County; Michael

lives in Brown County. Throughout its discussion, the trial court referred to the GAL's reports

and testimony.

{¶ 63} The GAL's investigation included meeting with the children, Suzanna, and

Michael, a phone conference with the therapist then seeing the children and Suzanna, and

discussion with a family friend. The GAL memorialized her observations and

recommendations into two reports. Ultimately, she recommended that shared parenting

was not appropriate in this case and that Suzanna should be granted sole legal and

residential custody of the children.

{¶ 64} The GAL indicated that shared parenting was not a viable option due to the

parties' opposing belief systems regarding medical treatment, the lack of trust between

them, Michael's relentless criticism of Suzanna and his continued insistence she is an

inadequate provider, and the parties' tendency to behave in spiteful ways at the expense of

their children's well-being. The GAL stated that given the dysfunction in the parties'

relationship and communication, shared parenting would result in continued conflict and

contention and would be harmful to the children. The GAL recommended granting sole

custody to Suzanna because she provides more emotional stability and healthier examples

for the children who are much bonded to her and feel safer in her care.

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{¶ 65} In her reports and during the divorce hearing, the GAL described specific

concerns she had regarding shared parenting. Specifically, the GAL noted that Michael

presents as a principled and hyper critical individual who believes Suzanna has alienated

all three children against him, who blames and regularly disparages Suzanna, including in

the presence of the GAL and the children, and who would benefit from engaging in individual

therapy and developing more empathy for the children's needs. In particular, she cited an

incident during which Michael photographed Vivian while she was bathing in an attempt to

prove Suzanna had inflicted a bruise on Vivian. The GAL noted that Michael's "need to

prove what he feels are [Suzanna's] shortcomings overwhelmed his ability to feel any

empathy for his daughter on that occasion."

{¶ 66} The GAL further stated that though he may have believed his actions were

warranted, Michael's withholding of Vivian from the custody of Suzanna for six weeks not

only confused and emotionally damaged Vivian, it also hurt Michael's relationship with

Vivian. The GAL underscored her statement by noting that after she was returned to

Suzanna, Vivian was reticent to go back to Michael's house for his parenting time and in

fact panicked and cried hysterically when Michael appeared at a physician office where

Vivian had a medical appointment.

{¶ 67} The GAL testified that the children were unusually smart and that their

academic struggles were most likely due to the divorce. The GAL stated that once the

children can settle into a routine after the divorce is finalized, and as long as they engage

in therapy, she had no concerns about their future academic performance or emotional

health. The GAL indicated she had no concerns about Suzanna's mental health or ability

to parent. Although the GAL did not recommend shared parenting, she testified that Michael

genuinely loves his children, that Vivian is comfortable with Michael, and that he and Vivian

have a good and very loving relationship.

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{¶ 68} Michael testified he filed an emergency motion for change of custody of Vivian

the day after the 2020 Father's Day in part because he believed she had a urinary tract

infection. Michael admitted that upon finding Vivian did not have such infection, he

nevertheless kept her. Michael testified he was the better suited parent to follow and

enforce court orders; by contrast, Suzanna had not consistently followed the parenting time

schedule. With the exception of the withholding incident, Michael testified he had always

complied with court-ordered parenting time. Michael disputed much of the contents of the

GAL's reports and asserted that two emergency motions filed by the GAL during the divorce

proceedings interfered with his ability to work things out with Suzanna.3 Michael opined

that the GAL's emergency motions greatly harmed the family unit and his relationship with

the children and further damaged the capacity for shared parenting: "this contentious

divorce has destroyed the family. And I feel very strongly that the [GAL] contributed

significantly to the destruction of my family with reducing parenting time and unfounded

motions repeatedly." Michael stated he loves his children very much, misses his sons

greatly, and lamented "the systemic alienation of [his] children."

{¶ 69} Suzanna testified about the strained relationship between Michael and their

sons and how in particular, Michael's relationship with Ian greatly deteriorated following the

withholding incident as Ian was afraid of going to Michael's home and being kept there.

Following the withholding incident, Suzanna described how, upon seeing Michael's car on

the parking lot of the physician's office, Vivian became upset, screaming hysterically and

refusing to leave Suzanna's car. Once in the medical office, Vivian continued to cry and hid

3. The GAL filed the emergency motions in August 2019 and December 2019, respectively. Based upon Vivian's statements to the GAL, the first motion sought supervision of Michael's parenting time and a psychological evaluation of Michael. The parties' parenting time was modified, Michael underwent a psychological evaluation, and the GAL withdrew the motion. The second motion sought supervision of Michael's parenting time following a physical altercation between Michael and Ian that resulted in Ian and Vivian being physically injured. Following an in camera interview with Ian, the magistrate denied the motion. - 22 - Clermont CA2021-09-055

behind a chair. Vivian eventually calmed down after she and Suzanna went into a room

without Michael.

{¶ 70} Suzanna testified she does not trust Michael to cooperate to make joint

decisions regarding the children, to encourage the sharing of love and affection between

the parties and the children, to cooperate and communicate with her regarding the children,

and to encourage and honor parenting time. Suzanna testified that although the parties

can occasionally compromise on decisions, they do not see eye to eye regarding

vaccinations as Michael generally distrusts doctors and "Big Pharma." Suzanna testified

how following the closing of the children's schools due to COVID-19, Michael refused to

change the pickup and exchange schedule, forcing her to change her work hours and miss

a weekly meeting. The record indicates that Michael was unemployed during the divorce

proceedings. Suzanna also testified that after Ruppert stopped visiting Michael in the spring

of 2019, she could not and did not force him to see his father as it would have damaged her

relationship with Ruppert. Suzanna explained that at the time, Michael would videotape

every interaction between the parties and accuse her of "things" in front of the children and

her church congregation. As a result, every interaction was stressful and traumatic for her

and the children.

{¶ 71} In reaching its custody determination, the trial court noted: the parties' inability

to get along; Michael's hostility toward Suzanna and his unbending attitude toward the

children; Michael withholding custody of Vivian from Suzanna for six weeks in violation of a

court order for which he was found in contempt; Vivian's emotional outburst in the

physician's office which occurred shortly after Michael returned Vivian to Suzanna's care;

the fact Vivian is troubled by the conflict between her parents; that Michael now lives in

Brown County, that there was no assurance the children could continue to attend their

school if Michael was designated residential parent, and that changing schools would be

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harmful to the children; the GAL's concerns about Michael's mental health; and that Michael

blames both Suzanna and the GAL for any difficulties he has with his parenting time,

considering himself the aggrieved party.

{¶ 72} The evidence established that Vivian is loved by both parents and has a loving

and close relationship with both.

{¶ 73} While testimony at the hearing revealed that Suzanna could have done more

to enforce visitation between Michael and the parties' sons, there is no evidence Suzanna

has willfully denied Michael his parenting time, including with the sons. By contrast, Michael

willfully denied Suzanna parenting time with Vivian when he withheld Vivian from her mother

for six weeks. Michael's action in turn negatively impacted his relationship with Vivian and

temporarily caused unnecessary emotional issues for Vivian. Noticeably, Michael does not

address how withholding Vivian from Suzanna for six weeks impacted Vivian.

{¶ 74} While the parties' testimony indicate some infrequent instances where they

made joint decisions regarding the children's care and health during their marriage, the

record plainly shows they are unable to cooperate and communicate with one another

concerning the children's welfare during the divorce proceedings. Successful shared

parenting requires a strong commitment to cooperate and a capacity to engage in the

cooperation required. Seng, 2008-Ohio-6758 at ¶ 21. Plainly, these two elements are

missing here.

{¶ 75} The fact that Michael clearly loves Vivian and wants to be with her does not

change this decision. This is because, as noted above, the primary concern is Vivian's best

interest, not whether Michael loves, cares for, and wants to be with Vivian. See Hall v. Hall,

12th Dist. Butler No. CA2018-05-091, 2019-Ohio-81, ¶ 26 (a father's "wishes about the care

and control of his children * * * should not be placed above the children's best interests").

"To hold otherwise would render the best-interest factors set forth in R.C. 3109.04(F)(1)

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and R.C. 3109.04(F)(2) meaningless to a domestic relations court when awarding parental

rights and responsibilities under R.C. 3109.04." Vaughn v. Vaughn, 12th Dist. Warren No.

CA2021-08-078, 2022-Ohio-1805, ¶ 45. "That is not what the law plainly states." Id.

{¶ 76} After carefully reviewing the record and considering the foregoing, we find that

the trial court weighed all appropriate R.C. 3109.04(F) factors in reaching its custody

decision. The trial court did not abuse its discretion in declining to adopt a shared parenting

plan and in designating Suzanna as the residential parent and legal custodian of Vivian.

{¶ 77} Michael's second assignment of error is overruled.

{¶ 78} Judgment affirmed in part, reversed in part, and remanded.

HENDRICKSON and PIPER, JJ., concur.

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