[Cite as A.E. v. J.E.,
2024-Ohio-1785.]
Court of Appeals of Ohio, Eighth District
County of Cuyahoga
Nailah K. Byrd, Clerk of Courts
A.E.
Appellee COA No. LOWER COURT NO.
112847 DR-19-377679
-vs- DOMESTIC RELATIONS
J.E.
Appellant Motion No. 574091
Date 05/03/2024
Journal Entry
Sua sponte, this court reconsiders its decision in this case. The original decision
in this appeal, A.E. v. J.E., 8th Dist. Cuyahoga No. 112847, 2024-Ohio-1585,
released by this court on April 25, 2024, is hereby vacated and substituted with the
journal entry and opinion released this same date.
Presiding Judge Eileen A. Gallagher, Concurs
Judge Emanuella D. Groves, Concurs
_________________________
Eileen T. Gallagher, Judge
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
A.E., :
Plaintiff-Appellee, :
No. 112847
v. :
J.E., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: May 3, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-19-377697
Appearances:
Stafford Law Co., L.P.A., Joseph G. Stafford, Nicole Cruz,
and Kelley R. Tauring, for appellee.
Thurman and Associates, L.L.C., Adam J. Thurman, and
Erik B. Quattro, for appellant.
ON SUA SPONTE RECONSIDERATION1
EILEEN T. GALLAGHER, J.:
Defendant-appellant, J.E. (“Husband”), appeals a judgment entry of
divorce and claims the following errors:
1. The trial court erred and abused its discretion when it determined
that appellant committed financial misconduct and found that
appellant wrongfully dissipated $419,028.50 “that this court is aware
of.”
2. The trial court erred and abused its discretion by ordering appellant
to pay $10,600.00 per month as spousal support and $3,824.00 as
child support plus fifty percent (50%) of all bonuses; deferred
compensation; incentive payments; and all employment
enhancements.
3. The trial court erred and abused its discretion when it substituted
its own value for the marital residence, which was not based upon facts
or evidence presented at trial.
4. The trial court erred and abused its discretion in dividing appellant’s
income twice by ordering appellant to pay temporary support and then
dividing the funds appellant had remaining in counsel for appellee’s
IOLTA account after the payment of his support.
5. The trial court erred and abused its discretion in ordering appellant
to pay $110,000.00 in attorney fees to appellees’ counsel.
6. The trial court erred and abused its discretion when it determined
that appellee’s non-descript loan from her parents was marital
property where the funds were used for the higher education of the
parties’ emancipated children.
7. The trial court erred and abused its discretion in granting appellee’s
ownership of an insurance policy that was no longer in existence.
1 Sua sponte, the original decision in this appeal, A.E. v. J.E., 8th Dist. Cuyahoga
No. 112847, 2024-Ohio-1585, released on April 25, 2024, is hereby vacated. This opinion,
issued upon reconsideration, is the court's journalized decision in this appeal. See App.R.
22(C); see also S.Ct.Prac.R. 7.01.
8. The trial court erred and abused its discretion by not adopting
appellant’s proposed shared parenting plan and reducing appellant’s
parenting time.
9. The trial court failed to account for the funds missing from Stafford
Law’s IOLTA account.
10. The trial court erred and abused its discretion by leaving
restraining orders in effect and not dismissing third-party defendant.
We reverse the trial court’s judgment and remand the case to the trial
court for further proceedings.
I. Facts and Procedural History
A.E. (“Wife”) and Husband were married on April 26, 1997, and they
had four children born as issue of the marriage. The parties separated on July 8,
2019, and Wife filed a complaint for divorce three weeks later on July 24, 2019. Wife
also filed a motion for temporary support with affidavit, and Husband filed a counter
affidavit to the motion for temporary support outlining all his sources of income.
According to Husband’s counter affidavit, Husband’s income is composed of a base
salary plus sales incentive payments, direct cash deferral payments, contributions
to his nonqualified deferred compensation plan, restricted stock units (“RSUs”), and
other miscellaneous additional compensation (collectively referred to as “bonus
income”).
Husband’s counter affidavit to Wife’s motion for temporary support
shows that Husband received a base salary of $251,326.40 in 2019. The affidavit
also shows that he received nearly identical base salaries from 2015 through 2018.
The bulk of Husband’s compensation was comprised of bonus income. Husband’s
counter affidavit states that cash incentive payments are paid in February of each
year, if they are awarded. Deferred compensation payments are also disbursed in
February, but only one third of the payment is actually made in February and the
remainder is paid in one-third installments each February for the next three years.
RSUs, if awarded, are granted in February or March of each year and vest three years
later.
Based on the parties’ affidavits, the trial court issued a temporary
support order on November 18, 2019, finding that Wife had a gross income of $0.00,
and Husband had a gross income of $876,423.56 through his employment as an
investment banker at Fifth Third Bancorp. Pursuant to the November 18, 2019
temporary support order, Husband was required to pay $8,000 per month in
temporary spousal support; $3,115.13 per month in temporary child support; the
mortgage payment on the marital residence in the amount of $842.13 per month;
all the expenses associated with the parties’ New York vacation home totaling
$2,300 per month; and $500 per month toward an “existing undetermined
arrearage” of support. Altogether, Husband was ordered to pay a total of $14,757.26
per month in child and spousal support.
Two months after issuing the temporary support order, on January 22,
2020, the trial court restrained Husband’s employer, Fifth Third Bancorp, from
releasing or disbursing “any bonuses, distributions, payroll incentives, monetary
awards, or any funds over and above his base pay.” (Jan. 22, 2020, judgment entry.)
As a result, Husband was ordered to pay Wife a total of $177,000.002 per year in
support from his pre-tax, base salary of $251,326.40. After subtracting Husband’s
support obligation of $177,000 from his base salary of $251,326.40, Husband was
left with $74,326.40 with which to pay his own living expenses and the entirety of
the parties’ joint income tax liability.
In 2022, Husband owed $51,282.00 in federal tax liability for the 2021
tax year. (Defendant’s exhibit G; tr. 82.)3 In 2023, Husband’s 2022 tax return
indicated that he owed $77,467.00 in federal income tax liability due to his inability
to make all of the quarterly, estimated tax payments. (Def. exhibit H; tr. 41, 47, 81,
82.) Payments of estimated taxes are necessary because Husband’s employer
cannot withhold more than 22% in taxes on his “supplemental income” as defined
by 26 C.F.R. 31.3402(g)-1. All Husband’s bonus income is included in the definition
of “supplemental income” under 26 C.F.R. 31.3402(g), and the failure to make
quarterly estimated tax payments results in penalties and interest on the taxpayer’s
tax liability. See 26 U.S.C. 6654.
The trial court issued similar restraining orders against Fifth Third
Bancorp to prevent the release and distribution of Husband’s “non-discretionary
bonuses … including but not limited to deferred compensation and/or restricted
stock units” in 2021, 2022, and 2023. Husband filed several motions to dissolve the
restraining orders and to release the funds in order to pay his support obligations
2 $14,750 x 12 months = $177,000.
3 All citations to the transcript refer to the May 15, 2023 trial transcript.
and to make quarterly estimated income tax payments. Husband’s motion, filed
February 2, 2023, states:
[T]his court restrained all Defendant’s bonuses in 2020 and 2021,
leaving him to receive only his set salary, yet expects Defendant to pay
temporary spousal support, child support, and all expenses the family
established based on his salary and his bonuses. Then, when
Defendant was unable to meet all his obligations because the Court
restrained over half of his income, this Court ordered that his bonuses
be held by Plaintiff’s counsel, so that Plaintiff’s counsel could then
disperse the monies to ODJFS-OCSS [“CSEA”]. This court ordered that
Defendant be responsible for spousal support, child support, expenses,
etc., then restricted his ability to follow this Court’s orders.
The court originally ordered that Husband’s bonus income be held in
his lawyer’s IOLTA account, and his monthly spousal and child support obligations
were to be paid to the child support enforcement agency (“CSEA”) from that
account. Husband’s lawyer later withdrew from representation, and Wife filed a
motion to transfer the funds to her own lawyer’s IOLTA account. The trial court
denied Wife’s motion but ordered Husband to open an escrow account at Fifth Third
Bank to be managed by an escrow agent. Husband’s former attorney transferred the
funds from her IOLTA account to the new escrow account at Fifth Third Bank.
In February 2022, the trial court ordered Fifth Third Bank to transfer
Husband’s bonus income to Wife’s counsel, to be held in his IOLTA account. The
court further ordered Wife’s counsel to release the sum of $11,225.13 from the
IOLTA account each month and apply it to Husband’s monthly temporary support
obligation.
The case proceeded to trial before a magistrate in February and
October 2021, and the magistrate issued a decision in April 2022. Both parties filed
objections to the magistrate’s decision. The trial court sustained Husband’s second
objection and found that the magistrate had imposed unreasonable time restrictions
on the presentation of evidence that unfairly prejudiced Husband. As a result, the
trial court ordered a new trial, which took place on May 15, 2023.
Meanwhile, in December 2022, Wife discovered that CSEA had
refunded money to Husband that had been paid as child support from his restrained
bonus income. Wife filed a motion for direct payment and disgorgement of funds,
claiming CSEA improperly refunded support payments to Husband and asked that
Husband be ordered to immediately return the refunded payments in the amount
of $30,388.23 to her lawyer’s IOLTA account. Husband opposed the motion,
arguing that the refunds were made because (1) one of the parties’ children
emancipated several months earlier but CSEA continued to collect $1,500 per
month after the child’s emancipation, (2) CSEA collected double payments several
times, and (3) the $30,388.23 represented an overpayment of child support. The
trial court granted Wife’s motion and ordered Husband to remit payment of the
$30,388.23 to Wife’s counsel within seven days of the journalization of the court’s
judgment entry. (Dec. 15, 2022, judgment entry.) Husband complied. (See
plaintiff’s exhibit No. 59, p. 129.)
At the second trial on May 15, 2023, Husband testified about his base
salary and bonus income. He also presented evidence demonstrating that, other
than his salary, none of the payments are fixed or guaranteed. He presented
evidence showing that his income fluctuates from year to year.
The parties also presented evidence relative to marital property and to
the allocation of parental rights with respect to the parties only remaining minor
child. At the conclusion of the evidence, the trial court ruled that Wife shall retain
the marital home located on Avalon Drive in Rocky River, Ohio, free and clear from
any claim by Husband. The court also ordered that Wife would retain all items of
personal property in the home
The court determined that the marital home was valued at
$1,150,000.00. The property was encumbered by mortgage balance of $178,860.37
as of March 11, 2023, and there were outstanding property taxes due and owing in
the amount of $4,467.24. The court concluded there was $966,672.39 in equity in
the property and divided the equity equally between the parties. Wife was charged
with paying off the mortgage and the outstanding real estate taxes.
The parties owned a second home on Shadyside Road, in Clymer, New
York. The parties entered into an agreed judgment entry wherein they to sell the
New York property, and the trial court ordered the parties to split the proceeds from
the sale equally.
The trial court divided the parties’ personal property, bank accounts,
retirement assets, investment accounts, and automobiles. The trial court also
determined that Wife shall be the owner and sole beneficiary of Husband’s
Northwestern Mutual life insurance policy with a total death benefit of $500,000.
The court ordered Husband to pay the premiums on the life insurance policy until
he no longer has a support or property division obligation.
The trial court designated Wife the residential parent and legal
custodian of the parties’ only child who remained a minor at the time of the divorce.
The court ordered Husband to pay child support in the amount of $3,796.83 per
month, plus cash medical support in the amount of $27.17 per month for a total
child-support obligation of $3,824.00 per month.
The trial court ordered Husband to pay Wife spousal support in the
amount of $10,600.00 per month, effective June 1, 2023, indefinitely. In addition,
Husband was ordered to pay Wife 50% of all bonus income in addition to the
monthly spousal support, indefinitely.
The trial court found that Husband held Wife “economically hostage”
by failing to pay his temporary support obligations under the November 18, 2019
temporary support order, and that he engaged in financial misconduct. In its
judgment entry of divorce, the court stated:
The Court finds that Defendant engaged in gross financial misconduct
including the dissipation, destruction, concealment and fraudulent
disposition of assets. First, Defendant failed to disclose the proper
values of his assets in his Financial Disclosure Statements. In addition,
Defendant failed to disclose that he liquidated restricted stock units in
the sum of $326,238.90. Defendant also transferred title of his vehicle
into the name of the parties’ son and used $27,000.00 of marital funds
to pay the debt associated with the vehicle prior to transfer. Further,
Defendant dissipated nearly $66,000.00 from his Chase checking
account prior to the commencement of the re-trial. In all, Defendant
wrongfully dissipated approximately $419,028.50 of marital funds
without the knowledge or permission of Plaintiff or this Court.
This case has been pending since July 2019. At the May 15, 2023 re-trial, nearly four (4) years after the commencement of this action,
Defendant finally admitted after rigorous cross-examination that he
had been liquidating restricted stock units provided to him by his
employer every single year this case has been pending. Pursuant to his
testimony, the restricted stock units awarded to him by his employer
vested over a term of three (3) years. As such, all of the restricted stock
units liquidated by Defendant during the term of these proceedings
were marital property subject to division by this Court. Defendant
further admitted that he did not divide any of the proceeds from the
liquidation of the restricted stock units with Plaintiff. In fact, until the
re-trial, Plaintiff, and the Court, was [sic] completely unaware that
Defendant had been unilaterally liquidating the restricted stocks since
2019. Defendant did not provide any accounting or justification for the
use of the proceeds from the sale of the restricted stocks. It is clear from
Defendant’s testimony that he never intended to disclose to Plaintiff
that he liquidated the restricted stock because it was “my money,” a
theme that echoed throughout the entirety of the divorce proceedings.
Defendant also did not provide any rationale or justification for
transferring title of his vehicle to his son, or the nearly $70,000.00
reduction in his Chase checking account just before the May 15, 2023
re-trial.
In total, Defendant wrongfully dissipated approximately $419,028.50
of marital funds, that the Court is aware of, during the pendency of the
divorce. Plaintiff’s one-half interest in these marital funds equals
$209,514.25. Defendant’s failure to disclose assets and his purposeful
and repeated dissipation of those assets, not only violated this Court’s
orders but caused economic harm to Plaintiff and their children.
(Judgment entry of divorce p. 9.)
The court found that the economic misconduct justified a distributive
award to Wife in the amount of $500,000 and ordered Wife to receive Husband’s
equity interest of $483,336.19 in the marital residence as partial satisfaction of the
distributive award. To complete the award, the court also ordered Husband to pay
Wife the sum of $16,663.81 within seven days of the journalization of the judgment
entry of divorce.
Finally, the court ordered Husband to pay Wife’s attorney fees in the
amount of $110,000.00, and that all restraining orders previously issued by the
court “shall not be released until all property has been divided” in accordance with
the judgment entry of divorce.
Husband now appeals the trial court’s judgment.
II. Law and Analysis
A. Standard of Review
Domestic relations courts must have discretion to do what is equitable
upon the facts and circumstances of each divorce case. Booth v. Booth, 44 Ohio
St.3d 142, 144,
541 N.E.2d 1028 (1989). We, therefore, review a trial court’s
determination in domestic relations cases for an abuse of discretion. Holcomb v.
Holcomb,
44 Ohio St.3d 128, 130,
541 N.E.2d 597 (1989).
An abuse of discretion occurs when a court exercises its judgment in
an unwarranted way regarding a matter over which it has discretionary authority.
Johnson v. Abdullah, 166 Ohio St.3d 427,
2021-Ohio-3304,
187 N.E.3d 463, ¶ 35. A
court abuses its discretion “when a legal rule entrusts a decision to a judge’s
discretion and the judge’s exercise of that discretion is outside of the legally
permissible range of choices.” State v. Hackett,
164 Ohio St.3d 74, 2020-Ohio-
6699,
172 N.E.3d 75, ¶ 19. The term abuse of discretion “implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,
5
Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
There is no abuse of discretion where the record contains competent,
credible evidence to support the trial court’s decision. Trolli v. Trolli, 8th Dist.
Cuyahoga No. 101980, 2015-Ohio-4487, ¶ 29, citing Kapadia v. Kapadia, 8th Dist.
Cuyahoga No. 94456,
2011-Ohio-2255, ¶ 24. When applying the abuse-of-discretion
standard, a reviewing court may not substitute its judgment for that of the trial
court. Vannucci v. Schneider,
2018-Ohio-1294,
110 N.E.3d 716, ¶ 22 (8th Dist.).
B. Financial Misconduct
In the first assignment of error, Husband argues the trial court erred
and abused its discretion in determining that he committed financial misconduct.
Husband argues the trial court erroneously determined that he dissipated
$419,028.50 by (1) failing to disclose the liquidation of RSUs, (2) improperly using
marital funds to pay off an automobile that he transferred to his son, and (3)
squandering funds from his Chase checking account. As previously stated, the court
awarded Wife a distributive award in the amount of $500,000 for this alleged
misconduct.
R.C. 3105.171(E)(4) provides that if a spouse has engaged in financial
misconduct, including but not limited to the dissipation, destruction, concealment,
or fraudulent disposition of assets, the court may compensate the offended spouse
with a distributive award or with a greater award of marital property. The
complaining spouse bears the burden of proving the financial misconduct. Victor v.
Kaplan, 2020-Ohio-3116,
155 N.E.3d 110, ¶ 138 (8th Dist.).
“A spouse commits ‘financial misconduct’ where he or she engages in
intentional conduct by which he or she either profits from the misconduct or
intentionally defeats the other spouse’s interest in marital assets.” Id., citing
Rodgers v. Rodgers, 8th Dist. Cuyahoga No. 105095,
2017-Ohio-7886, ¶ 30; Best v.
Best, 10th Dist. Franklin No. 11AP-239,
2011-Ohio-6668, ¶ 17 (stating that financial
misconduct occurs when one spouse intentionally interferes with the other spouse’s
property rights).
1. Liquidation of RSUs
The trial court ruled that Husband failed to disclose the liquidation of
his RSUs. However, Husband identified the RSUs in his counter affidavit to Wife’s
motion for temporary support in August 2019, and they were listed on plaintiff’s
exhibit No. 48, which counsel received shortly before the first trial in 2021. The last
page of exhibit No. 48 shows the quantity of RSUs vesting each year as well as the
February dates on which they vested or were due to vest. The RSUs were also listed
in plaintiff’s exhibit No. 66(A), which consists of Fidelity Investments account
records listing all of Husband’s RSU grants and values.
Plaintiff’s exhibit No. 48 includes a letter from Fifth Third Bancorp’s
lawyer in response to subpoenas from Wife’s lawyer. The email shows that Wife
requested records regarding Husband’s bonus income in July 2020, but Fifth Third
Bancorp did not provide all the desired documents because, in Fifth Third Bancorp’s
opinion, the subpoenas were “wrongly issued.” The letter also indicates that Wife’s
counsel did not complain about the missing documents at that time. Therefore,
despite Wife’s statements to the contrary, evidence of the RSUs was available prior
to the first trial in February 2021.
Undisputed testimony showed that the Fidelity Investments account
is an employer-managed account that holds the RSUs. (Tr. 139-141.) The account
is not in Husband’s name, he has no control over it, and he has no access to the RSUs
until they vest. (Tr. 139-141.) When the RSUs vest, Husband is partially taxed on
the value of each share at the time of vesting as ordinary income (i.e., not capital
gains). These amounts are reflected on Husband’s paystubs and W-2, which were
admitted into evidence as defendant’s exhibits I, J, and L.
The vested RSUs appear in the employer-managed account at Fidelity
Investments, minus the mandatory IRS tax withholding. (Plaintiff’s exhibit No.
66(A).) Husband can liquidate the vested RSUs at the then-existing stock price,
which may be higher or lower than the amount on which Husband was taxed at the
time of vesting.
Husband testified that he liquidated the vested RSUs received in 2021
and 2022 to pay the parties’ 2020 and 2021 tax liabilities. (Tr. 146-148; defendant’s
exhibit G.) The evidence further showed that the vested RSUs in the amount of
$69,476.50 received in 2023 were still in his employer-managed account at the time
of trial. (Tr. 117, 146.) And the RSU amount of $52,684 received in 2019 was
liquidated and disposed of before Wife filed the complaint for divorce. (Tr. 81.)
Therefore, the vested RSUs were not dissipated for Husband’s sole benefit or to
intentionally defeat Wife’s interest in these marital assets. Some were distributed
before the complaint for divorce was filed, others were used to pay the parties’
income tax liabilities, and some remained in Husband’s employer-managed
account.
The November 18, 2019 temporary support order found that
Husband’s income for support purposes was $876,423.56, and ordered Husband to
pay Wife spousal and child support in the amount of $11,775.13 per month. Because
the RSUs were included as part of Husband’s income in the November 18, 2019
temporary support order, Husband was free to use the RSUs to pay tax liabilities
and living expenses just as he could any other income remaining after paying his
support obligations. Nothing in the temporary support order prohibited Husband
from using the RSUs, and the trial court accounted for the RSUs as part of
Husband’s income when it calculated the amount of spousal and child support
Husband had to pay during the pendency of the litigation.
Furthermore, the trial court restrained all of Husband’s income except
for his base salary of $251,326.40 per year. Yet, the court required him to pay Wife
a total of $177,000 per year in spousal and child support. After subtracting
Husband’s support obligation of $177,000 from his pre-tax, base salary of
$251,326.40, Husband was left with $74,326.40 with which to pay his own living
expenses and the entirety of the parties’ joint income-tax liability. In 2021, Husband
owed $51,282 in taxes. (Defendant’s exhibit G.) Husband also owed four additional
estimated-tax payments of $19,267, which totaled $80,000 per year. (Defendant’s
exhibit G.) As a result, the court’s restraining orders left Husband with next to
nothing to live on. It was not unreasonable under these circumstances for Husband
to conclude that he could use the RSUs to pay the parties’ tax liabilities since the
RSUs were counted as income in the temporary support order. Therefore, the trial
court abused its discretion when it determined that Husband wrongfully dissipated
the RSUs.
2. $66,000 from Chase Bank
Husband opened a checking account at Chase Bank on August 6, 2019,
where he deposited his net salary and any monies that were not otherwise restrained
by the trial court’s restraining orders. The court found that Husband dissipated
$66,000 from his Chase Bank account. Indeed, the January 2023 statement from
the Chase account reflects a balance of $94,827.40 (Plaintiff’s exhibit No. 59(A),
p. 129.), and Husband’s May 5, 2023 financial disclosure affidavit reflects a balance
of $29,037.81. The difference between the January balance of $94,827.40 and the
May 2023 balance of $29.037.81 is slightly less than $66,000.
However, the February 2023 statement for the account shows that
$30,388.23 was wired to Wife’s lawyer’s IOLTA account. (Defendant’s exhibit P,
p. 1,325.) As previously stated, CSEA refunded the overpayment of child support to
Husband in the amount of $30,388.23. Wife filed a motion for disgorgement of the
funds, and the trial court granted Wife’s motion and ordered Husband to remit
payment in the amount of $30,388.23 to Wife’s counsel. The February 2023
statement from the Chase account shows that Husband complied with the court’s
order and wired the money to Wife’s counsel. (Plaintiff’s exhibit No. 59(A), p. 129.)
Therefore, the $30,388.23 that was wired to Wife’s counsel pursuant to the court’s
order was not a dissipation of marital funds.
Husband also used the Chase account to pay rent of $4,200 per
month, the mortgage payment on the martial home in the amount of $842.13 per
month, and the expenses associated with the parties’ New York home in the amount
of $2,300 per month. These expenses totaled $7,342.13 per month. Husband listed
his living expenses on the financial disclosure statement that he filed on May 5,
2023. He also described these expenses during his testimony at trial. (Tr. 95-99.)
Thus, the evidence showed that the $66,000 Husband spent between January and
May 2023, was used to comply with the court’s order to remit $30,388.23, to
maintain the parties’ marital and vacation homes, and to pay for Husband’s ordinary
living expenses. There is no evidence that Husband profited from these payments
or that he willfully defeated Wife’s interest in marital assets.
3. Car Loan
However, Husband admitted that he used $27,000 from the Chase
account to pay off his son’s car loan. Despite the trial court’s finding to the contrary,
Husband testified that he never transferred title of the car to his son but that the car
was always in his son’s name. (Tr. 106.) Nevertheless, the issue here is whether
Husband committed financial misconduct using $27,000 from the Chase checking
account to pay off his son’s car loan. To answer this question, we must determine
whether the funds in the Chase checking account are marital property subject to
division or after-support-paid funds that Husband was entitled to keep or spend
however he desired.
As previously stated, Husband deposited his take-home pay into the
Chase account he opened after commencement of the divorce proceedings. As more
fully explained in the fourth assignment of error, because the trial court ordered
Husband to pay Wife more than half of his income, the court’s temporary spousal
support award was not equitable and requires a recalculation. Only when temporary
spousal support is recalculated in an equitable fashion can it be determined whether
the money in the Chase checking account is marital property or Husband’s separate,
after-support-paid income. Nevertheless, regardless of the outcome of that
calculation, it is clear that Husband believed the funds in the Chase account were
after-support-paid funds that he was entitled to keep or spend however he wished.
There is, therefore, no evidence that he intended to profit or intentionally defeat
Wife’s interest in marital assets by paying off his son’s car loan.
4. Economically Hostage
Finally, the trial court determined that Husband held Wife
“economically hostage” by failing to meet his temporary support obligations.
(Judgment entry of divorce p. 14.) The court’s order states:
From the beginning of this case[,] Defendant purposefully and willfully
held Plaintiff economically hostage by failing to pay his temporary
support obligations pursuant to the November 18, 2019 Temporary
Support Order. On May 6, 2021, approximately 18 months after the
Court issued the Temporary Support Order, this Court issued a
Judgment Entry finding that Defendant had a support arrearage of
$67,169.27. The Court ordered the $67,169.27 arrearage be paid from
Defendant’s restrained employment bonuses held in an IOLTA account
and that all further support payments be made from the IOLTA account
during the pendency of the case.
The November 18, 2019 temporary support order required Husband
to pay a total of $14,757.26 per month in child and spousal support. Two months
after the temporary support order, on January 22, 2020, the trial court restrained
Husband’s employer from releasing or disbursing “any bonuses, distributions,
payroll incentives, monetary awards, or any funds over and above his base pay.”
(Jan. 22, 2020, judgment entry.) Again, Husband’s pre-tax, base salary was
$251,326.40, and he was required to pay a total of $177,000 per year in support.
After subtracting Husband’s support obligation from his base salary, he was left with
$74,326.40 with which to pay his own living expenses and the parties’ income tax
liabilities. Defendant’s exhibit G shows that Husband pays nearly $80,000 per year
in estimated income tax. Quarterly, estimated payments are necessary to avoid
interest and penalties because his employer was only permitted to withhold 22% in
taxes on his “supplemental income,” and all of his bonus income is “supplemental
income.” 26 C.F.R. 31.3402(g)-1; 26 U.S.C. 6654.
Husband testified that he needed some of his bonus income to pay
support, taxes, the mortgage on the parties’ marital residence and the expenses
associated with the New York residence. (Tr. 98.) Husband also filed several
motions over the course of four years of litigation asking the court to release some
of his restrained income so that he could meet his financial obligations. In a motion
titled “Defendant’s emergency motion for relief from ex parte orders” filed March 4,
2021, Husband advised the court:
On November 18, 2019, the Court issued a Temporary Support Order
that established [Husband]’s support obligation based upon an income
of $876,423.56, even though all but $250,000 of [Husband]’s
2019 wages were restrained and therefore unavailable to
satisfy any support obligation.
(Emphasis sic.) Three months later, in June 2021, Husband filed a motion titled
“Emergency motion to partially dissolve restraining orders to pay income tax
liability.” On October 1, 2021, Husband filed another motion seeking the release of
some of his restrained income to ensure payment of the “[t]he remaining balance of
$33,675.39” of temporary support. Finally, on February 1, 2023, Husband filed a
motion titled “Defendant’s motion to dissolve temporary restraining orders” once
again asking the court to release restrained income. This motion states, in relevant
part:
[T]his Court found Defendant’s income for temporary support
purposes to be almost $900,000, when Defendant’s [base] salary is
significantly less ─ approximately $250,000. It was Defendant’s
bonuses in 2019 that allowed Defendant to earn nearly $900,000.
However, since that time, this Court restrained all of Defendant’s
bonuses in 2020 and 2021, leaving him to receive only his [base] salary,
yet expects Defendant to pay temporary spousal support, child support,
and all the expenses of the family based on his salary and his bonuses.
Then, when Defendant was unable to meet all his obligations because
the Court restrained over half of his income, this Court ordered that his
bonuses be held by Plaintiff’s counsel, so that Plaintiff’s counsel could
then disperse the monies to ODJFS-OCSS [“CSEA”]. This Court
ordered that Defendant be responsible for spousal support, child
support, expenses etc., then restricted his ability to follow this Court’s
orders.
(Emphasis added.) The trial court never ruled on any of these motions.
Husband was not at fault for failing to pay the entirety of his support
obligations. He filed motion after motion seeking the release of funds in order to
pay his support obligations and income tax liabilities, and the trial court ignored his
requests. Husband did not keep Wife “economically hostage.” The court’s
restraining orders, coupled with its failure to rule on any motions for relief from
those orders, kept Husband, and therefore Wife, economically hostage.
We find no evidence that Husband committed financial misconduct.
Therefore, the distributive award to Wife in the amount of $500,000 for financial
misconduct was an abuse of discretion. The first assignment of error is sustained.
C. Spousal and Child Support
In the second assignment of error, Husband argues the trial court
erred and abused its discretion in calculating his income for purposes of awarding
child and spousal support. He contends the court erroneously “double counted” his
bonus income.
Spousal support is intended to provide for the financial needs of the
ex-spouse and not necessarily to equalize the parties’ income after divorce. Moell v.
Moell, 98 Ohio App.3d 748, 751,
649 N.E.2d 880 (6th Dist.1994); see also Walpole
v. Walpole, 8th Dist. Cuyahoga No. 99231,
2013-Ohio-3529, ¶ 23 (“Although there
is no prohibition against the equalization of incomes in appropriate cases, income
equalization is not a factor that must be considered under R.C. 3105.18(C)(1).”). The
goal of spousal support is to reach an equitable result. Kaechele v. Kaechele,
35 Ohio
St.3d 93, 96,
518 N.E.2d 1197 (1988).
In determining the amount and duration of spousal support, the trial
court must consider the factors listed in R.C. 3105.18(C). Deacon v. Deacon, 8th
Dist. Cuyahoga No. 91609, 2009-Ohio-2491, ¶ 57, citing
Kaechele at 96. These
factors include each party’s income, earning capacity, age, retirement benefits,
education, assets and liabilities, and physical, mental, and emotional condition, the
duration of the marriage, their standard of living, inability to seek employment
outside the home, contributions during the marriage, tax consequences, and lost
income due to a party’s fulfillment of marital responsibilities. R.C. 3105.18(C)(1)(a)-
(m).
“Child support, as a ‘court-ordered payment,’ is a relevant factor in
determining spousal support. R.C. 3105.18(C)(1)(i).” Ervin v. Ervin, 4th Dist.
Scioto No. 02CA2850, 2003-Ohio-3517, ¶ 19. The trial court is also free to consider
any other factor that the court finds to be “relevant and equitable.”
R.C. 3105.18(C)(1)(n). Although the court need not expressly comment on each
statutory factor it considered, it must indicate the basis for an award of spousal
support in sufficient detail to enable a reviewing court to determine that the award
is fair, equitable, and in accordance with the law.
Kaechele at 96.
When issuing an order of child support, the trial court must calculate
the amount of support “in accordance with the basic child support schedule, the
applicable worksheet, and the other provisions of Chapter 3119.” R.C. 3119.02.
However, where the combined income of the parties exceeds $150,000, the child
support schedule does not apply, and the court must consider the standard of living
of the children and parents, who are the subject of the child support order. R.C.
3119.04.
The judgment entry of divorce ordered Husband to pay $10,600 per
month in spousal support and $3,824 as child support based on his base salary, plus
50% of Husband’s bonus income. Husband’s base salary is $251,000 per year. Half
of $251,000 is $125,000. The award of $172,000 is 68.5% of $251,000. Therefore,
the court’s support order requiring Husband to pay Wife 68.5% of his base salary
plus 50% of his bonus income is not equitable and constitutes an abuse of discretion.
The second assignment of error is sustained.
D. Marital Home
In the third assignment of error, Husband argues the trial court erred
and abused its discretion when it determined the value of the parties’ marital
residence. He contends the court’s valuation of the property was not based on facts
or evidence presented at trial.
The parties’ marital residence was located on Avalon Drive in Rocky
River, Ohio. Wife presented evidence indicating that the marital home was valued
at $1,000,000.00, when it was appraised in June 2019. Husband’s appraiser
testified that the marital residence had a value of $1,300,000.00 as of April 17, 2023,
approximately one month before trial. The trial court rejected Wife’s appraisal on
grounds that it was out-of-date. Although Husband’s appraiser, Charles W. Flagg
(“Flagg”), completed his appraisal one month before trial, the court disregarded it
because Flagg did not inspect the interior of the home. Nevertheless, the trial court
concluded that the parties’ marital home was worth $1,150,000. (Judgment entry
of divorce p. 10.)
Trial courts have discretion to determine the value of property, but its
valuation must be based on evidence. McCoy v. McCoy, 91 Ohio App.3d 570, 578,
632 N.E.2d 1358 (8th Dist.1993). “To achieve a middle of the road estimation
without some basis for such an adjustment from one extreme or the other would
constitute error as not being supported by the evidence.”
Id.
The trial court rejected Flagg’s appraisal even though he appraised the
house one month before trial because he did not inspect the interior of the home.
The judgment entry of divorce states in reaching its valuation of the home, the trial
court considered “current market trends” and “a review of comparable real estate in
the area of the marital residence.” However, like Flagg, the court did not inspect the
interior of the home and the court provides no explanation as to why its valuation is
superior to Flagg’s, especially when Flagg is an appraiser and the trial court is not.
Moreover, a trial court has no authority to consider evidence outside
the record and or to conduct its own investigation of the facts. State v. Bayliff, 3d
Dist. Auglaize No. 2-10-08, 2010-Ohio-3944, ¶ 27, citing State v. Mattox,
8 Ohio
App.2d 65,
220 N.E.2d 708 (10th Dist.1966); State v. Denoon,
8 Ohio App.2d 70,
220 N.E.2d 730 (10th Dist.1966). The trial court abused its discretion by
disregarding the expert appraisal evidence in favor of its own independent
investigation.
The third assignment of error is sustained.
E. Temporary Support
In the fourth assignment of error, Husband argues the trial court
erred and abused its discretion in awarding temporary support. He contends the
trial court counted his income twice, which resulted in an unfair temporary support
obligation.
As previously stated, the November 18, 2019 temporary support order
found that Husband’s income for support purposes was $876,423.56. This number
included Husband’s base salary of $251,336, plus his bonus income. The temporary
support order required Husband to pay $8,000 per month in temporary spousal
support, $3,115.13 per month in temporary child support, $500 per month in
temporary support arrears, the mortgage on the marital residence in the amount of
$843.13 per month, and the utilities and property taxes associated with the New
York vacation home in the amount of $2,300 per month. The total temporary
support order required Husband to pay Wife $14,757.26 per month or $177,087.12
per year.
After subtracting the total support amount of $177,087.12 from
Husband’s pre-tax, base salary of $251,336, Husband was left with $74,248.88, with
which to pay his own expenses and the parties’ joint income tax liabilities. And when
Husband was unable to make support payments because the support obligations
exceeded his net pay, the court ordered the support payments to be made from the
restrained bonus income held in escrow in counsel’s IOLTA accounts.
Husband deposited his take-home pay into the Chase bank account
he opened after commencement of the divorce proceedings. In its judgment entry
of divorce, the trial court treated the Chase account as a marital asset and ordered
Husband to pay Wife half the sum of $94,827.40, which represented the balance in
the Chase account as of January 20, 2023. (Judgment entry of divorce p. 11.).
However, not all the money in the Chase account can be fairly
characterized as marital property. By requiring Husband to pay Wife more than half
of his pre-tax, base salary while simultaneously restraining his bonus income, the
court made it difficult for Husband to comply with the temporary support order.
And, by requiring temporary support payments to be made exclusively from the
restrained bonus income instead of equally from both sources of income, the trial
court made it difficult to distinguish between the marital funds to be factored into
spousal support and after-support funds that Husband was entitled to keep. Some
or all of the money in the Chase checking account is after-support income that may
be commingled with marital funds depending on the outcome of an equitable
temporary spousal support calculation.
Equity dictates that Wife could receive up to 50% of Husband’s
income, not more. To properly account for the funds each party was entitled to, the
court should have divided Husband’s entire income equally (i.e, half of the net base
salary and net of the bonus income) instead of awarding Wife more than half of
Husband’s pre-tax, base salary plus 50% of his restrained bonus income, but then
paying the support obligation from the restrained funds. We, therefore, find that
the trial court abused its discretion in awarding temporary support.
The fourth assignment of error is sustained.
F. Attorney Fees
In the fifth assignment of error, Husband argues the trial court erred
and abused its discretion in ordering Husband to pay $110,000 in attorney fees to
Wife’s lawyer.
There are “no automatic attorney fees” in domestic relations cases.
Packard v. Mayer-Packard, 8th Dist. Cuyahoga No. 85189, 2005-Ohio-4392, ¶ 8.
However, a trial court “may award all or part of reasonable attorney’s fees and
litigation expenses to either party if the court finds the award equitable.” R.C.
3105.73(A). In determining whether an award of attorney fees is equitable, R.C.
3105.73(A) directs the court to “consider the parties’ marital assets and income, any
award of temporary spousal support, the conduct of the parties, and any other
relevant factors the court deems appropriate.” R.C. 3105.73(A).
Husband argues the award of attorney fees was an abuse of discretion
because Wife received half of the marital estate, he did not have a superior financial
ability to pay the fees, and there was nothing in the record indicating that he caused
Wife to incur an increase in attorney fees. Wife, on the other hand, contends that
Husband failed to accurately disclose his assets and income and violated restraining
orders and temporary support orders, which necessitated the filing of additional
motions to protect the marital estate while the case was pending. However, Wife
does not cite any evidence in the transcript or in the record to support these claims
as required by App.R. 16(B) and 16(A)(3).
Nevertheless, it is true that Wife filed several motions to show cause
for nonpayment of temporary support in 2019 and 2020 and February and April,
2021. These motions were duplicative and accused Husband of failing to pay
temporary support in violation of the court November 18, 2019 temporary support
order. On May 6, 2021, the trial court found that Husband had a temporary support
arrearage of $67,059.32, and ordered that the arrearage be paid from his restrained
bonus income.
However, as previously stated, Husband filed several motions before
May 2021, asking the court to release his restrained bonus income because he was
unable to meet his support obligations based on his base salary alone. Husband
explained in a motion to release restrained bonus income, filed March 4, 2021:
On November 18, 2019, the Court issued a Temporary Support Order
that established [Husband]’s support obligation based upon an income
of $876,423.56, even though all but $250,000 of [Husband]’s 2019
wages were restrained and therefore unavailable to satisfy any support
obligation.
The trial court never ruled on this motion. In his April 24, 2021 brief in opposition
to Wife’s motion to show cause, Husband reiterated:
[Husband] cannot be held in contempt when it is impossible for him to
comply with the Magistrate’s Order of Temporary Support dated
November 18, 2019. When the court granted Plaintiff’s motions for ex
parte restraining orders and impermissibly restrained his employer
Fifth [Third] Bank from paying to [Husband] the income upon which
the court’s temporary support order was based, it became impossible
for him to comply with that temporary support order. The two
discretionary and non-discretionary bonuses that [Husband] earned
are needed to satisfy the temporary support order and to allow him to
pay his own expenses. Indeed, the pre-tax portion of the restrained
funds (his discretionary and non-discretionary bonuses) represent
70% of [Husband]’s 2021 income, without which Husband cannot
satisfy the temporary support order.
The record supports Husband’s assertions. The November 18, 2019
temporary support order was based on Husband’s total income of $876,423.56,
which was comprised of a base salary of $251,326.40 and $625,087.56 in bonus
income. When the trial court restrained his bonus income, Husband was left with
only his pre-tax, base salary of $251,326.40 to pay his support obligation of
$177,000 per year. Husband is taxed at a rate of 40%. Thus, even if Wife received
all of Husband’s after-tax income, he would still be in arrears of the support
obligation, and he would have nothing with which to support himself and the child
who was living with him at the time of the parties’ separation. Husband should not
have been charged with misconduct for failing to pay temporary support when the
court’s order made it impossible for him to comply.
Furthermore, there is nothing in the record to suggest that Husband
failed to cooperate in discovery and no contempt motions were filed against
Husband for failure to comply with discovery. Wife had more than sufficient
resources to pay her own attorney fees since she received temporary spousal
support, spousal support, and half of the marital estate. Therefore, the trial court’s
order requiring Husband to pay Husband’s attorney fees was an abuse of discretion.
The fifth assignment of error is sustained.
G. Loan from Wife’s Parents
In the sixth assignment of error, Husband argues the trial court erred
and abused its discretion when it determined that Wife’s “non-descript” loan in the
amount of $45,000 from her parents was marital property even though the funds
were used to pay tuition for the parties’ emancipated children.
A trial court must take into account the parties’ marital debt when
dividing marital property. Chattree v. Chattree, 2014-Ohio-489,
8 N.E.3d 390, ¶ 8
(8th Dist.), citing Kehoe v. Kehoe,
2012-Ohio-3357,
974 N.E.2d 1229, ¶ 14 (8th
Dist.). “Marital debt” is “‘debt incurred during the marriage for the joint benefit of
the parties or for a valid marital purpose.’” Cross v. Cross, 8th Dist. Cuyahoga No.
2015-Ohio-5255, ¶ 30, quoting Ketchum v. Ketchum, 7th Dist. Columbiana No.
2001
CO 60,
2003-Ohio-2559, ¶ 47, citing Turner, Equitable Division of Property,
Section 6.29, 455 (2d Ed.1994, Supp. 2002). “Debt that is not for the joint benefit
of the parties is considered nonmarital and ‘equity generally requires that the
burden of nonmarital debts be placed upon the party responsible for them.’”
Id.,
quoting Minges v. Minges, 12th Dist. Butler No. CA87-06-085,
1988 Ohio App.
LEXIS 660 (Feb. 29, 1988).
Debts accumulated during the marriage are presumed to be marital
debts. Rossi v. Rossi, 8th Dist. Cuyahoga Nos. 100133 and 100144, 2014-Ohio-1832,
¶ 62, citing Cooper v. Cooper, 12th Dist. Clermont No. CA2013-02-017, 2013-Ohio-
4433, ¶ 18. Therefore, the party seeking to have the debt classified as a separate debt
bears the burden of proving, by a preponderance of the evidence, that the debt was
the separate obligation of the other spouse or was not for a valid marital purpose.
Id.
Wife testified at trial that she borrowed money from her parents to
pay real estate taxes on the parties’ marital home and to pay tuitions for two of her
emancipated children who were in college. (Tr. 38.) Wife stated that she borrowed
$12,000 from her parents to pay the real estate taxes on the marital home before
receiving any spousal support. (Tr. 38.) She also stated that she made college tuition
payments of various amounts at different times for two adult children. (Tr. 38.)
When asked how much she owed her parents, she replied, “I would say $45,000
probably.” (Tr. 28.)
Pursuant to the November 18, 2018 temporary support order, Wife
was responsible for the real estate taxes on the marital home. Husband was assigned
other responsibilities such as paying the mortgage on the marital home and the
expenses associated with the parties’ New York vacation home. Therefore, because
Husband was not responsible for the real estate taxes, he is not required to repay a
loan for that expense, especially since Wife ultimately received temporary spousal
support that included an arrearage for the period of time when she was not yet
receiving support.
And, paying tuition for the parties’ adult children is not a valid
“marital purpose” since a parent’s duty to support a child ends when the child
reaches 18 years old. Castle v. Castle, 15 Ohio St.3d 279, 282,
473 N.E.2d 803
(1984); Dudziak v. Dudziak,
81 Ohio App.3d 361,
611 N.E.2d 337 (8th Dist.1992);
R.C. 3103.03. Indeed, a court lacks jurisdiction to order a parent to support a child
once that child reaches the age of majority. In re W.W., 8th Dist. Cuyahoga No.
98784,
2013-Ohio-827, ¶ 12. See also Gallo v. Gallo, 11th Dist. Lake No. 2000-L-
208,
2002-Ohio-2815. In Gallo, the court held that a wife could not be held liable
for a loan obtained by husband to pay for an emancipated child’s education. Id. at
¶ 31-33.
Therefore, the trial court erred and abused its discretion by classifying
Wife’s loan from her parents as a marital debt and ordering Husband to pay half of
it.
The sixth assignment of error is sustained.
H. Lapsed Insurance Policy
In the seventh assignment of error, Husband argues the trial court
erred and abused its discretion in granting Wife ownership of a life insurance policy
issued by Northwestern Mutual. He contends there was no basis for awarding the
insurance policy to Wife because the policy expired in March 2023, two months
before the divorce trial.
The judgment entry of divorce provides, in relevant part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
Plaintiff shall be the owner and sole beneficiary of Defendant’s
Northwestern Mutual life insurance policy with a total death benefit of
Five Hundred Thousand Dollars ($500,000). Defendant shall pay all
premiums on the life insurance policy until he no longer has a support
or property division obligation.
The parties stipulated to the admission into evidence of defendant’s exhibit U.
Defendant’s exhibit U contains a life insurance annual policy statement from
Northwestern Mutual indicating that the policy expired and coverage ended on
March 5, 2023. Therefore, there was no life insurance policy from Northwestern
Mutual in existence to award to Wife in the divorce.
Furthermore, “[a] trial court may not secure a spousal support order
with life insurance, unless the order specifically states that the spousal support
continues after the death of the obligor.” Hoopes v. Hoopes, 8th Dist. Cuyahoga No.
106855, 2018-Ohio-5232, ¶ 18, citing Janosek v. Janosek, 8th Dist. Cuyahoga Nos.
86771 and 86777,
2007-Ohio-68, ¶ 10, citing Waller v. Waller,
163 Ohio App.3d 303,
2005-Ohio-4891,
837 N.E.2d 843 (7th Dist.).
The judgment entry of divorce provides that Husband shall pay
spousal support “until further order of this Court.” However, it also states that “all
payments shall terminate upon the death of either party[.]” Therefore, because the
Northwestern Mutual life insurance policy expired prior to trial and the support
order does not extend until after Husband’s death, the court had no authority to
require Husband to provide life insurance for Wife’s benefit.
Therefore, the seventh assignment of error is sustained.
I. Proposed Shared Parenting Plan
In the eighth assignment of error, Husband argues the trial court
erred and abused its discretion by not adopting his proposed shared parenting plan.
He contends the court abused its discretion by reducing his parenting time.
At trial, Husband asked to maintain the shared parenting
arrangement the parties applied during the pendency of the litigation. Husband
filed a motion to adopt a shared parenting plan on July 24, 2020, but the trial court
never ruled on it. Nevertheless, the parties voluntarily shared parenting, according
to the schedule in exhibit No. 1 attached to Husband’s motion (“proposed shared
parenting plan”), until the court issued the final judgment entry of divorce. (Tr. 102;
Defendant’s Motion to Adopt Shared Parenting.).
Under the proposed shared parenting plan, Husband had visitation
with his son, C.E., every other weekend from Thursday through Sunday evening and
dinner on Thursday nights when it was not Husband’s weekend with the child.
Under the proposed shared parenting plan, the parties also took turns having C.E.
for holidays throughout the year. With respect to C.E.’s spring break and Christmas
break, Husband had visitation with C.E. for his entire spring break, every other year,
and half of his winter break, alternating between the first half of the break and the
second half of the break each year. For Monday holidays, such as Martin Luther
King Day, the parties took turns having C.E. for the entire long weekend and not just
the Monday holiday. Husband exercised his right to visitation according to the
proposed shared parenting plan during the litigation except when his work required
him to travel, and he wanted to continue with the same arrangement.
In the judgment entry of divorce, the trial court designated Wife the
residential parent and legal custodian of C.E. and reduced Husband’s parenting
time. Instead of visiting from Thursday to Sunday evening on alternating weekends,
the court’s order grants Husband visitation from Friday after school until Sunday at
6:00 p.m. The court’s order further provides that Husband “shall also be entitled to
holiday time and days of special meaning in accordance with this Court’s standard
schedule.” The court’s standard schedule does not allow Husband to have C.E. for
spring break; it only allows visitation on Easter Sunday every other year. It does not
allow Husband to have half of winter break; it only allows Husband to visit on either
Christmas Eve or Christmas Day, alternating each year. The trial court determined
that reducing Husband’s parenting time was in the child’s best interest.
R.C. 3109.04 governs the allocation of parental rights and requires a
court to consider the best interest of the child. R.C. 3109.04(A). In determining
which parenting arrangement serves the child’s best interest, the court must
consider the following “best interest factors”:
(a) The wishes of the child’s parents regarding the child’s care;
(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child’s wishes and concerns as
to the allocation of parental rights and responsibilities concerning the
child, the wishes and concerns of the child, as expressed to the court;
(c) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly affect the
child's best interest;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the
situation;
(f) The parent more likely to honor and facilitate court-approved
parenting time rights or visitation and companionship rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that parent
pursuant to a child support order under which that parent is an obligor;
(h) Whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to any
criminal offense involving any act that resulted in a child being an
abused child or a neglected child; whether either parent, in a case in
which a child has been adjudicated an abused child or a neglected child,
previously has been determined to be the perpetrator of the abusive or
neglectful act that is the basis of an adjudication; whether either parent
or any member of the household of either parent previously has been
convicted of or pleaded guilty to a violation of section 2919.25 of the
Revised Code or a sexually oriented offense involving a victim who at
the time of the commission of the offense was a member of the family
or household that is the subject of the current proceeding; whether
either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any offense
involving a victim who at the time of the commission of the offense was
a member of the family or household that is the subject of the current
proceeding and caused physical harm to the victim in the commission
of the offense; and whether there is reason to believe that either parent
has acted in a manner resulting in a child being an abused child or a
neglected child;
(i) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the
other parent’s right to parenting time in accordance with an order of
the court;
(j) Whether either parent has established a residence, or is planning to
establish a residence, outside this state.
R.C. 3109.04(F)(1).
Wife testified at trial that C.E. had been bedwetting. She also recently
discovered that C.E. had a vitamin D deficiency. She claimed that Husband did not
take these conditions seriously and that she could not co-parent with him because
she could not communicate with him. (Tr. 29-30.)
Husband testified that he takes an active role in parenting his
children. He coached two of his son’s basketball teams and coached his daughter’s
soccer team. (Tr. 79.) Regarding C.E.’s recently diagnosed vitamin D deficiency,
Husband stated that he would include vitamin D rich foods in his diet and make sure
he gets plenty of sunshine. He had only recently learned of the bedwetting and
suggested to Wife that maybe she was mistaking “wet dreams” for bedwetting
because he is 14 years old, and he never wet the bed at Husband’s house. (Tr. 103.)
In deciding it was best for C.E. to spend less time with Husband, the
court found that Husband did not exercise all the parenting time available to him
during the litigation, he failed to pay his child support obligations, and the parents
are unable to make joint decisions concerning the minor child. (Judgment entry of
divorce p. 15.)
The record shows that Husband visited with C.E. as much as possible,
but he occasionally missed visits because he was required to travel for work. There
is no evidence that he missed a visit due to lack of affection for the child. And, as
previously explained, Husband repeatedly asked the court to release bonus money
in order to help him pay his support obligations. There was also no evidence that
Husband was unwilling to pay child support. Rather, Husband had difficulty
meeting all of his financial obligations due to the court’s repressive restraining
orders. And both parties are responsible for their ineffective communications.
Moreover, the reduced parenting time does not reduce the parties’ communication
because the court’s order does not reduce the number of visits; it only reduces the
length of the visits and all communications could continue through Our Family
Wizard as before.
The evidence showed that Husband loves his son and wishes to spend
time with him. Unfortunately, there is no evidence of C.E.’s preference with regard
to shared parenting because C.E. did not testify at trial and he was not represented
by a guardian ad litem, who could speak on his behalf. Although Wife testified that
C.E. had recently begun bedwetting, which may be a symptom of anxiety, it is not
surprising that the child might feel some anxiety since his parents were in the midst
of divorce and Wife recently had an adverse reaction to an antibiotic that affected
her ability to walk. (Tr. 32.) Moreover, Husband only just learned that C.E. was
bedwetting and he did not have sufficient time to adequately assess the issue for
himself before testifying at trial. He nevertheless indicated he would monitor C.E’s
behavior and health. We find the reduction in Husband’s parenting time was an
abuse of discretion under these circumstances.
The eighth assignment of error is sustained.
J. Missing Funds
In the ninth assignment of error, Husband argues the trial court erred
in failing to account for funds missing from Wife’s lawyer’s IOLTA account.
Husband asserts that plaintiff’s exhibit No. 79 “shows that $11,225.13 was sent by
Wife’s counsel to OCSS on June 20, 2022, and was sent to ‘other.’” He further
asserts that “[t]his amount was not sent to either party and the trial court did not
address these missing funds in the Judgment Entry of Divorce.” However, plaintiff’s
exhibit No. 79 does not list any transactions occurring on June 20, 2022, and there
is no transaction listed in plaintiff’s exhibit No. 79, indicating that the funds were
sent to “other.”
Husband also cites plaintiff’s exhibit No. 72(B) in support of his
claim for missing funds. In plaintiff’s exhibit No. 72(B), there is a transaction dated
July 7, 2022, indicating that funds in the amount of $11,225.13 were sent to “other.”
It is unclear who “other” represents. It is, therefore, unclear whether these funds
were delivered to the appropriate party. We, therefore, sustain the ninth assignment
of error.
K. Continuing Restraining Orders
In the tenth assignment of error, Husband argues the trial court
erred and abused its discretion by leaving restraining orders in effect and not
dismissing the third-party defendant.
In a domestic relations action, a temporary restraining order merges
within the final decree, and the right to enforce the order does not
extend beyond the decree, unless it has been reduced to a separate
judgment or unless it has been considered by the trial court and
specifically referred to within the decree.
Brown v. Brown, 2014-Ohio-2402,
14 N.E.3d 404, ¶ 71 (8th Dist.), citing O’Brien v.
O’Brien, 8th Dist. Cuyahoga No. 89615,
2008-Ohio-1098, ¶ 83-88. See also
Stratton v. Stratton, 8th Dist. Cuyahoga No. 107798,
2019-Ohio-3279, ¶ 22-24.
A docket entry dated June 9, 2023 states, in relevant part: “It is
further ordered that all restraining orders previously issued by this court are hereby
dissolved and set aside. O.S.J.” This language indicates the trial court dissolved all
the restraining orders. However, the “O.S.J.” language directs us to the journal,
which in this instance refers to the judgment entry of divorce. The judgment entry
of divorce states, in part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all
restraining orders previously issued by this Court on the assets and
accounts of the parties shall not be released until all property has been
divided as set forth herein.
The language in the judgment entry of divorce conflicts with the language on the
docket. The language in the judgment entry of divorce also fails to reference any
specific restraining order. Instead, it blanketly refers to “all restraining orders.”
That is, the judgment entry of divorce does not identify the restrained parties nor
does it identify the restrained items. Therefore, the trial court erred in issuing an
order to continue all unidentified restraining orders.
The tenth assignment of error is sustained.
The trial court judgment’s is reversed and the case is remanded to (1)
vacate the distributive award to Wife in the amount of $500,000; (2) recalculate
spousal and child support and temporary child and spousal support to make the
awards equitable and adjust, if necessary, the division of marital property such as
Husband’s Chase account in accordance with this opinion, (3) vacate the award of
attorney fees to Wife, (4) adopt Flagg’s appraisal of the marital property as the value
of the property, (5) order Wife to be solely responsible for the loan from her parents,
(6) vacate the order granting Wife ownership of the Northwestern Mutual Insurance
policy, (7) maintain the proposed shared parenting plan set forth in exhibit No. 1,
attached to “Defendant’s motion to adopt shared parenting” filed on July 24, 2020,
(8) account for one payment made on July 7, 2022, from Wife’s lawyer’s IOLTA
account in the amount of $11,225.13 as reflected in plaintiff’s exhibit No. 72(B); and
(9) vacate all restraining orders.
On remand, the trial court shall calculate the amount Wife should
have received instead of the amount she actually received and adjust the payment of
temporary support accordingly. The trial court may award Wife some of the funds
in the Chase account, but only if she has not yet received half of Husband’s total
income during the relevant period of time for purposes of temporary support.
Because Wife received more than half of Husband’s base salary as temporary
support and there were no arrearages at the time of trial, it is more likely the case
that Wife received an overpayment of temporary spousal support.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, domestic relations division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR
