[Cite as Moore v. Moore,
2025-Ohio-88.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY
ERIC D. MOORE,
Plaintiff-Appellee,
v.
KAYLA R. MOORE,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 MO 0003
Civil Appeal from the
Court of Common Pleas, Domestic Relations Division, of Monroe County, Ohio
Case No. 2022-079
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Katelyn Dickey, Judges.
JUDGMENT:
Reversed and Remanded.
Atty. Michael J. Shaheen, Shaheen Law Group, for Plaintiff-Appellee and
Atty. Rebecca L. Bench, for Defendant-Appellant.
Dated: January 14, 2025
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HANNI, J.
{¶1} Defendant-Appellant, Kayla R. Moore (Mother), appeals from a Monroe
County Common Pleas Court, Domestic Relations Division, judgment entry and decree
of divorce. She asserts that the trial court erred by modifying the parties’ shared parenting
plan without finding a change of circumstances. She further contends that the trial court
abused its discretion when it failed to find that Plaintiff-Appellee, Eric D. Moore (Father),
committed financial misconduct, failed to find him in contempt, and failed to provide
financial compensation to her or award her attorney fees. Mother further asserts that the
trial court erred by improperly awarding credits and offsets to Father and failing to divide
assets which resulted in Father receiving an improper financial benefit.
{¶2} For the following reasons, we find that the court erred when it modified the
shared parenting plan without providing the parties an opportunity to question the
Guardian Ad Litem (GAL). We find that we lack jurisdiction to address the issue of
contempt sanctions and financial misconduct as it is not a final appealable order. Even if
we did possess jurisdiction, however, we would find that the court impliedly addressed
sanctions for contempt against Father when it ordered credits for the property and denied
all other pending motions. We further find that the court’s findings on some of its credits
warrant remand for review and explanation. The court shall review and provide support
for crediting Father with the expense of well pad reclamation, the entirety of property
taxes, and the entire diesel fuel and oil expense. The court shall also review and provide
support for its decision to not credit Mother for health insurance payments.
{¶3} Finally, we find that the court erred by not reviewing, considering, and
analyzing the $50,000 withdrawn by Father from the parties’ joint account.
{¶4} The parties were married on April 29, 2011 and have two minor children.
{¶5} Father filed for divorce on February 18, 2022 and requested an equitable
division of the marital assets and designation as residential parent or shared parenting.
He also filed for temporary orders, which included restraining the parties from terminating
health insurance, allocating debts and expenses during the action, and residential parent
designation or shared parenting while the action was pending.
{¶6} The court’s March 1, 2022 journal entry restrained the parties from selling
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or disposing of individual or jointly-owned real or personal property. The court also
restrained them from terminating or modifying insurance or incurring additional debt. The
court ordered a temporary orders hearing.
{¶7} On March 4, 2022, Mother opposed Father’s motion and filed her own
proposed temporary orders. She requested spousal support and designation as
temporary residential parent. She requested that the court grant Father parenting time
on alternating weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m., and a
Wednesday visit from 4:00 p.m. through 8:00 p.m. She also requested that Father pay
her $25,000 of the $50,000 he withdrew on January 14, 2022 from a joint checking
account.
{¶8} The court issued temporary orders on April 4, 2022 after a hearing. The
court adopted Mother’s parenting time schedule and granted Father parenting time during
Week 1 on Wednesday after school until 7 p.m. and Thursday after school until Sunday
at 5:00 p.m. For Week 2, the court ordered Father’s parenting time as Wednesday and
Thursday after school until 7 p.m. The court further ordered that when school was not in
session, Father had parenting time during Week 1 on Wednesday at 3:00 p.m. until 7:00
p.m. and Thursday at 4:00 p.m. until Sunday at 5:00 p.m. The court granted Father’s
Week 2 parenting time when school was not in session as Wednesday at 3:00 p.m. until
7:00 p.m. and Thursday at 3:00 p.m. until Friday at 3:00 p.m. The court applied the
standard visitation schedule if the parties could not agree on a holiday schedule. The
court ordered the parties to contact the child support agency for a child support calculation
with Father as the obligor.
{¶9} The court also ordered Father’s counsel to hold current and future oil and
gas proceeds in his trust account until the final divorce hearing or a future court order.
{¶10} On April 25, 2022, the court received the child support calculation
worksheet. Father challenged sections of the worksheet and also cited his proposed
parenting arrangement. He requested modification to Week 1 from Thursdays after
school to Monday with a return to school, and Week 2 from Wednesday after school to
Friday, with a return to school. He complained that Mother violated the parenting order
by obstructing the start of his weekday parenting time after she removed the children from
school before the end of the school day. He also asserted that Mother refused him the
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children during the Easter holiday, and entered the marital home and removed security
cameras.
{¶11} Father requested that Mother return the cameras and he asked the court to
modify the Gulfport proceeds order that required him to place the money in his attorney’s
trust account. He attached the property deed showing he acquired the property subject
to the Gulfport proceeds before the marriage and the deed showed that the property was
only in his name.
{¶12} On June 27, 2022, Mother counterclaimed for divorce.
{¶13} On July 22, 2022, Mother filed a motion for contempt, asserting that Father
canceled a car insurance policy by removing his cars and payment information from the
account. She alleged Father had to make a payment to continue coverage. Father
requested a court order that Mother be responsible for her own car insurance. He
asserted that no lapse in coverage existed and he attached documentation.
{¶14} On August 19, 2022, after a hearing, the court issued an entry confirming
that the parties reached an interim agreement that extinguished all pending motions and
allocated parenting rights and responsibilities on a more permanent basis. The court
ordered shared parenting, with Mother as the residential parent for school purposes and
both parents for all other matters. The parenting time was Week 1 for Father from
Wednesday after school to Sunday at 7:00 p.m., and Week 2 from Wednesday after
school to Thursday at 7:00 p.m. The court also outlined the parties’ summer parenting
schedules. Health insurance was also outlined, as well as Father paying temporary child
support of $900 per month. The court also noted that the parties agreed that Mother
would be responsible for her own car insurance.
{¶15} The August 19, 2022 entry further provided that: “It is the intention of the
parties that subject to an unforeseen circumstance that would rise to a level of a true
change in circumstances and/or the wellbeing of the children at either residence, the
terms and conditions as set forth herein are intended to be incorporated into the Final
Decree of Divorce.” A final hearing was scheduled for September 26, 2022.
{¶16} The court continued a number of hearings and ultimately scheduled the final
hearing for divorce. It refused further pretrials or mediations.
{¶17} On May 4, 2023, Mother filed a contempt motion alleging Father interfered
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with her parenting time from March 31, 2023 to April 2, 2023. She alleged that Father
refused to relinquish the children during spring break, which was her designated holiday
as per the standard visitation order.
{¶18} On May 11, 2023, Mother filed a motion for interim attorney fees and
expenses. She requested $20,000 to hire experts, pay appraisers, and conduct
depositions to protect her marital interests. Father opposed the motion, asserting it was
inequitable to award fees to Mother because she could not show he committed egregious
conduct warranting an award. He also noted that Mother had a well-paying job, did not
disclose any experts or invoices for their services, and never sought to modify support.
He further explained that the spring break was not during the time Mother alleged
visitation interference.
{¶19} On June 5, 2023, the court denied Mother’s motion for fees. The court noted
that counsel implied at a pretrial hearing that one appraiser would be hired to value all
real and personal property. The court stated that if plans changed and counsel was more
specific on experts and costs, it would be considered. The court indicated that it would
hear the motion for contempt on August 2, 2023.
{¶20} On June 22, 2023, Mother filed a motion for contempt, a motion for finding
financial misconduct, renewed her motion for interim attorney fees, a motion for sanctions,
and a request for an emergency hearing. Mother alleged that Father spent $258,810 of
the $300,000 he deposited into a bank account, despite a court order prohibiting him from
depleting marital assets.
{¶21} The court held a hearing and issued a judgment entry on August 9, 2023.
The court found the evidence undisputed that Father violated the court’s orders to
preserve assets. The court ordered that Father transfer the remaining $14,000 from the
Gulfport proceeds to his attorney’s trust account.
{¶22} The court held in abeyance any ruling on financial misconduct or sanction
for Father’s contempt violation. The court held that these matters would be addressed at
the final hearing. The court denied Mother’s request for interim attorney fees, explaining
that Mother failed to provide specific information on experts or their costs.
{¶23} The court also took exception to a written comment by Mother’s attorney
that the court failed Mother. The court struck the attorney’s comments from the record
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and cautioned that it would impose sanctions if further baseless and unsupported
assertions were made.
{¶24} On August 14, 2023, Mother’s counsel filed a motion to disqualify the judge.
The Ohio Supreme Court denied the motion.
{¶25} On August 28, 2023, Father filed a motion to modify child support. He
asserted he was earning less money, he had more time to spend at home with the
children, and Mother had an increase in wages. The court granted the motion and
ordered a child support review by the child support enforcement agency.
{¶26} Mother did not object to a review, but she wanted the agency to consider
the $250,000 Gulfport payment, and rents and royalties of $90,000 in 2023 as other
income. She also filed a motion in limine to prohibit the parties from calling additional
expert witnesses or presenting expert reports other than those already disclosed.
{¶27} Mother also filed a motion to enforce the August 19, 2022 agreed shared
parenting agreement. Alternatively, she requested the appointment of a GAL if the court
found the August 19, 2022 shared parenting agreement was no longer enforceable. She
also filed a trial brief outlining her position concerning the value of the real property at
issue in the case. Father also filed motions in limine to exclude Mother from presenting
certain evidence or claims.
{¶28} On October 16, 2023, the court issued preparation orders for the October
18, 2023 final hearing. The court stated that it expected to hear testimony and argument
on: Mother’s motion for contempt regarding parenting time; the parties’ temporary order
of custody; and “what, if any, ‘unforeseen circumstances that would rise to a true change
in circumstances and/or the well-being of the children at either residence’ exist which
would prevent the terms of the parties’ Shared Parenting Plan from being incorporated
into the final Decree of Divorce.” The court noted that if it declined to incorporate the
parties’ original shared parenting plan into its final divorce decree, it would interview the
children. The court further informed the parties that it expected to hear testimony about
modifying child support.
{¶29} The court also indicated that it would hear testimony about assets
concerning Father’s motion in limine if Mother did not agree to or acknowledge identified
property as pre-marital or separate. It also prohibited the parties from presenting lay or
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expert witnesses that had not been disclosed to opposing counsel.
{¶30} The final divorce trial occurred over three days, October 18, 2023,
November 28, 2023, and November 29, 2023. On November 9, 2023, Mother filed a
motion for contempt against Father, alleging that he violated the mutual restraining order
three times by using the home equity line of credit.
{¶31} On November 20, 2023, the court issued a judgment entry. The court
indicated that it would be adopting into its final divorce decree the August 19, 2022 journal
entry on the temporary orders for shared parenting. The court found no change in
circumstances warranting modification of that agreement, denied the motion to interview
the children, and denied the motion to appoint a GAL.
{¶32} On November 22, 2023, Father filed a motion requesting modification or
abolishment of the interim shared parenting plan. He acknowledged the court’s
November 20, 2023 order, but requested that the court interview the children, appoint a
GAL, and accept his affidavit concerning Mother’s disregard of the shared parenting plan.
He sought designation as the residential parent or to have equal parenting rights and
responsibilities to be detailed in an agreement or order.
{¶33} Father also filed a motion to release the oil and gas royalties. He asserted
that Mother failed to establish that she had a claim to those proceeds because some were
received before the marriage and others after their separation. He stated that he needed
the funds to maintain the financial obligations incurred during the marriage. Mother
opposed the motion.
{¶34} On November 27, 2023, the court issued a journal entry, noting that the
parties had filed cross-motions for the appointment of a GAL for the children. The court
issued an order appointing a GAL.
{¶35} On the same date, Father filed a motion to bifurcate child-related matters
from the final hearing. He requested that the court schedule a hearing on child-related
issues after the court appointed a GAL and the GAL issued a report.
{¶36} On February 15, 2024, the trial court issued its judgment entry and decree
of divorce incorporating findings of fact and conclusions of law. The court found that the
parties married on April 29, 2011, had two minor children, and separated in February
2023. The court outlined the parties’ financial issues relating to real property, personal
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property, debts, the Gulfport proceeds, spousal support, farm equipment, cattle, monies
held in the trust account of Father’s counsel, and child custody, support, visitation, tax
exemptions, and health insurance.
{¶37} Addressing custody and visitation, the court indicated that it had appointed
a GAL. The court adopted all of the GAL’s findings and recommendations, which included
Mother and Father equally sharing the children under a shared parenting plan, with Father
having parenting time on Wednesdays after school until Monday morning to school on
alternating weeks, and Wednesday after school to Friday morning on the other weeks.
The court also adopted the GAL’s recommendation that the parties divide the school’s
Easter Break long weekend because the children’s school district had no spring break.
The court further reduced the child support agency’s calculation of child support from
Father by 50 percent.
{¶38} On March 7, 2024, Mother filed a notice of appeal, asserting three
assignments of error. The first assignment of error asserts:
The Trial Court Erred in Modifying the Terms of the Parties’ Shared
Parenting Decree Without finding a Change in Circumstances contrary
to R.C. 3109.04(E)(1)(a).
{¶39} Mother asserts that the trial court cited no change of circumstances before
adopting the GAL’s recommendations and modifying the shared parenting plan, which
violated R.C. 3109.04(E)(1)(a) and our decision in Schmidt v. Schmidt, 2012-Ohio-5252
(7th Dist.). She contends that before a court can modify a shared parenting plan in a
decree, the court must find a change of circumstances and that the modification is in the
best interest of the child. She further asserts that before a court may modify a shared
parenting plan, the parties may jointly modify the term or the trial court may do so if it is
found to be in the best interest of the child.
{¶40} Mother maintains that the trial court turned the shared parenting plan into
a shared parenting decree on November 20, 2023 by making it a final order and including
it in the decree. She submits that the court was therefore required to find a change in
circumstances and that modification was in the best interest of the children before
modifying the terms of the shared parenting plan and before adopting the GAL’s
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recommended changes. Mother contends that the court held no hearing, made no such
findings, and gave her no opportunity to respond to Father’s motion to modify the shared
parenting plan. She alleges a due process violation and abuse of discretion.
{¶41} Mother also asserts that the court violated Civ.R. 75(F) by failing to
incorporate the shared parenting plan from November 20, 2023 into the divorce decree
and by failing to find that no change in circumstances existed and the plan was in the
children’s best interests. Mother submits that the court also violated contract law because
the unambiguous intent of the court and the parties was to incorporate the August 19,
2022 shared parenting plan into the divorce decree. She asserts that the court abused
its discretion by failing to do so and allowing the GAL to make changes.
{¶42} Civ.R. 75(F) is entitled “Judgment” and provides in relevant part:
The provisions of Civ.R. 55 shall not apply in actions for divorce,
annulment, legal separation, or civil protection orders. For purposes of
Civ.R. 54(B), the court shall not enter final judgment as to a claim for
divorce, dissolution of marriage, annulment, or legal separation unless one
of the following applies:
(1) The judgment also divides the property of the parties, determines
the appropriateness of an order of spousal support, and, where applicable,
either allocates parental rights and responsibilities, including payment of
child support, between the parties or orders shared parenting of minor
children;
(2) Issues of property division, spousal support, and allocation of
parental rights and responsibilities or shared parenting have been finally
determined in orders, previously entered by the court, that are incorporated
into the judgment;
(3) The court includes in the judgment the express determination
required by Civ.R. 54(B) and a final determination that either of the following
applies:
(a) The court lacks jurisdiction to determine such issues;
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(b) In a legal separation action, the division of the property of the
parties would be inappropriate at that time.
{¶43} The trial court issued the November 20, 2023 judgment entry after the first
day of the divorce trial and adopted its August 19, 2022 temporary order which included
the parties’ negotiated shared parenting plan. However, the court made no
determinations regarding property division, spousal support, or child support in the
November 20, 2023 judgment entry. Thus, Civ.R. 75(F)(1) did not apply to make this
judgment a final judgment.
{¶44} Further, the court did not incorporate into its judgment entry any prior final
orders of property division, spousal support, or parental rights and responsibilities or a
shared parenting plan. While the court did adopt the August 19, 2022 entry regarding
shared parenting, it was a temporary order. Accordingly, Civ.R. 75(F)(2) does not apply
to make the November 20, 2023 judgment entry a final judgment.
{¶45} Finally, the court did not include the express determination language in its
November 20, 2023 judgment entry. Thus, the November 20, 2023 judgment was not a
final judgment under Civ.R. 75(F)(3).
{¶46} Accordingly, the November 20, 2023 judgment was not a final judgment and
the court was free to revise it at any time prior to its final judgment of divorce.
Consequently, Mother’s assertions that the court could not modify the November 20, 2023
judgment are without merit.
{¶47} The court could therefore revise the shared parenting plan in its February
15, 2024 judgment and divorce decree. During the divorce trial, Appellee’s motion for a
GAL and modification of the shared parenting plan were briefly addressed. On the first
day of trial, the court explained that it previously adopted its temporary order on shared
parenting, but it would not incorporate it into the final divorce decree if unforeseen
circumstances arose affecting the best interests of the children. (Oct. 18, 2023 Tr., 298).
The court requested that the parties explain if they wanted the temporary shared
parenting plan adopted as a final order, or the circumstances that changed if they did not.
(Oct. 18, 2023 Tr., 298). Each party provided explanations.
{¶48} Mother’s counsel asserted that a shared parenting plan was already in place
because the court stated that it would incorporate the plan into the divorce decree. (Oct.
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18, 2023 Tr., 308). Counsel reasoned that Father had to show a true change of
circumstances before a modification of the shared parenting plan could occur. (Oct. 18,
2023 Tr., 309). She maintained that Father’s only reason requesting modification was
because he and Mother did not get along, which did not constitute a true change of
circumstances to warrant modification. (Oct. 18, 2023 Tr., 312).
{¶49} Father’s counsel disputed the standard as one for a change of
circumstances. (Oct. 18, 2023 Tr., 318). He submitted that the standard was whether
the modification was in the best interests of the children. (Oct. 18, 2023 Tr., 318).
{¶50} The court stated that it would schedule a second trial date and hold a pretrial
telephonic conference to address issues that had arisen, including custody. (Oct. 18,
2023 Tr., 324-325).
{¶51} On the second day of trial, the court noted that following its November 20,
2023 order, Father filed a motion to appoint a GAL and he requested bifurcation. (Nov.
28, 2023 Tr., 637). The court stated that it was not changing its order, but the court was
unsure it “can prevent people from asking for a Guardian.” (Nov. 28, 2023 Tr., 639).
Mother’s counsel stated she had not seen the court’s order or Father’s motion for a GAL,
but she could “wing it” when the court indicated it would give her time to review the filings.
(Nov. 28, 2023 Tr., 640).
{¶52} Mother’s counsel argued that the trial court could not make further orders
concerning the children because its November 20, 2023 order was a final order. Mother’s
counsel stated she could get law together to support her position.
{¶53} On November 27, 2023, the court issued a journal entry stating that cross-motions for the appointment of a GAL were pending. (Nov. 27, 2023 J.E.). The court
appointed a GAL and outlined the GAL’s duties, which included conducting an
investigation and preparing a written report with recommendations to the court. (Nov. 27,
2023 J.E.).
{¶54} The journal entry ordered the GAL to file a report and make it available to
the parties for inspection “no less than seven (7) days before the final hearing unless the
due date is extended by the court.” (Nov. 27, 2023 J.E.). The court indicated that it would
consider the GAL’s recommendations only when the report was admitted as an exhibit.
(Nov. 27, 2023 J.E.). The journal entry further ordered the GAL to appear at all hearings
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and proceedings. (Nov. 27, 2023 J.E.).
{¶55} On November 29, 2023, the last day of the divorce trial, no child-related
issues were discussed.
{¶56} The GAL apparently conducted an investigation, and issued a report,
although the report is not in the record before this Court. The court adopted the GAL’s
recommendations in its February 15, 2024 judgment entry and decree of divorce.
{¶57} The trial court violated due process and abused its discretion when it
considered the GAL's findings without providing the parties an opportunity to cross-examine the GAL. See Schill v. Schill, 2004-Ohio-5114, ¶ 59 (11th Dist.) (just as in a
permanent custody determination, due process requires that the court in a divorce action
grant the parties a right to cross-examine a GAL about the GAL’s report and its
recommendations). “Without these safeguards, there are no measures to ensure the
accuracy of the information provided and the credibility of those who made statements.”
In re Hoffman,
2002-Ohio-5368, at ¶ 25.
{¶58} In its February 15, 2024 judgment entry and decree of divorce, the court
stated that it received and reviewed the GAL’s report on February 14, 2024. The court
issued its judgment entry and divorce decree one day after receiving the GAL report. The
docket shows no hearing or opportunity for the parties to object to the report or to request
a hearing.
{¶59} Further, the court incorrectly stated that it received cross-motions for a GAL
appointment as it had denied Mother’s request for a GAL well before the November 27,
2023 order. Moreover, Father had filed a motion to bifurcate the GAL and child-related
issues from the divorce trial and he requested that the court hold a hearing after the GAL
report was issued. The court instead issued its final judgment and divorce decree one
day following its receipt and review of the GAL report.
{¶60} For these reasons, Mother’s first assignment of error has merit and is
sustained.
{¶61} In her second assignment of error, Mother asserts:
The Trial Court abused its discretion by failing to issue a decision on
financial misconduct, impose sentence and sanctions against the
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husband after finding him in contempt, and provide financial
compensation to the wife and award her attorney fees.
{¶62} Mother asserts that immediately before filing for divorce, Father removed
$50,000 from the parties’ joint bank account and deposited it into a separate account.
She further asserts Father also deposited $250,000 in proceeds from Gulfport into a
separate account for reclamation on their 99 acres of land.
{¶63} Mother explains that at the March 23, 2022 temporary orders hearing, the
court ordered Father to deposit the $250,000 and any other future proceeds into his
counsel’s trust account until the final hearing or a future order. Mother complains that
Father never deposited the $250,000 and she filed a contempt motion in May 2022 based
on his failure to comply with the court’s order. She also notes that she referenced the
$250,000 in her motion for contempt over shared parenting and in her motion for expert
and legal fees. The court overruled her request for equal access to these funds.
{¶64} Mother contends that she filed another motion for contempt after Father
spent $258,810 of the funds he was supposed to deposit into his counsel’s trust account.
She requested a finding of contempt and financial misconduct, and the award of fees and
sanctions. Mother submits that at the contempt hearing, Father admitted removing
$50,000 from their joint account before filing for divorce, and he admitted he never
deposited the $250,000 into his counsel’s trust account. Mother asserts that Father
stated that he had only $40,000 left as he spent that money on vacations, expenses, child
support payments, and bills.
{¶65} Mother cites the court’s August 9, 2023 judgment entry finding Father in
contempt. She submits that the court deferred sentencing and sanctions until a final
hearing and informed the parties it would rule on financial misconduct at the final hearing,
but it never did.
{¶66} Mother asserts that the trial court abused its discretion by failing to issue a
decision on financial misconduct and failing to impose a sanction on Father for contempt.
She cites R.C. 3105.171(E)(4) governing financial misconduct in domestic relations cases
and our decision in Lunger v. Lunger, 2017-Ohio-9008 (7th Dist.) for determining whether
financial misconduct has occurred. She also cites Cooper v. Cooper,
14 Ohio App.3d
327 (8th Dist. 1984), where the Eighth District held that a contempt adjudication without
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a sanction is not a final appealable order. She notes that civil contempt has also
traditionally included compensation to the injured party.
{¶67} Mother submits that without imposing a contempt sanction or a ruling on
financial misconduct, the trial court allowed Father to avoid consequences for blatantly
disregarding the court’s orders and subjected her to hardship and distress by not making
her whole financially as he was spending joint money and she was unable to afford
experts for the divorce.
{¶68} Neither party challenges the court’s finding of contempt against Father.
Rather, Mother challenges the court’s failure to impose a sanction for Father’s contempt
and the court’s failure to address her motion to find Father committed financial
misconduct.
{¶69} In its August 9, 2023 contempt order, the court found undisputed evidence
that Father used the $250,000 Gulfport reclamation check it ordered into escrow for farm
equipment payments, monthly bills, child support, travel, and entertainment. (J.E. Aug.
9, 2023, 5). The court found that Father’s failure to preserve this asset violated two court
orders. The court ordered that Father deposit the remaining $14,000 of the $250,000 into
his counsel’s trust account. The court further concluded:
Without making any finding at this time whether any asset is marital and
subject to division or non-marital/separate, this Court merely seeks to
preserve ALL ASSETS to ensure an equitable division and/or distribution
for the parties once the final hearing has taken place.
(J.E. Aug. 9, 2023, 5).
{¶70} The court further stated that it was holding
in abeyance, any orders for a jail sentence or fine for Mr. Moore as a result
of the within Contempt finding. This will be addressed at the final hearing.
The court also holds in abeyance any finding of financial misconduct against
Mr. Moore, as requested by Defendant’s counsel in her Motion now before
the Court.
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(J.E. Aug. 9, 2023, 6).
{¶71} Mother’s second assignment of error lacks merit. In Cooper, 14 Ohio
App.3d at 329, the Eighth District Court of Appeals dismissed a mother’s appeal of a
contempt judgment issued for her interference with the father’s visitation rights. The court
found the mother in contempt and issued conditions under which she could purge herself
of the contempt.
Id. at 328. The court deferred imposing a sanction for contempt, allowing
the mother to purge the contempt.
Id.
{¶72} The mother appealed, but the appellate court found that it lacked jurisdiction
to address the appeal. Id. The court explained that without a sanction for contempt, it
lacked jurisdiction to review the judgment.
Id. at 329. The court relied on its decision in
Chain Bike Corp. v. Spoke 'N Wheel, Inc.,
64 Ohio App.2d 62, 64 (8th Dist. 1979), holding
that:
Contempt of court consists of two elements. The first is a finding of contempt
of court and the second is the imposition of a penalty or sanction, such as
a jail sentence or fine. Until both a finding of contempt is made and a penalty
imposed by the court, there is not a final order. The mere adjudication of
contempt is not final until a sanction is imposed.
Id.
{¶73} Similarly here, while the trial court deferred imposing a sanction for its
contempt finding against Father, the court dismissed as moot all pending motions for
contempt in its final judgment and divorce decree. (Feb. 15, 2024 J.E. 14). In the final
order, the court also addressed the monies in the trust accounts, including the $250,000
reclamation check. The court ordered the remaining $14,000 of the proceeds from that
check to be released to Mother. The court also deducted $77,168.43 as marital expenses
from the $250,000 for items Appellee paid during the pendency of the divorce action for
the property, such as property taxes, insurance, fuel, feed and farm supplies. The court
mentioned no specific sanction for contempt and made no findings concerning financial
misconduct. The court did not hold or schedule any further hearing on these issues, or
take further evidence or argument.
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{¶74} Without the court’s imposition of a sanction, we lack jurisdiction because
the court’s contempt order is not final and appealable. Chain Bike Corp., 64 Ohio App.2d
at 64. Even if we did possess jurisdiction, the trial court impliedly denied sanctions and
a finding of financial misconduct when it addressed the $250,000, awarded offsets and
credits against it, and dismissed all pending motions. Accordingly, Mother’s second
assignment of error lacks merit.
{¶75} In her third assignment of error, Mother asserts:
The Trial Court abused its discretion by improperly awarding credits
and offsets to husband, and failing to divide assets resulting in an
improper financial benefit to husband.
{¶76} Mother contends that the trial court erred in some of the credits and offsets
it granted to Father by either ignoring evidence or failing to equitably divide the assets.
She submits that this resulted in an inequitable distribution of debts and assets.
A. INCORRECT MORTGAGE AMOUNT
{¶77} Mother first asserts that the court erred in the amount it relied upon for the
outstanding mortgage. She notes that the court’s reliance on $326,776.11 as the
outstanding mortgage is significantly different from the evidence and testimony of both
parties. She submits that both parties stipulated that the mortgage as of October 1, 2023
was $303,303.54. (Nov. 29, 2023 Trial Tr., 764, 787, 842). She cites her trial exhibit 18,
which is a billing statement from FarmCredit showing that as of September 6, 2023, the
ending balance on the mortgage was $303,303.43. (Mother’s Exhibit 18). She asserts
that the court abused its discretion by substituting its own amount without explaining the
evidence it relied on for the amount.
{¶78} “A trial court has broad discretion in determining the proper grounds for
divorce, and a reviewing court will not reverse that determination absent an abuse of
discretion.” Gould v. Gould, 2021-Ohio-3493, ¶ 8 (10th Dist.), quoting Galloway v. Khan,
2006-Ohio-6637, ¶ 71 (10th Dist.). “The term ‘abuse of discretion’ connotes more than
an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary,
or unconscionable.” Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983), quoting
State v. Adams,
62 Ohio St.2d 151, 157 (1980).
Case No. 24 MO 0003
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{¶79} In its February 15, 2024 judgment entry and divorce decree, the court found
that the remaining mortgage on the property was $326,776.11. (Feb. 15, 2024 J.E., 3).
The court also found that other outstanding debt on the real estate included $16,947.60
for building loans and a line of credit for $58,135.25.
{¶80} The court did not cite support for its mortgage figure. However, Trial Exhibit
1 is a February 28, 2022 statement from FarmCredit which shows a beginning balance of
$326,776.11 as of February 1, 2022. (See Exhibit T-1 in Father’s exhibit book). Father
submitted this as an exhibit. In her trial exhibit book, Mother submitted a FarmCredit
statement dated September 6, 2023 which showed an ending principal balance of
$303,303.54. (See Exhibit 18-2 in Mother’s exhibit book).
{¶81} The court and counsel discussed these exhibits on the first day of trial. The
court asked if the parties had pretrial stipulations, and Father’s counsel indicated that he
had statements for all of the mortgage and loan balances as of February 2022. (Oct. 18,
2023 Trial Tr., 5). He explained that Mother also had balances on those loans as of
September 2023. (Oct. 18, 2023 Trial Tr., 5). He represented that neither party
challenged the validity of the statements, but each was proposing that their corresponding
balances should apply. (Oct. 18, 2023 Trial Tr., 6).
{¶82} On November 29, 2023, the final day of trial, Father testified on cross-examination that the FarmCredit mortgage was “a little over three hundred thousand, and
I don’t have the exact number.” (Nov. 29, 2023 Trial Tr., 786). When shown Mother’s
FarmCredit statement, Father stated that the statement showed an ending balance of
“$303,303.” (Nov. 29, 2023 Trial Tr., 787). When asked by Mother’s counsel if “we can
all agree that as of September, the principal balance is $303,303.54,” Father responded,
“Yes. I agree with.” (Nov. 29, 2023 Trial Tr., 787).
{¶83} It is unclear why the court relied on the February 2022 mortgage balance
since its judgment entry and decree of divorce was issued in February 2024, the court
found that the parties separated in February 2023, and the court relied on property
appraisals performed in 2023. However, the court had support in the record for the
mortgage balance figure it used, and it based its calculation on this balance, as well as
the payments Father had made up to that date while the divorce was pending. If the court
had used the updated balance provided by Mother, it would have had to subtract Father’s
Case No. 24 MO 0003
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additional payments up to this more recent time from the Mother’s equity interest. Mother
fails to show that this would have resulted in any additional recovery amounts for her.
B. CREDIT FOR EXPENSES PAID OUT OF $250,000
{¶84} Mother contends that the court abused its discretion by granting Father a
credit of $77,168.43 against the amount owed her for six categories of expenses. She
asserts that the money used by Father to pay these expenses came from the $250,000
that the court found Father in contempt for spending. She submits that this reduced her
half of the $250,000 and she was never consulted on or approved of using this money for
these expenses.
{¶85} Mother contends that the court should not have granted Father credits for
paying the marital debt pending divorce proceedings because she had no input into the
bills that were paid or how the money was spent.
{¶86} She challenges six categories of expenses that the court credited Father.
1. Trucking/labor well pad reclamation $23,120
{¶87} Mother asserts that the court’s award of this credit is an abuse of discretion
because it contradicts the court’s previous findings that no efforts were made for
reclamation and no money was used for reclamation. She also notes that the court
referred to exhibit 10n as the exhibit for the reclamation, but this exhibit is a spreadsheet
for payments toward “Cattle Building & Pond Road Construction Breakdown.” She
submits that this exhibit also lacks a date, fails to include receipts, and is contradicted by
Father’s testimony that these expenses were paid well before the divorce. (Nov. 28, 2023
Trial Tr., 569).
{¶88} Father responds that the trial court was within its discretion to find the
expenses were marital and Mother fails to provide evidence to the contrary.
{¶89} The court’s crediting to Father of $23,120 for the trucking/well pad
reclamation is questionable. While Mother is correct that the court cited to exhibit 10n,
which is entitled “Cattle Building & Pond Road Construction Breakdown,” the court’s
citation does not appear to be incorrect.
{¶90} However, during cross-examination of Father at the November 28, 2023
divorce trial, Mother’s counsel reviewed exhibit 10n with him. They discussed that it was
related to the $23,120 for which Father was requesting credit. (Nov. 28, 2023 Trial Tr.,
Case No. 24 MO 0003
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571-573). Father acknowledged that the bulk of the work on the pad was performed in
2020, but he explained that a difference existed between reclamation on the property and
removing the gravel from the well pad and relocating it somewhere else on the farm.
(Nov. 28, 2023 Trial Tr., 569). He acknowledged that the exhibit contained no receipts
and he created the document.
{¶91} Mother is correct that the court found in prior judgment entries that no efforts
were made for reclamation and no financial resources were used for reclamation. In fact,
in its most recent February 15, 2024 judgment entry, the court found that the parties “took
no effort to have the property reclaimed by any outside contractors after the estimates
they received far exceeded the amount of reclamation funds the parties received.” (Feb.
15, 2024 J.E., 5). The court had previously found in its August 9, 2023 contempt order
that “[n]ot one cent was used to reclaim the property according to the evidence offered.”
(Aug. 9, 2023 J.E., 5).
{¶92} However, Father testified that gravel was relocated in conjunction with the
diesel fuel and oil exhibit for which he received $12,489 in credit. He testified that there
were several hundred semi-truck loads of stone on the well pad and approximately 1,000
tons of stone were removed off of the pad. (Nov. 28, 2023 Trial Tr., 577). He testified
that while the pond road referred to in his Exhibit 10n was constructed mainly in 2020,
cement work was performed to the culverts because they clogged up when it rained, so
he hired others to upgrade the cement and culvert constructed in 2020 to handle the rain.
(Nov. 28, 2023 Trial Tr., 571-573).
{¶93} The court’s reconciliation of the credit for reclamation expenses with the
finding that the parties took no effort to have the property reclaimed is problematic.
Accordingly, we remand this issue to the court for further review and explanation.
2. Property Taxes $8,375.25
{¶94} Mother challenges the court’s credit to Father of $8,375.25 in property taxes
as she asserts some of the taxes were for separate property owned by Father.
{¶95} Father provides no argument to the contrary.
{¶96} The court did credit Father with $8,375.25 in property taxes and referenced
Father’s Exhibit 10i. At the November 29, 2023 divorce trial, Mother’s counsel crossexamined Father about this and property taxes for 2022 and 2023. (Nov. 28, 2023 Trial
Case No. 24 MO 0003
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Tr., 562). Father testified that he paid both years in full over the course of the proceedings
and the taxes were paid on all of the properties. (Nov. 28, 2023 Trial Tr., 563). When
asked if he wanted credit for paying property taxes on all properties, even those he
wanted declared as separate property, Father responded:
A: Well, to be fair, that’s where the marital residence is and the buildings
and structures, and - -
Q: I think that’s very fair.
A: - - and I can’t separate the two.
Q: I agree. Can’t separate the two. So under that rationale, that - - and
you mean you can’t separate the two, you mean the marital property and
your property at this point?
A: As far as the taxes - -
Q: Sure.
A: I mean, essentially I think what you’re asking me is, you know, the
real estate I’m claiming as separate, but the house obviously she has a
stake in. Should I be charging her for those taxes, but in reality, if it was
just bare ground, the taxes would be minimal, a few hundred dollars,
because it’s signed up with CAUV. So just bare ground, really the taxes
aren’t that much.
Q. Okay.
A: When it’s enrolled in CAUV.
The house and the buildings is what causes the taxes to be as high as they
are.
(Nov. 28, 2023 Trial Tr., 563-564).
{¶97} The court provided no explanation on this issue and credited Father with
Case No. 24 MO 0003
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the full amount in taxes even though Father acknowledged that the credit for property
taxes was for payment on all properties, including his separate property. However, the
court may have given Father’s testimony full credibility that the marital house and
buildings were on the properties, which caused an increased valuation for property taxes,
which also benefited Mother. Without explanation by the court, we must remand this
issue.
3. Vehicle and Farm Insurance $5,200.87
{¶98} Mother also assigns error to the court’s decision to credit Father with vehicle
insurance and farm insurance. She asserts that Father admitted removing her from the
car insurance during proceedings, which forced her to buy her own while the divorce was
pending. She also submits that she had been paying for health insurance for the children
and Father at the cost of $280 per month and did not receive credit for this expense. She
contends that this was clear court error and an abuse of discretion.
{¶99} Father responds that Mother cannot seek credit for expenses paid during
the divorce proceedings when she never presented them during the divorce hearing.
{¶100} The court provided no explanation for crediting the vehicle and farm
insurance beyond referencing Father’s Exhibit 10 and finding the $5,200.87 claimed in
expenses and payments to be legitimate and attributable to both parties.
{¶101} Mother does not challenge the farm insurance portion of the credit.
Further, she provides no separation of the payments made by Father for farm insurance
as opposed to vehicle insurance. The court ordered Mother to obtain her own car
insurance in its August 19, 2022 temporary order. The court also ordered that Mother
obtain her own car insurance as of August 1, 2022. Since the court stated that this was
part of an agreement reached between the parties, this issue lacks merit as to Mother’s
car insurance and the credit for farm insurance.
{¶102} As to a credit for Mother providing health insurance for the children and
Father during the divorce proceedings, this assertion has merit. Mother testified at the
November 29, 2023 divorce trial that she paid $280 per month for health insurance for a
family plan. (Nov. 29, 2023 Trial Tr., 854-855). However, she testified on cross-examination that she was not sure that the payment would decrease if she removed
Father from her health insurance plan as she still would pay for a family plan to cover the
Case No. 24 MO 0003
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children. (Nov. 29, 2023 Trial Tr., 856-857). Further, the court ordered both parties to
maintain health insurance on the children and gave Father a credit on his child support
worksheet for health insurance. Mother received no credit.
{¶103} Accordingly, we remand this issue for review and explanation by the trial
court.
4. Diesel Fuel and Oil $12,489.12
{¶104} Mother asserts that the court abused its discretion by crediting Father with
a total of $12,489.12 for diesel fuel and oil it deemed a marital expense. She cites
Father’s testimony admitting that not all of the fuel was used for the farm as he used some
of it for his personal vehicle. (Nov. 29, 2023 Trial Tr., 579).
{¶105} Father did testify that a “few” of the receipts submitted in Exhibit O for
diesel fuel and oil credit were for his personal vehicle. (Nov. 29, 2023 Trial Tr., 579). He
further testified that 95% of the receipts submitted were used to actually improve the
property. (Nov. 29, 2023 Trial Tr., 579).
{¶106} It appears that the court erred in crediting the entire $12,489.12 based on
Father’s testimony. Subtracting 95% from the total results in $654.46 less credit to Father.
The court should review and apply this credit.
5. Hay, Feed, and Supplies $10,756.12
{¶107} Mother asserts that evidence fails to support the court’s credit to Father of
$10,756.12 for hay and feed expenses. She cites Father’s testimony that he included the
cost of feeding his father’s cattle and spent $2,000 for feed.
{¶108} Father testified at the November 29, 2023 trial that Exhibit 10p consisted
of expenses paid for their daughter’s horses, cattle, and sheep. (Nov. 29, 2023 Trial Tr.,
581-582). He stated that some of the expense was also for feed for his father’s cows and
he sought credit for that as well because he was reimbursed for this expense when the
calves were sold. (Nov. 29, 2023 Trial Tr., 582). He estimated that 1/4 of the total was
for feed for his Father’s cows. (Nov. 29, 2023 Trial Tr., 583).
{¶109} The court did not abuse its discretion in crediting Father with all of the
expenses in this category, except one. The court erred by failing to credit Mother with 1/8
of the feed reimbursement after Father’s dad sold the calves. Father testified that 1/4 of
the expense was used for feed for his father’s cows and he was reimbursed upon the sale
Case No. 24 MO 0003
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of the calves. Accordingly, the court should have credited Mother with 1/8 of that
reimbursement amount for that expenditure.
6. Farm Supplies $17,227.06
{¶110} Mother asserts that the court erred by crediting Father with this amount
when Father gave no detailed testimony about farm supplies. Mother notes that Father
simply agreed when his counsel asked if this expense covered “necessary maintenance,
upkeep, repair of the marital assets.” (Nov. 28, 2023 Trial Tr., 533-534).
{¶111} Mother is not accurate in her description of Father’s testimony. Preceding
the sentence Mother cites, Father’s counsel referenced Trial Exhibit T for farm supplies
and loans. When asked, Father explained that the exhibit was a:
conglomerate of the places I buy supplies from, things like for example,
chemicals to spray the fences with to keep the weeds down, supplies, an
example of that would be the building. It’s essentially an old 3-sided shed
on the hundred acres that we bought together, it was literally falling down. I
bought six posts and paid Brian Dunn to go down and essentially you know,
shore up the building so it wouldn’t fall over. Things like that.
(Nov. 29, 2023 Trial Tr., 533-534). The discussion continued between Father and
his counsel, with counsel stating:
Q. Again, this is your testimony, not mine, but I just want to understand, if I
suggested it was for the necessary maintenance, upkeep, repair of the
marital assets that we’re discussing today, is that fair?
A. Yes, it is.
Q. And if you had not done it, would it had adversely affected the value of
this marital asset?
A. Yes, it would.
(Nov. 29, 2023 Trial Tr., 534).
{¶112} Based upon Father’s testimony and the exhibit receipts, the court did not
Case No. 24 MO 0003
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abuse its discretion in crediting Father for these expenses.
{¶113} In sum, we find that remand is necessary for the court to review, analyze,
and provide explanation as to crediting Father with expenses relating to well pad
reclamation, the credit of the entire property tax amount requested by Father, and the
total expenses requested by Father for diesel fuel and oil. We further find remand
necessary for the court to review and explain why no credit was granted to Mother for
health insurance payments.
C. FAILURE TO DIVIDE FARM EQUIPMENT
{¶114} Mother contends that the court also erred by failing to place values on a
number of items and to allocate them to a party. She cites Father’s Exhibit 19 and her
Exhibit 18 and the items listed on the parties’ tax returns. She asserts that the court
abused its discretion by not dividing all of the assets when there was extensive testimony
provided.
{¶115} This assertion lacks merit. In its judgment entry, the court set forth a
section entitled “Personal Property, Cattle, Farm Equipment,” and discussed the
appraisals that each party submitted relating to the value of the property, which the court
pointed out covered the cattle and farm equipment. (Feb. 15, 2024 J.E., 9). The court
also reviewed the testimony of Father’s father, who testified that he owned the cattle and
the court ruled that this was not marital property as Father’s father owned it.
{¶116} The court further held that “all the farm equipment” was owned by both
parties and deemed it marital property. (Feb. 15, 2024 J.E., 10). The court explained
that it could not find any of it separate property since marital debt was owed on it. (Feb.
15, 2024 J.E. 10). The court further determined that the appraisals by both parties’
appraisers were reasonable and it used the median of the two, which equaled $189,300.
(Feb. 15, 2024 J.E. 10). The court deducted the loans on four pieces of the farm
equipment and found that the total equity in the personal property minus the loans was
$80,395. (Feb. 15, 2024 J.E. 11). The court divided this by half and awarded Father all
of the farm equipment and the debt, after he paid Mother her one-half equity interest of
$40,197.50. The court further held that the parties were each entitled to keep all other
personal property not specifically mentioned.
{¶117} We find that the court provided sufficient explanation and analysis for its
Case No. 24 MO 0003
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findings. Mother does not point to specific items that the court did not address or analyze.
She instead refers us to the parties’ tax returns and a list of 169 items in Father’s Exhibit
19 that he states are fixtures that he should keep with no value placed on them. That is
the extent of her assertion on this issue. It is not this Court’s job to sift through all of the
items when Mother fails to specify them and the court did not discuss them.
D. $50,000 REMOVED FROM JOINT BANK ACCOUNT
{¶118} Finally, Mother asserts that the court abused its discretion and committed
clear error by failing to address a joint account the parties held with Wesbanco. She
contends that Father withdrew $50,000 from this account just before filing for divorce.
She notes that Father admitted taking this action and the court failed to address the issue,
even when she filed a motion requesting return of the money.
{¶119} She maintains that the court addressed the $10,000 in cash that she took
from the parties’ safe during the same period and reduced her overall award by $5,000.
Mother concedes that both parties withdrew marital funds, but only she was made to
repay the funds. She asserts that the court should have awarded her $25,000 for her
share of the $50,000 Father removed from the joint account.
{¶120} Father responds that both parties were struggling with finances even
before divorce proceedings commenced. He blames Mother’s spending habits and notes
that he was solely responsible for paying the marital obligations during the pendency of
the divorce proceedings.
{¶121} Mother is correct that Father testified at the August hearing that he
deposited $50,000 into the parties’ joint bank account at Wesbanco. (Aug. 2, 2023 Tr.,
80). He testified that the $50,000 was left over from oil and gas money from 2021 and
other monies, such as his paycheck and Mother’s paycheck. (Aug. 2, 2023 Tr. 80, 118).
{¶122} Mother’s counsel reviewed debits made from the account where Father
admitted that he withdrew funds. (Aug. 2, 2023 Tr. 80-83). Father claimed that this
money was from proceeds from his separate property.
{¶123} The court did not directly address this dispute in its judgment entry and
divorce decree and it is uncertain if the court indirectly addressed the issue in its credits,
offsets and property settlement for the parties. Thus, this issue requires remand for
review and clarification.
Case No. 24 MO 0003
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{¶124} In summary, we find merit to Mother’s first assignment of error and part of
her third assignment of error. We find no merit to her second assignment of error.
{¶125} Accordingly, we reverse the trial court’s judgment and remand this case
for the court to review and provide support and analysis on its decision to modify the
shared parenting agreement after providing the parties an opportunity to cross-examine
the GAL as to the GAL report. The court shall also reconsider and provide support and
analysis on the credits it chooses to provide Father and Mother, if any, as to the well pad
reclamation, the entire amount of property taxes, the reimbursement of feed for the calves
of Father’s dad, and the entire amount requested for diesel fuel and oil expenses. The
court shall also review and explain its decision for not crediting Mother with health
insurance payments. The trial court may modify its judgment entry as necessary to
address these issues.
{¶126} Finally, we reverse and remand this case for the trial court to review and
determine the assertions concerning the $50,000 removed from the parties’ joint account.
Waite, J., concurs.
Dickey, J., concurs.
Case No. 24 MO 0003
[Cite as Moore v. Moore, 2025-Ohio-88.]
For the reasons stated in the Opinion rendered herein, Appellant’s first assignment
of error and part of the third assignment of error have merit and are sustained. It is the
final judgment and order of this Court that the judgment of the Court of Common Pleas,
Domestic Relations Division of Monroe County, Ohio, is reversed. We hereby remand
this matter to the trial court for further proceedings according to law and consistent with
this Court’s Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
