[Cite as Oyler v. Oyler, 2011-Ohio-4390.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
MICHAEL J. OYLER                               :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CA-00065
HEIDI K. OYLER                                 :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Family Court Division,
                                                   Case No. 2009DR00463

JUDGMENT:                                          Affirmed in part and Vacated and
                                                   Remanded in part


DATE OF JUDGMENT ENTRY:                            August 29, 2011



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DAVID S. AKE                                       HEIDI K. OYLER
101 Central Plaza South, Ste. 600                  3718 Moonbeam Circle N.W.
Canton, OH 44702                                   Canton, OH 44708
[Cite as Oyler v. Oyler, 2011-Ohio-4390.]


Gwin, P.J.

        {¶1}     Defendant-appellant Heidi K. Oyler appeals a judgment of the Court of

Common Pleas, Domestic Relations Division, of Stark County, Ohio, which granted a

divorce to appellant and plaintiff-appellee Michael Oyler, allocated parental rights and

responsibilities, and divided the marital assets between the parties. Appellant assigns

twelve errors to the trial court:

        {¶2}     “I. THE COURT ERRED IN GIVING SOLE CUSTODY TO FATHER,

MICHAEL J. OYLER WITHOUT GIVING REASON NOR (sic) SHOWING EVIDENCE IN

THE FINDINGS OF FACT TO REMOVE THE ALLOCATED PARENTAL RIGHTS

FROM THE MOTHER. THUS, THE COURT’S ULTIMATE ERR (sic) IS IN NOT SAFE-

GUARDING THESE CHILDREN BY GRANTING CUSTODY TO THE FATHER.

        {¶3}     “II. THE COURT ERRED BY NOT FOLLOWING A COURT ORDER TO

HAVE THE GAL, SUSAN HULIT-BURNS SUPPLEMENT HER FINAL REPORT AFTER

HEARING HEIDI K. OYLER’S TESTIMONY.

        {¶4}     “III. THE COURT ERRED BY FAILING TO GIVE M S O (AGE 14) AN IN-

CAMERA INTERVIEW WITH JUDGE DAVID STUCKI AS ORDERED BY THE COURT.

        {¶5}     “IV. THE COURT ERRED BY TAKING THE PARTIES’ CHILDREN FROM

THEIR MOTHER BY A NO-CONTACT ORDER WITHOUT DUE PROCESS IN

DECEMBER 2009.

        {¶6}     “V. THE COURT ERRED IN NOT ALLOWING INTERIM ORDERS TO BE

SET FOR CHILD SUPPORT NOR (sic) SPOUSAL SUPPORT DURING THE TWO

YEAR DIVORCE TRIAL.
Stark County, Case No. 2011-CA-00065                                   3


      {¶7}   “VI. THE COURT ERRED BY INTERFERING WITH CIVIL RIGHTS BY

ORDERING THE PARTIES’ CHILDREN TO GO TO PUBLIC SCHOOL WHILE THEY

WERE BEING HOME-SCHOOLED, LEGALLY AND PROPERLY REGISTERED.

      {¶8}   “VII. THE COURT ERRED IN ADOPTING THE RECOMMENDATIONS

OF THE GAL, ATTORNEY SUSAN HULIT-BURNS AND PSYCHOLOGIST, DR. MARK

G. TULLY AFTER BEING MADE AWARE OF THEIR INVESTIGATIONS WITH THE

SUPREME COURT OF OHIO AND THE OHIO STATE BOARD OF PSYCHOLOGY

AND AFTER THE DEFENDANT’S TESTIMONY OF THEIR UNETHICAL AND

BLATANT MISCONDUCT.

      {¶9}   “VIII. THE COURT ERRED IN DISMISSING ALL HEARINGS WHICH

WERE GRANTED BY MOTION TO DEFENDANT: TWO (2) CONTEMPT OF COURT

CHARGES,     DISCOVERY,    AN   IMMEDIATE   REVIEW   AND   A   TEMPORARY

SUSPENSION OF VISITATION. ALL OF WHICH NEVER TOOK PLACE.

      {¶10} “IX. THE COURT ERRED IN NOT GRANTING DEFENDANT HER

SHARE OF EQUITY IN THE MARITAL PROPERTY. ALSO, ERR (sic) OCCURRED IN

NOT REQUIRING PLAINTIFF TO PAY FOR INDEBTEDNESS CAUSED BY HIS LACK

OF CONTRIBUTION TO HIS FAMILY.

      {¶11} “X. THE COURT ERRED BY NOT REQUIRING PLAINTIFF TO PAY ONE

HALF OF INCOME TAX REFUNDS RETAINED EXCLUSIVELY BY PLAINTIFF FOR

TAX YEARS 2008 AND 2009.

      {¶12} “XI. THE COURT ERRED IN NOT ALLOWING DEFENDANT TO

TESTIFY IN THE JULY, 2010 TRIAL.       WHEREAS THE COURT ALLOWED THE

PLAINTIFF TO TESTIFY.
Stark County, Case No. 2011-CA-00065                                                     4


       {¶13} “XII. THE COURT ERRED IN NOT RETURNING THE DEFENDANT’S

NAME BACK TO ITS ORIGINAL STATE: HEIDI KITRINKA HICKMAN.”

       {¶14} The record indicates the parties were married in 1995 and produced three

children, all minors at the time of the final trial. Appellee also adopted appellant’s two

children from a prior marriage; these children are emancipated.

       {¶15} Our standard of reviewing decisions of a domestic relations court is

generally the abuse of discretion standard, see Booth v. Booth (1989), 44 Ohio St. 3d

142, 541 N.E.2d 1028. The Supreme Court made the abuse of discretion standard

applicable to alimony orders in Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 450

N.E.2d 1140; to property divisions in Martin v. Martin (1985), 18 Ohio St. 3d 292, 480

N.E.2d 1112 ; to custody proceedings in Miller v. Miller (1988), 37 Ohio St. 3d 71, 523

N.E.2d 846; and to decisions calculating child support, see Dunbar v. Dunbar, 68 Ohio

St. 3d 369, 533-534, 1994-Ohio-509, 627 N.E. 2d 532. The Supreme Court has

repeatedly held the term “abuse of discretion” implies the court’s attitude is

unreasonable, arbitrary or unconscionable, Blakemore, supra, at 219. When applying

the abuse of discretion standard, this court may not substitute our judgment for that of

the trial court, Pons v. Ohio State Med. Board, (1993), 66 Ohio St.3d 619, 621 614

N.E.2d 748.

                                                III.

       {¶16} In her third assignment of error, appellant argues the trial court erred in

failing to interview the party’s fourteen year old son in-camera.

       {¶17} R. C. 3109.04 as in effect when this case was tried provides the court may

in its discretion, or, if requested by either party, shall conduct an interview in chambers
Stark County, Case No. 2011-CA-00065                                                      5


with any or all of the children. The court may consider the wishes and concerns of the

child as expressed in the interview as a factor in allocating parental rights. Appellant

moved the court to conduct an in camera interview with the fourteen year old, and the

court sustained the motion without scheduling the interview.

       {¶18} The record does not demonstrate the interview ever took place, although it

also does not indicate that the issue was brought to the trial court’s attention. Use of

the word “shall” indicates the legislature intended the interview to be mandatory if

requested by the parties. See, e.g., Bauer v. Bauer (June 30, 1997), Warren App. No.

CA97-01-003. We find the court erred in not interviewing the child in camera.

       {¶19} The third assignment of error is sustained. The court’s determination of

parental rights and responsibilities is vacated.

                                                   I.

       {¶20} In her first assignment of error, appellant urges the trial court erred in

naming appellee the residential parent of the children, and did not make findings of fact

to justify its decision. She urges the court’s determination is against the manifest weight

of the evidence.

       {¶21} The trial court ordered the parties to submit proposed findings of fact and

conclusions of law, but the court did not adopt either proposal and made few findings in

its judgment entry. The court specifically found it was in the best interest of the children

that appellee be granted custody of the minor children. It does not appear either party

moved the court for further findings of fact and conclusions of law. However, the court

should not have journalized a final decision regarding which parent should be the

residential parent until it had interview the child, see III supra.
Stark County, Case No. 2011-CA-00065                                                    6


      {¶22} The first assignment of error is premature because we vacate the court’s

decision.

                                               II.

      {¶23} In her second assignment of error, appellant notes at the final hearing, the

court directed the guardian ad litem to supplement her report after hearing appellant’s

testimony. The record does not contain any reports filed after the hearing.

      {¶24} Appellant submitted a DVD of a concert appellee permitted the children to

attend. She alleged the concert was inappropriate and dangerous. The court received

the DVD into evidence, and submitted it to the guardian after the hearing. The court

stated it would listen to the guardian ad litem, and if she believed the court should

reconvene at some later point, the court would consider doing so. The court also noted

the guardian ad litem was supposed to be coming back to the hearing, but the partial

transcripts before us do not show she was called to testify further. Appellant did not ask

the court to continue the hearing until the guardian ad litem was able to review the DVD.

      {¶25} The trial court heard appellant’s testimony and accepted the DVD.           It

entered its final judgment without a supplemental report from the guardian ad litem, and

we must presume the court concluded the guardian’s input was unnecessary.

      {¶26} The second assignment of error is overruled.

                                               IV.

      {¶27} In her fourth assignment of error, appellant argues the trial court erred in

entering a no-contact order without due process in December 2009.

      {¶28} On December 14, 2009, the trial court referred the matter to the Stark

County Department of Job & Family Services regarding allegations of abuse, neglect
Stark County, Case No. 2011-CA-00065                                                      7


and dependency, based in part on the guardian ad litem’s report citing serious concerns

by and about both parents. The court found the guardian ad litem was required by law

to refer the matter to the Job & Family Services for investigation. The court further

stated: “Given that these parties have not complied with the orders made to safeguard

these children, neither party shall have any contact with these children pending further

court order.” The trial court set a review of the no-contact order for December 23, 2009,

at 8:30 a.m., and noted the parties’ rights pursuant to R.C. 2705.

       {¶29} On December 24, 2009, after the investigation, the trial court lifted the no-

contact order as to appellant. We conclude the court accorded appellant due process

consistent with its obligation to safeguard the children.

       {¶30} The fourth assignment of error is overruled.

                                                V.

       {¶31} In her fifth assignment of error, appellant argues the trial court erred in not

setting interim orders for child support and spousal support during the two years the

matter was pending before the court.

       {¶32} On May 9, 2009, a magistrate conducted a hearing on child support and

spousal support. The magistrate issued no support orders, finding neither party was

employed. Appellant did not object to the magistrate’s report, nor did she move for a

modified interim order at a later time. We find appellant waived any error. See Civ. R.

53(D)(3)(iv).

       {¶33} The fifth assignment of error is overruled.
Stark County, Case No. 2011-CA-00065                                                    8


                                               VI.

      {¶34} In her sixth assignment of error, appellant argues the trial court interfered

with the parties’ rights in ordering that the children be sent to public school instead of

being home schooled.

      {¶35} As an initial matter, we note the final judgment entry of divorce in this

instance does not specifically set forth any orders regarding the home school/public

school issue raised by appellant. While the issue may have been part of the trial court’s

temporary orders, such orders must generally be treated as having been merged into

the final decree. See, e.g., Colom v. Colom (1979), 58 Ohio St. 2d 245, syllabus. As

such, there appears to be no final mandate from the trial court requiring public school

enrollment for any of the children, as appellant maintains.

      {¶36} Moreover, the general rule in Ohio is that the custodial parent may choose

the schools to which he or she will send the children of the marriage. See Lawson v.

Lawson, Lawrence App. No. 01Ca25, 2001-Ohio-2640, citing Smith v. Smith (December

28, 1999), Franklin App. No. 98AP1641.        Under the circumstances of the present

appeal, our sustaining of the third assignment of error renders any issue of school

choice premature, as the results of the in camera interview may alter the trial court’s

decision concerning custody.

      {¶37} The sixth assignment of error is overruled.

                                               VII.

      {¶38} In her seventh assignment of error, appellant argues the trial court erred in

adopting the recommendations of the guardian ad litem and the psychologist because

appellant testified about their blatantly unethical behavior and misconduct.
Stark County, Case No. 2011-CA-00065                                                   9


      {¶39} Appellant filed a formal complaint with the Office of Disciplinary Counsel of

the Ohio Supreme Court, stating the guardian ad litem’s reports and recommendations

were negligent, and her behavior was willful and reckless. Appellant also filed a formal

complaint with the Ohio State Board of Psychology, alleging the court-appointed

psychologist’s report and recommendations are false, fraudulent, deceitful, unethical,

unprofessional and misrepresentative in the practice of psychology. The record does

not inform this court how the grievances were resolved. However, this court could not

find in the extensive record whether appellant actually moved the court to strike any of

the reports or to remove either the guardian ad litem or the court’s psychologist and

replace them others. She did not secure an expert to challenge their recommendations.

      {¶40} It is well-established that a trial court is presumed to know the applicable

law and apply it accordingly. See Bush v. Signals Power & Grounding Specialists, Inc.,

Richland App. No. 08 CA 88, 2009–Ohio–5095, at paragraph 17. Further, in a bench

trial, the trial court is presumed to consider only reliable, relevant, and competent

evidence unless it affirmatively appears to the contrary. State v. Bays (1999), 87 Ohio

St.3d 15, 28, 716 N.E.2d 1126, citations deleted. The questions of weight and credibility

of evidence are left to the discretion of the trial court. See Seasons Coal v. City of

Cleveland (1984), 10 Ohio St.3d 77, 461 N.E.2d 1273. We must assume the court was

mindful of appellant’s challenges when determining the weight and credibility to give to

the reports of the psychologist and guardian ad litem.

      {¶41} We find no error in admitting the testimony and reports, but the court

should have interviewed the 14 year old child before evaluating the evidence and

determining which party should be the residential parent. See III supra.
Stark County, Case No. 2011-CA-00065                                                    10


       {¶42} The seventh assignment of error is overruled as to admitting the evidence

and premature as to adopting the recommendations.

                                               VIII.

       {¶43} In her eighth assignment of error, appellant argues the trial court

dismissed two contempt of court charges, a request for discovery, a motion for

immediate review, and a motion for temporary suspension of visitation.

       {¶44} The record indicates some motions had already been litigated, and other

motions were dismissed for failure to prosecute, because appellant did not accomplish

service. We find based on the record, the trial court did not err in dismissing the various

motions.

       {¶45} The eighth assignment of error is overruled.

                                               IX.

       {¶46} In her ninth assignment of error, appellant argues the trial court did not

grant her a share of equity in a marital property, and did not require appellee to pay for

the indebtedness caused by his lack of contribution to his family during the pendency of

the divorce.

       {¶47} On August 28, 2009, appellee purchased appellant’s share of the equity in

the marital residence. The final entry of divorce ordered that appellee should receive the

marital home subject to any mortgage.

       {¶48} The parties had their personal property appraised. The trial court attached

to its judgment entry an extensive list of the parties’ assets and debts, and assigned

each to either the appellant or appellee. It ordered appellee to pay to the appellant

$3,140.50 in order to equalize the division of assets.
Stark County, Case No. 2011-CA-00065                                                      11


           {¶49} Appellant urged the court to allocate more of the debt to appellee

because, she alleged, he willfully failed to assist in the support of the family during the

pendency of the divorce. However, there was no interim order of support, see V., supra.

A trial court has discretion to fashion an equitable division of property, and the Ohio

Supreme Court has reminded us “equitable” is not necessarily “equal”. Kaechele v.

Kaechele (1988), 35 Ohio St. 3d 93, 95, 518 N.E.2d 1197. The court’s entry indicates it

attempted to divide the assets and debts of the marriage evenly between the parties.

We find the trial court did not err.

           {¶50} The ninth assignment of error is overruled.

                                                  X.

           {¶51} In her tenth assignment of error, appellant argues the trial court erred in

not requiring appellee to give her half of the income tax refunds for the years 2008 and

2009. Appellee suggests this court cannot review this assignment of error because the

transcript of the hearing where the matter was discussed has not been filed.

           {¶52} The appellant has the obligation to demonstrate the error in the record.

Where the record does not demonstrate error, this court presumes the regularity of the

proceedings before the trial court. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d

197, 400 N.E.2d 384.

           {¶53} The tenth assignment of error is overruled.

                                                  XI.

           {¶54} In her eleventh assignment of error, appellant argues the court erred in not

permitting her to testify in the July 26, 2010 trial, even though it allowed appellee to

testify.
Stark County, Case No. 2011-CA-00065                                                     12


         {¶55} The matter was tried over three days, on December 14, 2009, July 26,

2010, and January 25, 2011. The record does not demonstrate the court refused to

allow appellant to testify at the July hearing, and she did testify at various points in the

trial.

         {¶56} The eleventh assignment of error is overruled.

                                                XII.

         {¶57} In her twelfth assignment of error, appellant argues the trial court erred in

not restoring her prior name.

         {¶58} The record shows appellant brought this matter to the court’s attention in

her handwritten closing statements submitted after trial. Her statement indicates the

appellee had disparaged her good name, and she asked the court to restore her name

and her reputation as well, by crafting a “creative” judgment.

         {¶59} We agree with appellant the court should have restored her name, and we

sustain the twelfth assignment of error.
Stark County, Case No. 2011-CA-00065                                                  13


      {¶60} For the foregoing reasons, the judgment of the Court of Common Pleas,

Domestic Relations Division, of Stark County, Ohio, is affirmed in part, and vacated as

to the determination of which party should be the residential parent. The court must also

restore appellant’s former name. The matter is remanded to the court for further

proceedings in accord with law and consistent with this opinion.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. JOHN W. WISE

                                             _________________________________
WSG:clw 0719                                 HON. JULIE A. EDWARDS
             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


MICHAEL J. OYLER                            :
                                            :
                       Plaintiff-Appellee   :
                                            :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
HEIDI K. OYLER                              :
                                            :
                                            :
                   Defendant-Appellant      :         CASE NO. 2011-CA-00065




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Domestic Relations Division, of Stark County,

Ohio, is affirmed in part and vacated as to the determination of which party should be

the residential parent. The court must also restore appellant’s former name. The cause

is remanded to the court for further proceedings in accord with law and consistent with

our opinion. Costs to be split between the parties.




                                                _________________________________
                                                HON. W. SCOTT GWIN

                                                _________________________________
                                                HON. JOHN W. WISE

                                                _________________________________
                                                HON. JULIE A. EDWARDS
