[Cite as Hall v. Hall, 2010-Ohio-4818.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




RYAN HALL,                                                CASE NO. 6-10-01

        PLAINTIFF-APPELLEE,

        v.

SHERYL R. HALL,                                             OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Hardin County Common Pleas Court
                            Domestic Relations Division
                           Trial Court No. 2007 3144 DRA

                                      Judgment Affirmed

                             Date of Decision: October 4, 2010




APPEARANCES:

        John C. Filkins, for Appellant

        Howard A. Elliott, for Appellee
Case No. 6-10-01


PRESTON, J.

       {¶1} Defendant-appellant, Sheryl R. Hall (hereinafter “Sheryl”), appeals

the Hardin County Court of Common Pleas’ judgment entry granting plaintiff-

appellee’s, Ryan L. Hall (hereinafter “Ryan”), complaint for divorce. For the

reasons that follow, we affirm.

       {¶2} Sheryl and Ryan were married on April 29, 1995. Two children

were born as issue of the marriage: Shelby Hall (born in 1998) and Nolan Hall

(born in 2002). The parties separated in August of 2006. At the time the parties

separated, they were owners of real estate located at 450 East State Road, Elida,

Ohio, which had been their marital residence. This house was built in 2000 during

their marriage, and the cost of construction and acquisition of the building lot was

around $200,000.00. Subsequently, the house was sold in 2006 for $190,000.00,

and after discharging the existing mortgage on the property and a home equity

loan, the balance of the sale and remaining equity equaled $68,000.00. This

amount remains in escrow pending disposition by this Court.

       {¶3} Ryan filed a complaint for divorce on October 12, 2007, and on

December 12, 2007, Sheryl filed a counterclaim for divorce. A guardian ad litem

(hereinafter “GAL”) was appointed for purposes of investigating and reporting on

the best interests of the children. After discovery was conducted, a final hearing

on the matter was held on September 23-24, 2008. The magistrate issued its



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decision on April 29, 2008, and subsequently, Sheryl filed objections to the

magistrate’s decision. On November 20, 2009, the trial court sustained one of

Sheryl’s objections, which concerned the issue of child support and has not been

raised in this appeal, and overruled her remaining objections.

       {¶4} Sheryl now appeals and raises nine assignments of error. We elect

to address Sheryl’s assignments of error out of the order in which they were

presented in her brief.

                          ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED IN FINDING THAT THE
       APPELLEE WAS INTITLED [SIC] TO 100% OF THE
       PROCEEDS FROM THE SALE OF THE PARTIES’
       MARITAL REAL ESTATE FOR THE APPELLEE FAILED
       TO TRACE THE FUNDS AND THE FUNDS WERE
       COMMINGLED.

       {¶5} In her first assignment of error, Sheryl argues that the trial court

erred in finding that Ryan was entitled to all of the proceeds from the sale of the

parties’ marital property when he had failed to trace the source of the funds as his

separate property.

       {¶6} With respect to dividing assets in a divorce proceeding, the trial

court first must determine whether property is marital or separate property. Schalk

v. Schalk, 3d Dist. No. 13-07-13, 2008-Ohio-829, ¶6, citing Gibson v. Gibson, 3d

Dist. No. 9-07-06, 2007-Ohio-6965, ¶29, citing R.C. 3105.171(B), (D). See, also,

Lust v. Lust, 3d Dist. No. 16-02-04, 2002-Ohio-3629, ¶12. Pursuant to R.C.


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Case No. 6-10-01


3105.171(A)(3)(a)(i), marital property consists of “real and personal property that

currently is owned by either or both of the spouses * * * and that was acquired by

either or both * * * during the marriage.” Property acquired during a marriage is

presumed to be marital property unless it can be shown to be separate. Barkley v.

Barkley (1997), 119 Ohio App.3d 155, 160, 694 N.E.2d 989. With respect to this

case, separate property, which is defined under R.C. 3105.171(A)(6)(a), among

other things, specifically includes: “[a]n inheritance by one spouse by bequest,

devise, or descent during the course of the marriage.” R.C. 3105.171(A)(6)(a)(i).

Additionally, a party that claims certain property was “separate” bears the “burden

of proof, by a preponderance of the evidence, to trace the asset to separate

property.” Peck v. Peck (1994), 96 Ohio App.3d 731, 734, 645 N.E.2d 1300. See,

also, Shilling v. Shilling, 6th Dist. No. OT-08-042, 2009-Ohio-1476. In order to

meet this burden “the trier of fact [only needs] to believe that the existence of a

fact is more probable than its nonexistence before [it] may find in favor of the

party who has the burden to persuade the [judge] of the fact’s existence.”

Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal.

(1993), 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539.

      {¶7} For purposes of appeal, this Court reviews a trial court’s

classification of property as marital or separate property under a manifest weight

of the evidence standard. Schalk, 2008-Ohio-829, at ¶6, citing Gibson, 2007-



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Case No. 6-10-01


Ohio-6965, at ¶26, quoting Eggeman v. Eggeman, 3d Dist. No. 2-04-06, 2004-

Ohio-6050, ¶14, citing Henderson v. Henderson, 3d Dist. No. 10-01-17, 2002-

Ohio-2720, ¶28. Accordingly, we will not reverse the trial court’s judgment if the

decision is supported by some competent, credible evidence. Eggeman, 2004-

Ohio-6050, at ¶14, citing DeWitt v. DeWitt, 3d Dist. No. 9-02-42, 2003-Ohio-851,

¶10. In determining whether competent, credible evidence exists, “[a] reviewing

court should be guided by a presumption that the findings of a trial court are

correct, since the trial judge is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use those observations in weighing

the credibility of the testimony.” Barkley v. Barkley (1997), 119 Ohio App.3d

155, 159, 694 N.E.2d 989, citing In re Jane Doe I (1991), 57 Ohio St.3d 135, 566

N.E.2d 1181.

       {¶8} Specifically, at issue in this assignment of error is the disposition of

the proceeds from the sale of the parties’ marital residence at 450 East State Road,

Elida, Ohio. Sheryl claims that the money remaining from the sale of the marital

residence was not separate property belonging to Ryan.          Specifically, Sheryl

argues that the trial court erred because Ryan failed to sufficiently trace the funds

as his separate property when the funds had been commingled. We disagree.

       {¶9} First of all, “[t]he commingling of separate property with other

property of any type does not destroy the identity of the separate property as



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Case No. 6-10-01


separate property, except when the separate property is not traceable.”        R.C.

3105.171(A)(6)(b). Thus, despite the fact that the inheritance may have been

commingled with marital property, the inheritance could still be considered

separate property as long as it could be traced. Peck, 96 Ohio App.3d at 734.

After reviewing the record, we believe that there was some competent, credible

evidence to support the magistrate’s finding that the proceeds from the sale of the

marital residence were traced to Ryan’s separate property, which was the

inheritance he had received from his father’s death.

       {¶10} The evidence presented at the final hearing was undisputed that in

September 2000, while the parties were still married, Ryan and Sheryl entered into

a contract with Alexander Homes to construct a house at 450 East State Road,

Elida, Ohio. The construction contract for the marital residence was valued at

around $196,000.00 and was secured by both a mortgage ($89,000.00) and a home

equity loan. Under the terms of the construction contract, the parties agreed to

first pay $107,000.00 towards the construction of the house before the bank would

disburse the money for the loan. (Plaintiff’s Ex. 3). While the realty was titled in

the name of both parties and both parties signed the mortgage, both Sheryl and

Ryan testified that, as a result of Ryan’s father’s death in November 1999, Ryan

received around $220,000.00 as an inheritance, and that a significant portion of his

inheritance (at least $100,000.00) went towards the construction of the parties’



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Case No. 6-10-01


marital residence. (Sept. 22, 2008 Tr. at 28, 52, 105-117); (Plaintiff’s Exs. 1, 2, 4,

5). While both parties acknowledged that Ryan had received around $200,000.00

as his inheritance, there was documentation illustrating that at least $101,118.01

was received by Ryan and subsequently deposited into a bank account that was

solely in his name. (Plaintiff’s Exs. 4, 16). Furthermore, there was documentation

illustrating that Ryan had signed and drawn three checks made payable to

Alexander Homes: (1) a check dated October 27, 2000, for $39,586.25; (2) a

check dated December 11, 2000, for $19,244.75; and, (3) a check dated January

16, 2001, for $47,503.50. (Id. at 117-18); (Plaintiff’s Ex. 6). These checks in total

equaled approximately $107,000.00, which was the amount required under the

construction contract before the bank would release the $89,000.00 for the loan.

(Id.). Additionally, there was testimony that these checks were drawn out of

Ryan’s inheritance money. (Sept. 22, 2008 Tr. at 117-18).

       {¶11} Despite the undisputed evidence, Sheryl attempts to argue that it was

unclear which bank account Ryan had deposited his inheritance money into prior

to using it for the construction of the marital house. However, along with Ryan’s

documents evidencing the amounts he had received from his father’s estate and the

subsequent amounts he had paid the construction company for the marital

residence, Sheryl explicitly admitted at the hearing that Ryan had received around

$200,000.00 as inheritance from his father’s death. (Sept. 22, 2008 Tr. at 23, 52)



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(Plaintiff’s Exs. 1, 2, 4, 5). In addition, she explicitly admitted that he had used a

significant portion of his inheritance, possibly at least $100,000.00, for the

construction of the parties’ marital residence. (Sept. 22, 2008 Tr. at 23, 52).

       {¶12} Therefore, we believe there was competent, credible evidence to

support the magistrate’s finding that Ryan had sufficiently traced a significant

portion, which the parties agreed was at least $100,000.00, of the remaining

proceeds from the sale of the marital residence to his separate property, which was

his inheritance from his father’s estate. Compare, Freytag v. Freytag (Aug. 15,

1994), 12th Dist. No. CA93-11-223, at *2-3 (holding that the husband made no

attempt to trace the supposedly separate property from a joint bank account to an

inheritance), Burns v. Burns, 12th Dist. Nos. CA2003-04-086, CA2003-04-089,

2004-Ohio-2296, ¶¶16-17 (finding that despite the fact that the funds had been

commingled with marital funds, there was competent, credible evidence that the

funds were traceable from the CDs to the savings account to appellant’s separate

property).   Essentially, the sale of the marital residence only left $68,000.00

remaining, and because there was considerably less remaining from the sale of the

marital residence than what Ryan had, at minimum, contributed and successfully

traced to his inheritance, it was reasonable for the magistrate to have awarded

Ryan the entire proceeds from the sale of the marital residence. Thus, it was not

an abuse of discretion for the trial court to have adopted this finding.



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       {¶13} Sheryl’s first assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. VII

       THE TRIAL COURT ERRED AS A RESULT OF ITS
       FINDING THAT APPELLANT OWES MONEY TO
       APPELLEE AS A RESULT OF HER USE OF MARITAL
       FUNDS FOR THE PURPOSE OF PROVIDING THE MINOR
       CHILDREN WITH A PLACE TO LIVE.

       {¶14} In her seventh assignment of error, Sheryl argues that the trial court

erred in finding that she owed Ryan money as a result of her drawing on the

parties’ home equity loan after the parties had separated. She argues that Ryan

also had drawn money on their home equity loan, around $5,600.00, for various

obligations, including his attorney fees and GAL fees. However, she claims that

the trial court never explained why she had to repay Ryan, while Ryan was able to

receive his portions of the hone equity loan free and clear.

       {¶15} In addition to what was stated above in the first assignment of error,

when the parties sold their marital residence there was still an outstanding

mortgage and a home equity loan remaining on the property, which were

subsequently paid through the proceeds of the sale. At the final hearing, Ryan

testified that when he went to close on the property, he discovered that the

indebtedness of the home equity loan was substantially larger than he had

expected. (Sept. 22, 2008 Tr. at 119). He later discovered that Sheryl had taken

two loan advances against the home equity loan, totaling $11,600.00,



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approximately ten days before Ryan closed on the house. (Id. at 120, 137-38);

(Plaintiff’s Ex. 7). However, because Ryan had discovered the extra indebtedness

right around the closing, in order to close on time, he had to sign the paperwork

and agree to have the extra money deducted from the total, so that he was left with

about $12,000 less in proceeds than he had originally expected. (Id. at 121). On

cross-examination, Ryan did admit that he had also taken some advances on the

equity loan after the parties had separated, which totaled $5,600.00, but said that

he had been unaware of the two advances taken by Sheryl. (Sept. 24, 2008 Tr. at

244-47).   He stated that the advances he had taken were for the following

obligations: his Allen County divorce attorney, the GAL for the Allen County

divorce proceeding, the property taxes for the marital residence, mortgage

payments for the marital residence, and the warranty insurance for the sale of the

property. (Id.).

       {¶16} Ultimately, the trial court adopted the magistrate’s decision, who

found that Sheryl owed Ryan $10,050.00 for the advances of the home equity loan

she had taken shortly before the marital residence was sold. (Dec. 17, 2009 JE at

3). The magistrate reasoned as follows:

            Shortly before the marital residence was sold defendant
       took two loan advances against the parties’ home equity loan in
       the amount of $11,600.00. Plaintiff testified he was not aware of
       the transaction until the date of final closing
            Defendant provided no accounting of the funds and could
       not recall as to how the monies were spent.


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Case No. 6-10-01


           Plaintiff also took loan advances against the home equity
      loan; however, all but $1,550.00 of the funds were used to pay
      real estate taxes and reduce the mortgage balance on the marital
      residence.
           To the contrary, the actions of Defendant only reduced the
      total amount of sale proceeds from the realty to which Plaintiff
      would have been entitled since the same was determined to his
      separate, non-marital property.
           Accordingly, Defendant should be ordered to repay and/or
      reimburse Plaintiff the sum of $10,050.00. ($11,600.00-$1,550.00)

(Apr. 16, 2009 Mag. Dec.).

      {¶17} First, Sheryl claims that the trial court erred because there was no

explanation given as to why she had to repay Ryan for her draws against the home

equity loan, while Ryan was able to receive his portions of the hone equity loan

free and clear. We disagree. The magistrate explicitly stated that Sheryl owed

Ryan money because: the money from the sale of the marital residence was

Ryan’s separate property; Sheryl’s draws substantially reduced Ryan’s separate

property; and her draws were not justified at the final hearing. Furthermore,

despite Sheryl’s argument, Ryan did not receive his portions of the home equity

loan free and clear. On cross-examination, Ryan admitted that he had also taken

several draws out against the parties’ home equity loan. However, Ryan later

explained each draw he had taken out against the home equity loan, which

included payments for the marital residence ($3,524.91), the marital residence’s

property taxes ($1,503.41), his Allen County divorce attorney ($750.00), and the

GAL’s fees for the Allen County divorce case ($800.00). (Sept. 24, 2008 Tr. at


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244-48). Ryan explained that when Sheryl had moved out of the marital residence

she stopped making payments on the house, and because his income alone was

insufficient, he had to borrow money against the parties’ home equity loan in order

to pay the debts on the marital residence. (Sept. 24, 2008 Tr. at 249). However,

just like Sheryl’s unexplained draws, the fees for his divorce attorney and the GAL

were not related to the marital residence, thus, the magistrate found that they were

Ryan’s individual obligation, which he had already fulfilled when he sold the

property, paid off the home equity loan, and received less proceeds out of the sale.

Therefore, the magistrate did account for Ryan’s unrelated expenses when he

reduced Sheryl’s original obligation to Ryan, $11,600.00, by $1,550.00 ($800.00 +

$750.00), which was the amount of Ryan’s unrelated expenses. Therefore, Ryan

did not receive all of the money from the home equity loan free and clear.

       {¶18} Assuming Ryan’s payments associated with the marital residence

were justifiable, Sheryl also argues that she should not have to reimburse Ryan

because she also used her home equity loan money to find a place to live and to

provide basic necessities for herself and the parties’ children. Sheryl claims that

she testified that “when she moved out of the marital residence, she had no

residence of her own and had to obtain a place to live, furnish it, and provide basic

necessities for herself and the minor children.”        (Appellant’s Brief at 19).

However, despite her claims to the contrary, after reviewing the record, we find



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Case No. 6-10-01


that Sheryl never testified about what she did with respect to her draws on the

parties’ home equity loan, which is consistent with the trial court’s finding in its

judgment entry. Furthermore, and more specifically, there is nothing in the record

to support or corroborate the claim that she used the money for a place to live and

to provide for the children. Therefore, given that the record is silent as far as what

Sheryl did with the money, and that the proceeds from the sale of the residence

(Ryan’s separate property) were substantially reduced as a result of Sheryl’s

actions, we find that it was reasonable for the magistrate to order Sheryl to repay

Ryan $10,050.00. As a result, we accordingly find that the trial court’s decision

was not an abuse of discretion.

       {¶19} Sheryl’s seventh assignment of error is, therefore, overruled.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED BY ADOPTING THE SHARED
       PARENTING PLAN AS PRESENTED BY APPELLEE FOR
       THE EVIDENCE AT TRIAL ESTABLISHED THAT THE
       APPELLEE CANNOT COMMUNICATE WITH THE
       APPELLANT AND THE PARTIES ARE NOW RESIDING IN
       TWO DIFFERENT COUNTIES.

                      ASSIGNMENT OF ERROR NO. IX

       THE TRIAL COURT ERRED AS A RESULT OF ITS
       FAILURE TO IDENTIFY THE APPELLANT AS THE
       RESIDENTIAL PARENT AND ITS FAILURE TO CONTINUE
       THE MINOR CHILDREN IN THE FINDLAY CITY
       SCHOOLS.




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Case No. 6-10-01


       {¶20} In her second assignment of error, Sheryl argues that the trial court

erred when it adopted Ryan’s proposed shared parenting plan when there was

evidence that Ryan was not willing to communicate or work together with Sheryl.

Similarly, in her ninth assignment of error, Sheryl argues that the trial court erred

in failing to name her as the residential parent and failing to continue the minor

children in the Findlay City Schools.

       {¶21} An appellate court reviews a trial court’s decisions on child custody

matters for an abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 523

N.E.2d 846; Erwin v. Erwin, 3d Dist. No. 14-05-45, 2006-Ohio-2661, ¶12; Swain

v. Swain, 4th Dist. No. 04CA726, 2005-Ohio-65, ¶16. Due to the difficult and

complicated nature of custody determinations, appellate courts must grant wide

latitude to a trial court’s consideration of the evidence, and, thus, we will not

reverse a child custody decision that is supported by a substantial amount of

competent, credible evidence. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418,

674 N.E.2d 1159; Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178,

syllabus. An abuse of discretion connotes more than an error of judgment; rather,

it implies that the court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When

applying the abuse of discretion standard, a reviewing court may not simply

substitute its judgment for that of the trial court. Id.



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Case No. 6-10-01


       {¶22} R.C. 3109.04(D)(1)(c) provides that whenever possible the trial

court should adopt a shared parenting plan unless it is not in the best interests of

the children. In determining the best interests of the children, the trial court must

consider a number of factors, one of which includes the ability of the parents to

cooperate and make decisions jointly, with respect to the children.             R.C.

3109.04(D)(1); (F)(2)(a).

       {¶23} Here, the trial court adopted the magistrate’s recommendation to

adopt Ryan’s proposed shared parenting plan. (Dec. 17, 2009 JE at 1-2). With

respect to the shared parenting plan, in his decision, the magistrate stated as

follows:

            Despite the parties ongoing problems over the selection of
       an appropriate school for the children, parenting time exchange
       arguments and denials of visitation and companionship they
       each communicated to the Guardian Ad Litem that the other
       party was a good parent and that the children loved them.
            Both the Guardian Ad Litem and the undersigned place
       significant emphasis on such statements along with the fact that
       the children are very close, significantly attached, and bonded
       with each parent. RC 3109.04(F)(1)(c).
            Although the parents love their children very much and
       have indicated a willingness to communicate with each other
       regarding the care and upbringing of the children they have not
       always demonstrated it.
            As noted by the Guardian Ad Litem when not involved in
       court matters the parents can get along sufficiently to be directly
       involved in the cooperative effort required to provide the
       children are raised in a relatively stable environment.
            Taking into consideration all of the applicable (relevant)
       factors to be considered under RC 3109.04(F)(1)(a) thru (j) in
       making a determination as to residential parent status and


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Case No. 6-10-01


      consistent with the principle that whenever possible to the order
      or decree shall ensure the opportunity for both parents to have
      frequent and continuing contact with the children it is
      recommended that the Court adopt and approve the shared
      parenting plan presented by plaintiff for the reason that same
      would be in the best interest of the minor children.

(Apr. 16, 2009 Mag. Dec. at 4-6).

      {¶24} Essentially, Sheryl argues that the trial court erred when it adopted

Ryan’s proposed shared parenting plan instead of naming her as the residential

parent. Additionally, and more particularly, Sheryl claims that there was evidence

that Ryan was not willing to communicate or work together with her. In support

of her argument, Sheryl cites to the following statements made by Ryan at the

final hearing.   When being questioned about whether he believed the GAL’s

recommendation for a shared parenting plan utilizing a week on/week off system,

Ryan was asked whether he believed he and Sheryl communicate about the

children, and Ryan responded, “[n]ot at all.”      (Sept. 22, 2008 Tr. at 123).

Moreover, when being questioned about the possibility of having the children go

to Findlay City School (where Sheryl lived), as opposed to Ada public school

(where Ryan lived), Ryan responded, “[t]here’s no reason the children should ever

have to live with their mother.” (Sept. 22, 2008 Tr. at 178). Based on this

testimony, Sheryl argues that the trial court could not and should not have found

that the parties have demonstrated an ability to cooperate and make decisions




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Case No. 6-10-01


together about parenting, and as a result, the trial court should not have adopted

Ryan’s shared parenting plan.

      {¶25} First of all, the factor that the parties have demonstrated an ability to

cooperate and make decisions together about parenting is only one factor out of

many factors the trial court has to consider. Moreover, even though both of the

parties may have made comments at the final hearing that they could not cooperate

with one another, we believe that there was evidence in the record that illustrated

that their actions throughout the proceedings demonstrated otherwise. At the final

hearing, the GAL recommended that the trial court adopt a shared parenting plan

because even though the parties had at times not communicated well with one

another, when it came to their children Sheryl and Ryan were able to communicate

and get along with one another. (Sept. 24, 2008 Tr. at 308). Furthermore, the

GAL believed that they were both good parents and that given the circumstances

the overall goal should be to give the children equal amounts of time with both

parents. (Id). Moreover, despite their feelings towards one another, both Ryan

and Sheryl admitted that they believed that the other one was a good parent and

admitted that the children loved each of them.

      {¶26} Nevertheless, Sheryl argues that the trial court erred in adopting a

shared parenting plan and not naming her the residential parent. However, we

believe that the record demonstrates that a shared parenting plan was in the best



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Case No. 6-10-01


interest of the children. Moreover, because the weight to be given to the evidence

and credibility of witnesses is primarily reserved to the trier of fact, we find that

the trial court did not abuse its discretion in determining that shared parenting was

in the best interest of the children. Barkley v. Barkley (1997), 119 Ohio App.3d

155, 159, 694 N.E.2d 989. Furthermore, we find that the magistrate made the

appropriate findings of fact and conclusions of law in recommending that the trial

court adopt Ryan’s shared parenting plan.         Along with listing a few specific

findings of fact, the magistrate stated that he had considered all of the relevant

factors pursuant to R.C. 3109.04(F)(1)(a) thru (j), and we believe that there was

sufficient evidence for the magistrate to conclude that a shared parenting plan was

in the best interests of the children.

       {¶27} With respect to the finding that the children should attend Ada and

not Findlay City Schools, Sheryl cites to evidence she presented at the final

hearing. In particular, she claims that she established that the children had already

been attending Findlay City School system, and that there had been no reason to

remove them and transfer them to the Ada School system.             However, after

reviewing the record, we believe that there was evidence to support the trial

court’s decision to have the children continue to be enrolled in the Ada school

system. While the oldest child, Shelby, had gone to Findlay City Schools the

previous school year, at the time of the final hearing, both of the children were



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Case No. 6-10-01


going to school in Ada. Furthermore, the GAL believed that the Ada school

system was a better school system, and that for stability purposes the children

should remain enrolled in the Ada school system. (Sept. 24, 2008 Tr. at 298).

Because Shelby had adjusted to the Findlay school system from her prior school

system without any problems, the GAL believed that she would be able to adjust

to the Ada school system similarly without any problems. (Id.).

       {¶28} Therefore, despite the evidence presented by Sheryl at the final

hearing and as stated above, the weight to be given to the evidence and credibility

of witnesses is primarily reserved to the trier of fact, and we find that the trial

court did not abuse its discretion in determining that continuing the children in the

Ada school system was in their best interest.

       {¶29} Therefore, Sheryl’s second and ninth assignments of error are

overruled.

                       ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ERRED AS A RESULT OF ITS
       FINDING THAT THE WISHES OF THE MINOR CHILD
       SHOULD NOT BE CONSIDERED FOR THE CHILD DID
       DEMONSTRATE SUFFICIENT REASONING ABILITY TO
       MAKE A CHOICE.

       {¶30} In her third assignment of error, Sheryl argues that the trial court

erred when it determined that the parties’ minor child did not demonstrate

sufficient reasoning ability.



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       {¶31} R.C. 3109.04(B)(2)(b) states that if a trial court interviews a child

for purposes of the section, the trial court must first determine the reasoning ability

of the child. “If the court determines that the child does not have sufficient

reasoning ability to express the child’s wishes and concern with respect to the

allocation of parental rights and responsibilities for the care of the child, it shall

not determine the child’s wishes and concerns with respect to the allocation.”

R.C. 3109.04(B)(2)(b) (emphasis added).

       {¶32} After reviewing the transcript from the in camera interview of the

parties’ oldest minor child, Shelby R. Hall (who was 10-years-old at the time of

the interview), we believe that the magistrate’s finding that Shelby did not

demonstrate sufficient reasoning ability to express her wishes was reasonable

under the circumstances, and that the trial court did not abuse its discretion when it

adopted the finding. In re Longwell (Aug. 30, 1995), 9th Dist. Nos. 94 CA

006006, 94 CA 006007, at *1-2. The magistrate asked questions sufficient to

ascertain whether the child could express her wishes and concerns with respect to

the allocation of parental rights and responsibilities, and after reviewing Shelby’s

answers, we believe that it was reasonable for both the magistrate and GAL to

determine that Shelby did not demonstrate sufficient reasoning ability.

Furthermore, we note that a child’s wishes are not controlling upon the trial court

and are only one of among several factors a trial court considers to determine what



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Case No. 6-10-01


is in the child’s best interest. Kellogg v. Kellogg, 10th Dist. No. 04AP-382, 2004-

Ohio-7202, ¶19. And as we stated in our discussion above, we believe that the

magistrate’s decision to adopt a shared parenting plan was reasonable, and that it

was in the children’s best interests to adopt a shared parenting plan. Thus, the trial

court’s subsequent decision was not an abuse of discretion.

       {¶33} Sheryl’s third assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. IV

       THE TRIAL COURT ERRED AS A RESULT OF ITS
       FAILURE TO FIND THAT THE APPELLEE HAD
       WITHHELD THE CHILDREN FROM THE APPELLANT BY
       TAKING THE CHILDREN OUT OF STATE FOR TWO
       WEEKS.

                      ASSIGNMENT OF ERROR NO. VI

       THE TRIAL COURT ERRED WHEN IT FAILED TO FIND
       THAT THE APPELLEE VIOLATED THE ORDERS OF THE
       COURT WHEN THE APPELLEE ADMITTED THAT HE
       HAD CONSUMED ALCOHOL IN THE PRESENCE OF THE
       MINOR CHILDREN.

       {¶34} In her fourth and sixth assignments of error, Sheryl argues that the

trial court erred in failing to find Ryan in contempt when Ryan allegedly withheld

the parties’ minor children from her for a period of two weeks and when he

admitted to consuming alcohol in the presence of the minor children.

       {¶35} Contempt is a disregard of, or disobedience to, the orders or

commands of judicial authority. Dozer v. Dozer (1993), 88 Ohio App.3d 296,



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Case No. 6-10-01


302, 623 N.E.2d 1272, citing State v. Flinn (1982), 7 Ohio App.3d 294, 455

N.E.2d 691. A person may be punished for contempt for disobeying or resisting a

lawful order, judgment, or command of the court. R.C. 2705.02; In re Ayer

(1997), 119 Ohio App.3d 571, 575, 695 N.E.2d 1180. The essential element of a

contempt proceeding is that the person facing contempt charges has obstructed the

administration of justice in some manner.     State v. Kimbler (1986), 31 Ohio

App.3d 147, 509 N.E.2d 99. While there must be clear and convincing evidence

for the trial court to find someone in contempt, the decision of whether to find

someone in contempt lies within the sound discretion of the trial court, and this

court will not reverse its decision absent an abuse of discretion. Ayer, 229 Ohio

App.3d at 575; Dozer, 88 Ohio App.3d at 302, citing Chaudhry v. Chaudhry (Apr.

8 1992), 9th Dist. No. 15252; Boone v. Brown, 3d Dist. No. 5-06-14, 2006-Ohio-

5967; State ex rel. Ventrone v. Birkel (1981), 65 Ohio St.2d 10, 11, 417 N.E.2d

1249.

        {¶36} Here, the trial court overruled all pending motions for contempt

because there was a lack of competent, credible evidence to support making such

findings. (Apr. 16, 2009 Mag. Dec. at 17); (Dec. 17, 2009 JE at 3). Nevertheless,

Sheryl argues that the trial court should have found Ryan in contempt when he

took the minor children for two weeks on vacation without giving Sheryl the

proper 30-day notice that was required under the temporary order, and when Ryan



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Case No. 6-10-01


admitted to consuming alcohol in the presence of the children, which was in

contravention of the custody order. However, after reviewing the record, we

believe that the trial court’s decisions were reasonable given the lack of

competent, credible evidence to support any findings of contempt.

      {¶37} At the temporary order hearing, Sheryl testified that Ryan had

improperly taken the children out of state for two weeks and that she had to utilize

the Ada Police Department in getting them returned to her. (July 22, 2008 Tr. at

143-46). Conversely, Ryan testified that he was entitled to the vacation time and

that he had given Sheryl a 32-day notice prior to taking the children on vacation

with him. (July 22, 2008 Tr. at 66-67). The only other evidence Sheryl relies on

is the GAL’s testimony, specifically when the GAL acknowledged that she was

aware Sheryl had to enlist the assistance of the Ada Police Department in

retrieving the children from Ryan when he had taken them on vacation with him.

(Sept. 24, 2008 Tr. at 355). However, it is clear that the GAL only said that she

was aware that Ryan had taken the children on vacation and that Sheryl had called

the police in connection with the matter, but offered nothing as far as whether

Ryan had done so in violation of a court order. (Id.). Furthermore, we note that

the GAL stated that Ryan had given her prior notice that he was planning on

taking the children out of state on vacation. (Sept. 24, 2008 Tr. at 355-56).

Overall, this evidence alone does not support a finding that Ryan had acted in



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Case No. 6-10-01


violation of the custody order; therefore, we believe that the trial court’s

determination was reasonable and not an abuse of discretion.

       {¶38} Next, Sheryl claims that the trial court should have found Ryan in

contempt for admitting that he had consumed alcohol in the presence of the

parties’ minor children. After a temporary order hearing concerning the allocation

of parental rights and responsibilities, in its order the court specifically prohibited

the “parent that has care of the children from consuming alcoholic beverages.”

(Jan. 7, 2008 JE). Sheryl again cites to the GAL’s testimony in support of her

position, in which the GAL testified that she was aware of the court order

prohibiting the use of alcohol during parenting time, and that she was also aware

that Ryan had admitted to consuming alcohol in the presence of the parties’ minor

children since that order had been issued. (Id. at 338). However, while the

statement about the alleged misconduct may have been true, there was no evidence

about the nature of the conduct or even if the conduct had impacted the children in

any way. Without more, there is only evidence to show that a technical violation

may have occurred and this Court has held that technical violations of a court

order do not necessarily require a finding of contempt. Miller v. Miller, 3d Dist.

No. 7-03-09, 2004-Ohio-2358, ¶12.         Therefore, given the lack of additional

evidence concerning Ryan’s misconduct, we believe that the trial court’s decision

was reasonable and not an abuse of discretion.



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Case No. 6-10-01


       {¶39} Sheryl’s fourth and sixth assignments of error are, therefore,

overruled.

                       ASSIGNMENT OF ERROR NO. V

       THE TRIAL COURT ERRED AS A RESULT OF ITS
       FAILURE TO ORDER THE EQUITABLE DIVISION OF
       PERSONAL PROPERTY.

       {¶40} In her fifth assignment of error, Sheryl argues that the trial court

erred in not ordering an equitable division of the parties’ personal property. In

particular, Sheryl challenges only a portion of the division of the marital property,

specifically those items from the parties’ marital residence that were placed in

storage by Ryan and, in her opinion, were not equally distributed by the trial court.

       {¶41} R.C. 3105.171(C)(1) governs the division of marital property and

provides, in part:

       [T]he division of marital property shall be equal. If an equal
       division of marital property would be inequitable, the court shall
       not divide the marital property equally but instead shall divide it
       between the spouses in the manner the court determines
       equitable.

       {¶42} First of all, we note that “[a]lthough an equal division is a starting

point when allocating marital property and debt, a decision need not be equal to be

equitable.” Shaffer v. Shaffer, 3d Dist. No. 11-04-22, 2005-Ohio-3884, ¶25, citing

R.C. 3105.171(C)(1); Lust, 2002-Ohio-3629, at ¶25. Trial courts generally have

broad discretion in determining the equitable distribution of property in divorce



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Case No. 6-10-01


cases; and therefore, we review the overall appropriateness of the trial court’s

property distribution under an abuse of discretion standard. Martin v. Martin, 3d

Dist. No. 9-03-47, 2004-Ohio-807, ¶6, citing Lust, 2002-Ohio-3629; Bisker v.

Bisker (1994), 69 Ohio St.3d 608, 635 N.E.2d 308; Martin v. Martin (1985), 18

Ohio St.3d 292, 480 N.E.2d 1112. An abuse of discretion implies that the trial

court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore, 5

Ohio St.3d at 219.

       {¶43} Here, Sheryl claims that when they separated, Ryan moved out of

the marital residence and took all of the household items and placed the items in

storage. Similarly, Ryan testified that, with the exception of the few items he had

circled on Defendant’s Exhibit K, all the remaining items from the parties’ marital

residence were either in storage or being used by him – with the larger percentage

of the items listed in the exhibit being in storage. (Sept. 22, 2008 Tr. at 198-203).

Ryan argued at the final hearing that he should be given all of the items in the

storage unit because he had been paying the storage bill, while Sheryl only wanted

the trial court to make a fair, equitable division of the household goods in the

storage unit.   Ultimately, the trial court adopted the magistrate’s proposed

alternate selection process for division of the property between the parties:

            All items of personal property that have not been divided
       and remain in storage (Defendant’s Exhibit K) should be divided
       between the parties as follows: Defendant shall have the option
       to select first, in which case Plaintiff shall select the next two


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Case No. 6-10-01


      items and thereafter alternate their selection with the party
      having selected first, selecting the fourth item. Each party
      should pay one half of the storage fee.
           Each party should be awarded, free and clear of any claims
      of the other, all household goods and furnishings presently in
      their possession and pay and hold harmless the other on any
      debt due and owing on same.

(Apr. 16, 2009 Mag. Dec. at 11-12); (Dec. 17, 2009 JE at 3).

      {¶44} Sheryl claims that the trial court failed to divide the personal

property Ryan had taken from the marital residence that did not end up in the

storage unit and that it could not have made an “equitable” division when there

was no evidence on the value of the household items. Nevertheless, it is clear

from the trial court’s decision that the magistrate did divide the personal property

not in the storage unit, and in fact, not only did Ryan retain all the items in his

possession, but Sheryl was able to keep all the personal property in her possession.

Furthermore, while generally in order to make an equitable division of property, a

trial court should first determine the value of marital assets, there are

circumstances when a trial court does not abuse its discretion when it does not

value certain marital property. Casper v. DeFrancisco (Feb. 19, 2002), 10th Dist.

No. 01AP-604, citing Eisler v. Eisler (1985), 24 Ohio App.3d 151, 152, 493

N.E.2d 975; Richardson v. Richardson, 10th Dist. No. 01AP-1236, 2002-Ohio-

4390, ¶45. For example, it has been stated that even though “the trial court is

required to consider the value of the parties’ major assets * * * the trial court



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Case No. 6-10-01


cannot be expected to place a value on each individual item of personal property

owned by the parties.” Beagle v. Beagle, 10th Dist. No. 07AP-494, 2008-Ohio-

764, ¶41, quoting McCloud v. McCloud (Dec. 23, 2005), 6th Dist. No. F-05-006,

¶22, citing Zona v. Zona, 9th Dist. No. 05CA0007-M, 2005-Ohio-5194, ¶5, citing

Kohler v. Kohler (Aug. 14, 1996), 9th Dist. No. 96CA006313. We believe that it

was well within the trial court’s discretion to order the household goods and

furnishings in the storage unit be divided by a rotating selection. Motter v. Motter

(July 27, 2000), 3d Dist. No. 16-99-14, at *4-5, citing Frost v. Frost (1992), 84

Ohio App.3d 699, 618 N.E.2d 198. And after reviewing the trial court’s entire

division of property, we believe its decision was in fact equitable.

       {¶45} Finally, Sheryl seems to argue that the items in the storage unit have

been improperly removed by Ryan; however, issues relating to the enforcement of

a trial court order should be first presented to the trial court and not on appeal. If

Ryan did improperly remove the household items from the storage unit prior to the

parties’ utilizing the alternate selection process, the most appropriate remedy

available to Sheryl would be to file a motion for contempt or show cause with the

trial court.

       {¶46} Therefore, Sheryl’s fifth assignment of error is overruled.

                     ASSIGNMENT OF ERROR NO. VIII

       THE TRIAL COURT FAILED TO PROPERLY DIVIDE THE
       DEPENDENCY EXEMPTIONS AND IMPROPERLY USED


                                        - 28 -
Case No. 6-10-01


        THE APPELLEE’S PRIOR INCOME TO DETERMINE
        DIVISION OF THE EXEMPTIONS.

        {¶47} In her eighth assignment of error, Sheryl argues that the trial court

failed to properly divide the tax dependency exemptions and improperly used

Ryan’s prior income to determine the division of the exemption. In particular,

Sheryl claims that at the final hearing Ryan was not employed and his only source

of income was unemployment compensation calculated at $12,744.00. On the

other hand, Sheryl did have a job at the time of the final hearing and income of

$15,184.00, which placed her within the same tax bracket as Ryan. Sheryl claims

that because she was the only one employed she should have received both

dependency tax exemptions.

        {¶48} An appellate court reviews a trial court’s award of tax exemptions

under an abuse of discretion standard. Tuttle v. Tuttle, 10th Dist. Nos. CA2006-07-

176, CA2006-07-177, 2007-Ohio-6743, ¶11.

        {¶49} A trial court’s decision in awarding the federal income tax

dependency exemption is governed by R.C. 3119.82, which states, in pertinent

part:

        [w]henever a court issues, or whenever it modifies, reviews, or
        otherwise reconsiders a court child support order, it shall
        designate which parent may claim the children who are the
        subject of the court child support order as dependents for
        federal income tax purposes * * * If the parties agree on which
        parent should claim the children as dependents, the court shall
        designate that parent as the parent who may claim the children.


                                       - 29 -
Case No. 6-10-01


      If the parties do not agree, the court, in its order, may permit the
      parent who is not the residential parent and legal custodian to
      claim the children as dependents for federal income tax
      purposes only if the court determines that this furthers the best
      interest of the children and, with respect to orders the court
      modifies, reviews, or reconsiders, the payments for child support
      are substantially current as ordered by the court for the year in
      which the children will be claimed as dependents. In cases in
      which the parties do not agree which parent may claim the
      children as dependents, the court shall consider, in making its
      determination, any net tax savings, the relative financial
      circumstances and needs of the parents and children, the
      amount of time the children spend with each parent, the
      eligibility of either or both parents for the federal earned income
      tax credit or other state or federal tax credit, and any other
      relevant factor concerning the best interest of the children.

Pursuant to the statute, the custodial parent is presumed to be entitled to claim a

minor child for income tax purposes, and a trial court may only award the tax

exemption to a non-custodial parent if it finds that doing so serves the best

interests of the child. Bobo v. Jewell (1988), 38 Ohio St.3d 330, 332, 528 N.E.2d

180. However, under a shared parenting arrangement both parties are, in essence,

deemed to be the residential parent, thus the presumption would not apply.

Therefore, the trial court is essentially left to allocate the tax dependency

exemption focusing on what is in the best interest of the children, which includes

any net tax savings for either of the parents. See Singer v. Dickinson (1992), 63

Ohio St.3d 408, 588 N.E.2d 805 (holding that a non-residential parent may receive

the tax exemption when it produces a net tax savings for the parents in the best

interests of the child); Love v. Rable, 147 Ohio App.3d 63, 2001-Ohio-2174, 768


                                      - 30 -
Case No. 6-10-01


N.E.2d 1185 (finding that a trial court has authority to award the tax exemption to

the noncustodial parent if it is demonstrated that there will be a net tax savings for

the parents, which advances the best interest of the child).

       {¶50} Here, based on the evidence the parties’ presented at the final

hearing, the magistrate found that “[i]n the instant case the worksheet used to

calculate Plaintiff’s temporary support obligation listed Plaintiff’s income from

employment at $39,478.00 and Defendant’s income from self-employment at only

$5,200.00. Defendant’s income places her in the 10% bracket. Plaintiff’s income

from unemployment for 36 weeks at $12,744.00 places him in the 15% tax

bracket.” (Apr. 16, 2009 Mag. Dec. at 16-17). As a result, the magistrate awarded

both tax exemptions to Ryan as opposed to Sheryl, and given the circumstances of

this case and the evidence in the record, we cannot find that the trial court abused

its discretion when it adopted the magistrate’s finding and awarded Ryan both tax

dependency exemptions.

       {¶51} Sheryl’s eighth assignment of error is, therefore, overruled.

       {¶52} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

SHAW, J., concurs.

/jnc



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Case No. 6-10-01


ROGERS, J., concurs in part and dissents in part.

         {¶53} I concur in the majority’s disposition of the second, third, fourth,

fifth, sixth, eighth, and ninth assignments of error. However, I respectfully dissent

from the majority’s finding in the first assignment of error that the home was

Ryan’s separate property for the reasons set forth in Neville v. Neville, 3d Dist. No.

9-08-37, 2009-Ohio-3817, ¶¶36-39 (Rogers, J., concurring in part and dissenting

in part). Having disagreed with the result reached in the first assignment of error,

I cannot agree with the logic applied by the majority in the seventh assignment of

error.




                                        - 32 -
