[Cite as Kilpatrick v. Kilpatrick, 2011-Ohio-443.]


                                         COURT OF APPEALS
                                      DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


JANE A. KILPATRICK                                   :      JUDGES:
                                                     :
                                                     :      Hon. W. Scott Gwin, P.J.
                        Plaintiff-Appellee           :      Hon. William B. Hoffman, J.
                                                     :      Hon. Patricia A. Delaney, J.
-vs-                                                 :
                                                     :      Case No. 10 CAF 09 0080
JOEL KILPATRICK                                      :
                                                     :
                                                     :
                       Defendant-Appellant           :      OPINION



CHARACTER OF PROCEEDING:                                 Appeal from the Delaware County Court of
                                                         Common Pleas, Domestic Relations
                                                         Division, Case No. 06 DR A 03 0131


JUDGMENT:                                                AFFIRMED



DATE OF JUDGMENT ENTRY:                                  January 27, 2011



APPEARANCES:

For Appellant:                                              For Appellee:

ROBERT M. OWENS                                             ANTHONY HEALD
46 N. Sandusky St., Suite 202                               125 N. Sandusky St.
Delaware, OH 43015                                          Delaware, OH 43015
[Cite as Kilpatrick v. Kilpatrick, 2011-Ohio-443.]


Delaney, J.

        {¶1}     Defendant-Appellant Joel Kilpatrick appeals the August 31, 2010

judgment entry of the Delaware County Court of Common Pleas, Domestic Relations

Division.

        {¶2}     This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases provides, in pertinent part:

        {¶3}     “(E) Determination and judgment on appeal.

        {¶4}     “The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

        {¶5}     “The decision may be by judgment entry in which case it will not be

published in any form.”

        {¶6}     This appeal shall be considered in accordance with the aforementioned

rule.

                             STATEMENT OF THE FACTS AND CASE

        {¶7}     The facts relevant to this appeal are as follows. Plaintiff-Appellee, Jane

Kilpatrick and Appellant were married on April 17, 1993. Three children were born as

issue of the marriage: J.K., born August 6, 1995; J.K., born February 28, 1999; and J.K.,

born June 29, 2002.

        {¶8}     The parties separated on or about January 17, 2006. Appellee filed a

Complaint for Divorce on March 22, 2006. Appellant filed an Answer and Counterclaim.

The Magistrate issued Temporary Orders on October 9, 2006 and a Guardian ad Litem
Delaware County, Case No. 10 CAF 09 0080                                              3


was appointed to the case. The matter went to trial in 2008 and the following facts were

adduced at trial.

       {¶9}   At the time of divorce, Appellee worked part-time as nurse for the Red

Cross. Appellant was employed by NCO Financial and his salary was $70,000 per

year, but at the time of trial, Appellant stated he was unemployed.

       {¶10} Appellee reviewed the parties’ joint accounts after Appellant left and

Appellee discovered that Appellant had withdrawn $34,648.41 from their joint accounts.

Appellant stated that he had withdrawn the money and given it to his girlfriend, Kerry

Davidson, for her financial support including her plastic surgeries, her mortgage and

utilities, and the purchase of a 1957 Chevy Bel Air as a prop for her modeling career.

Appellant also cashed out and retained funds from two retirement accounts during the

pendency of the divorce: a Fidelity account in the amount of $78,375.47 and an IBM

account in the amount of $58,324.00. Appellant further kept the tax refunds for the year

2005, totaling $11,653.00.

       {¶11} Appellee transferred the remaining funds from the joint account,

approximately $13,600, to an individual account. During the pendency of the divorce,

two of Appellant’s paychecks were deposited and utilized by Appellee for the operation

of the household without Appellant’s permission. Appellant also stated that Appellee

used Appellant’s credit cards for her individual purpose.      Until the issuance of the

temporary orders on October 9, 2006, Appellant did not pay child support.

       {¶12} In November 2006, Appellant made no further mortgage payments on the

marital home. The marital home was foreclosed upon in January 2007.

       {¶13} Both parties filed for bankruptcy and secured discharges.
Delaware County, Case No. 10 CAF 09 0080                                                4


       {¶14} In April 2006, Appellant was residing with Ms. Davidson and her children

in the state of Missouri.   Appellant and Ms. Davidson have a child together, born

September 28, 2006. Appellant states that he pays Ms. Davidson $780 per month

directly for child support as ordered by an administrative support order issued from

Buchanan County, Missouri.

       {¶15} Prior to trial, the parties expressed to the Magistrate that they had reached

an agreement as to parenting time for their three children.

       {¶16} On December 31, 2009, the Magistrate issued a decision as to the parties’

divorce. Appellant filed objections to the Magistrate’s Decision. On August 31, 2010,

the trial court overruled Appellant’s objections. It is from this decision Appellant now

appeals.

       {¶17} Appellant raises five Assignments of Error:

       {¶18} “I. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO

APPELLANT BY FAILING TO ABIDE BY THE CIVIL RULE 75(N) AND O.R.C.

§3109.04(C) IN THAT DEFENDANT’S PARENTAL RIGHTS WERE TERMINATED

WITHOUT CAUSE AND A PROPERLY MADE MOTION FOR PSYCHOLOGICAL

EXAMINATION WAS NEVER RULED UPON AND THEN DENIED WITHOUT

EXPLANATION.

       {¶19} “II. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO

APPELLANT BY FAILING TO FACTOR IN EVIDENCE OF CLEAR FINANCIAL

MISCONDUCT PERPETRATED BY THE PLAINTIFF-APPELLEE.
Delaware County, Case No. 10 CAF 09 0080                                                  5


       {¶20} “III. THE TRIAL COURT IMPROPERLY ASSESSED A VALUE TO

SIGNIFICANT MARITAL ASSETS THAT PLAINTIFF SOLD IN VIOLATION OF A

PREVIOUS COURT ORDER.

       {¶21} “IV. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO

APPELLANT BY FAILING TO PROVIDE AN OFFSET FOR A CHECK THAT

PLAINTIFF-APPELLEE FORGED, EVEN AFTER SAID FORGERY WAS ADMITTED.

       {¶22} “V. THE TRIAL COURT COMMITTED ERROR PREJUDICIAL TO

APPELLANT       BY   FAILING     TO    FACTOR      DEFENDANT-APPELLANT’S             VALID

MISSOURI CHILD SUPPORT ORDER INTO THE CHILD SUPPORT ORDER.”

                                             I.

       {¶23} Appellant argues that the trial court erred in failing to timely rule upon his

Motion for Psychological Evaluation filed December 14, 2006. Appellant also argues it

was error for the trial court to deny Appellant parenting time for a period of time during

the pendency of the divorce action, finding it was not in the best interests of the children

at the recommendation of the Guardian ad Litem.

       {¶24} At the time of trial, counsel for Appellant stated that the parties resolved

the parenting issues. In the December 31, 2009 Magistrate’s Decision, the Magistrate

stated that all motions not specifically ruled upon were considered and subsequently

denied.

       {¶25} Upon review of the record, we find the trial court did not abuse its

discretion in overruling Appellant’s objections on these issues because it found them to

be waived. Appellant had the opportunity to raise his arguments in the trial court on

multiple occasions, but did not do so and in fact stated that the parenting issues had
Delaware County, Case No. 10 CAF 09 0080                                              6


been resolved by the parties at the time of trial. Appellant also did not bring to the

Magistrate’s attention any other issues in regards to any pending motions.

      {¶26} Appellant’s first Assignment of Error is overruled.

                                         II., IV.

      {¶27} Appellant argues in his second Assignment of Error that the trial court

erred in not finding that Appellee had engaged in financial misconduct during the

pendency of the divorce. Appellant also raises Appellee’s alleged financial misconduct

in his fourth Assignment of Error, arguing that Appellee engaged in financial misconduct

when she deposited two of Appellant’s paychecks during the pendency of the divorce.

We disagree.

      {¶28} R.C. 3105.171(E)(3) provides “[i]f a spouse has engaged in financial

misconduct, including, but not limited to, the dissipation, destruction, concealment, or

fraudulent disposition of assets, the court may compensate the offended spouse with a

distributive award or with a greater award of marital property.” The burden of proving

financial misconduct is on the complaining spouse.

      {¶29} The trial court has discretion in determining whether a spouse committed

financial misconduct, subject to a review of whether the determination is against the

manifest weight of the evidence. Boggs v. Boggs, Delaware App. No. 07 CAF 02, 2008-

Ohio-1411 at paragraph 73, citing Babka v. Babka (1992), 83 Ohio App.3d 428, 615

N.E.2d 247.

      {¶30} Financial misconduct implies some type of wrongdoing such as

interference with the other spouse's property rights. Bucalo v. Bucalo, Medina App. No.
Delaware County, Case No. 10 CAF 09 0080                                                 7


05CA0011-M, 2005-Ohio-6319. The burden of proving financial misconduct is on the

complaining party. Gallo v. Gallo, 2002-Ohio-2815, Lake App. No.2000-L-208.

       {¶31} In Mikhail v. Mikhail, Lucas App. No. L-03-1195, 2005-Ohio-322, the Sixth

District found that financial misconduct must be based on “wrongdoing.” In describing

the wrongdoing, the court stated “[t]ypically, the offending spouse * * * either profit[s]

from the misconduct or intentionally defeat[s] the other spouse's distribution of marital

assets.” Id. at paragraph 28.

       {¶32} In Eggeman v. Eggeman, Auglaize App. No. 02-04-06, 2004-Ohio-6050,

the Third Appellate District also found that “[b]efore a compensating award is made * * *

there must be a clear showing that the offending spouse either profited from the alleged

misconduct or intentionally defeated the other spouse's distribution of assets.” Id. at

¶24.   The court found while the husband did engage in financial misconduct, the

distributive award to the wife was not warranted because the record failed to show the

husband personally gained or profited from his misconduct or that the wife's interest

was defeated. Id.

       {¶33} We have reviewed the record in this case and find that the trial court’s

determination that Appellee did not engage in financial misconduct pursuant to R.C.

3105.171(E) (3) was not against the manifest weight of the evidence. The record fails

to show that Appellee personally gained or profited from her activities or that Appellant’s

interest was defeated. As the trial court noted, Appellee’s actions were a direct result of

Appellant’s own financial misconduct such as keeping the 2005 tax refunds, utilizing

marital funds to pay for his girlfriend’s support, cashing out two retirement accounts, and

no longer paying the mortgage on the marital home.
Delaware County, Case No. 10 CAF 09 0080                                                8


       {¶34} Appellant’s second and fourth Assignments of Error are overruled.

                                            III.

       {¶35} Appellant argues in his third Assignment of Error that the trial court erred

as to its valuation of marital assets.     In the Magistrate’s Decision, the Magistrate

determined that neither party provided credible or probative evidence of the valuations

of the property. A trial court's valuation of marital property will not be reversed absent

an abuse of discretion. Rinaldi v. Rinaldi, Stark App. No. 2009CA00200, 2010-Ohio-

3127, ¶58. We can find no abuse of discretion in the trial court’s determination of the

valuation of the assets. Further, the Magistrate determined that the evidence showed

that the funds from the sale of the household items raised by Appellant were utilized by

Appellee to pay the overdue tuition for the children’s parochial school.

       {¶36} Appellant’s third Assignment of Error is overruled.

                                            V.

       {¶37} Appellant argues in his final Assignment of Error that the trial court failed

to consider the child support paid by Appellant in the state of Missouri when calculating

his child support. We disagree.

       {¶38} The Magistrate found that Appellant had failed to provide sufficient

credible evidence that he paid child support to Ms. Davidson. First, Appellant testified

at trial that he paid Ms. Davidson child support directly rather than pursuant to income

withholding as required by the administrative order. Second, Appellant testified that he

had made the payments on the support order but did not provide supporting

documentation that those payments had been made. The credibility of the witness is
Delaware County, Case No. 10 CAF 09 0080                                                   9


within the purview of the trial court. We find no error in the trial court’s lack of reliance

on Appellant’s testimony.

       {¶39} Appellant’s fifth Assignment of Error is overruled.

       {¶40} The judgment of the Delaware County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Delaney, J.

Gwin, P.J. and

Hoffman, J. concur.



                                          HON. PATRICIA A. DELANEY



                                          HON. W. SCOTT GWIN



                                          HON. WILLIAM B. HOFFMAN
[Cite as Kilpatrick v. Kilpatrick, 2011-Ohio-443.]


              IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT

JANE A. KILPATRICK                                     :
                                                       :
                                                       :
                        Plaintiff-Appellee             :
                                                       :
-vs-                                                   :   JUDGMENT ENTRY
                                                       :
JOEL KILPATRICK                                        :
                                                       :
                                                       :   Case No. 10 CAF 09 0080
                       Defendant-Appellant             :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas, Domestic Relations Division, is affirmed.

Costs assessed to Appellant.




                                                     HON. PATRICIA A. DELANEY



                                                     HON. W. SCOTT GWIN



                                                     HON. WILLIAM B. HOFFMAN
