[Cite as Habo v. Khattab, 2013-Ohio-5809.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


KHALID HABO,                                  :        OPINION

                 Plaintiff-Appellee/          :
                 Cross-Appellant,
                                              :        CASE NO. 2012-P-0117
        - vs -
                                              :
REHAB J. KHATTAB,
                                              :
                 Defendant-Appellant/
                 Cross-Appellee.              :


Appeal from the Portage County Court of Common Pleas, Domestic Relations Division,
Case No. 2010 DR 00527.

Judgment: Affirmed.


Charles E. Grisi and Charles M. Budde, Grisi & Budde, 3250 West Market Street, Suite
100, Akron, OH 44333 (For Plaintiff-Appellee/Cross-Appellant).

Gary M. Rosen and Mark A. Riemer, 11 South Forge Street, Akron, OH 44304 (For
Defendant-Appellant/Cross-Appellee).

Pamela S. Harris, 199 S. Chillicothe Road, Suite 205, Aurora, OH 44202 (Guardian ad
litem).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Rehab Khattab (“mother”) appeals the divorce decree entered

by the Portage County Court of Common Pleas, Domestic Relations Division. At issue

is whether the trial court abused its discretion in awarding custody of the parties’ three
minor children to appellee, Khalid Habo (“father”), and in awarding mother an interest in

father’s pension. For the reasons that follow, we affirm.

        {¶2}   In October 2010, father filed a complaint for divorce from mother.

Subsequently, the trial court appointed Attorney Pamala Harris as guardian ad litem for

the parties’ children.

        {¶3}   In August 2011, mother filed a motion to enforce a post-nuptual separation

agreement signed by the parties in 2005 in Delaware. After a hearing on the issue, in

October 2011, the trial court entered a judgment denying the motion.

        {¶4}   Also, in October 2011, mother filed a motion to remove the guardian ad

litem and a motion to strike her testimony based on the guardian’s alleged bias against

mother. Following a hearing, the trial court denied the motion.

        {¶5}   The trial to the court lasted eight days between February 2012 and March

2012.    Father and mother are medical doctors, both having received their medical

degrees in Egypt. While father is licensed to practice medicine in the United States,

mother never attempted to be licensed in this county. They were married in Egypt in

2000. Three children were born as issue of the marriage, two daughters, one, now age

11; the other, age 9; and a son, age 7.

        {¶6}   Lara Jester, the mother’s friend, testified that in 2003, the parties moved to

Delaware for father to complete his medical residency. They moved into an apartment

across the hall from where Ms. Jester lived with her husband. Ms. Jester said that,

about two months after the parties moved in, she heard them arguing. She said that in

the seven months the parties lived in the apartment, she heard them arguing about

seven times.




                                              2
      {¶7}   Mother said that in early 2004, she and father briefly separated. In 2005,

the parties signed a post-nuptual separation agreement and reconciled. In 2007, father

was employed by Robinson Memorial Hospital in Ravenna, Ohio as a pediatrician, and

the parties moved to the marital residence in Streetsboro, Ohio. Mother said that in late

2007, she began showing symptoms of obsessive compulsive disorder (“OCD”). Her

OCD took the form of fear of contamination from germs and excessive cleaning in the

marital residence.

      {¶8}   Father testified that mother enforced cleaning rituals, which he, the

children, and others entering the home were required to perform.        The father was

required to go through these rituals each time he came home from work. In addition, if

he touched a doorknob, mother immediately cleaned it with antimicrobial wipes. The

children were not permitted to touch or hug father until he completed mother’s cleaning

rituals. The children were likewise required to perform these rituals each time they came

in the house, whether from school or playing outside. In addition, guests entering the

house were required to perform these rituals. The wife enforced these rituals due to her

obsessive fear of contamination from germs. The trial court’s judgment entry outlined in

exhaustive detail the cleaning rituals created and enforced by mother, which involved

cleaning each person entering the house with Clorox, alcohol, various disinfectants, and

other cleaning chemicals.

      {¶9}   Marwa Sadalla, mother’s close friend, testified that she and mother were

like sisters. She said she tolerated mother’s OCD behaviors because of their close

relationship. She said that in September 2010, she and her two children visited mother




                                           3
at the marital residence.    Ms. Sadalla said that before she and her children were

allowed to enter the house, mother required them to perform her cleaning rituals.

       {¶10} Ms. Sadalla said that mother developed blisters on her hands, elbows,

feet, and ankles, and the parties’ younger daughter developed eczema from her

constant exposure to mother’s cleaning chemicals. In addition, the children developed

allergies from their exposure to the cleaning chemicals.

       {¶11} Officer Michael Cipriano of the Streetsboro Police Department testified

that on November 1, 2010, mother called the department alleging she was being

abused by father. The officer did not find any abuse by father, but, while inside the

marital residence, the officer smelled a strong odor of chemicals that he associated with

cleaning products. The smell was so strong that, after being in the house for a short

time, it irritated his sinuses and started to interfere with his breathing. The smell stayed

in his sinuses even after he left the house. As a result of the pervasive chemical fumes

in the house, the officer contacted the Portage County Department of Job and Family

Services reporting his observations and requesting an investigation.

       {¶12} Mother admitted taking prescription-strength medication for her OCD in

February 2008. Father testified that mother voluntarily stopped taking the medication

after awhile because she believed he was contaminating it. Then, from July 2009 to

December 2009, mother took the medication.

       {¶13} In December 2009, mother began treatment with a psychiatrist, Dr. R.A.

Pakeeree.     He diagnosed mother with OCD in February 2010 and prescribed

medication for her. Mother continued taking her medication until August 2010, when,

according to father, mother again stopped taking it.




                                             4
       {¶14} Mother conceded that she stopped taking her medication in September

2010. She said she resumed taking her medication in November 2010, after a court

hearing because, she said, the court made a big deal about her not taking her

medication.

       {¶15} Dr. Robin Tener, clinical psychologist, father’s expert, testified she met

with the parties and their children on numerous occasions between July and November

2011 to conduct an assessment. She said that mother told her she never stopped

taking the medication prescribed for her OCD. However, when confronted with Dr.

Pakeeree’s notes that indicated this was not the case, mother admitted that for some

time in 2010, she stopped taking her medication.

       {¶16} Dr. Tener also testified that mother told her in September and October

2011, that she had been cured of her OCD and was no longer taking medication for it.

However, Dr. Tener concluded that mother still suffers from OCD because, among other

things, the children told her that mother still has them perform her cleaning rituals.

       {¶17} The trial court found that, due to the conflicting reports made by mother

concerning whether she stopped taking her medication, mother’s statement that she

never stopped taking it was not credible. Instead, the court found that mother stopped

taking her medication in August 2010, which resulted in her OCD becoming severe and

her cleaning rituals excessive.

       {¶18} Mother testified that on or about November 18, 2010, the day the court

issued its temporary orders, she moved the children in her bedroom, locked the door,

and would not let them come out. She had an alarm installed on her bedroom door




                                             5
because, she said, she was afraid father would take the children. The court found this

conduct was an attempt by mother to alienate the children from their father.

       {¶19} On the next day, November 19, 2010, while father was trying to take the

children to school as was the family’s custom, mother came out of the house and

became hysterical in front of the children, yelling that father was going to harm the

children and kidnap them.

       {¶20} Dr. Tener, testified that during her interview with mother, she played for

her a tape recording she had made of the November 19, 2010 incident, which, mother

said, proved father was abusing her and the children.

       {¶21} Dr. Tener testified that the tape showed mother was hysterical and

screaming at father in front of the children, “Don’t hurt my kids” over and over again. At

one point, mother yelled “Don’t hurt my kids” 12 times in a row. By Dr. Tener’s count,

mother yelled that plea over 70 times during the 20-minute incident.

       {¶22} Dr. Tener said that, while mother was engaging in these histrionics, father

could be heard in the background calmly telling the children to “get in the car” and telling

mother, “I will take the children to school. * * * You will see them after school.”

       {¶23} Dr. Tener said that, while mother was using the tape to try to prove father

was abusing the children, the tape actually showed it was mother’s “hysteria” that

caused the children to become upset and to resist being put in the car by father.

       {¶24} After father was struggling to get the children in the car for about 20

minutes, mother called the police reporting domestic violence. The trial court found

mother’s actions that day were further evidence of her efforts to alienate the children

from father.




                                              6
       {¶25} As a result of this incident, father was charged in the Portage County

Municipal Court with domestic violence against mother and the parties’ younger

daughter. At trial mother testified the domestic violence consisted of father slapping the

child once in the face. Father was convicted of domestic violence against the younger

daughter, but acquitted as to the charge involving mother. On May 15, 2012, father was

sentenced to probation.

       {¶26} As a result of his conviction, father was terminated from his employment at

Robinson Memorial, effective May 18, 2012.

       {¶27} Mother testified that, after the November 19, 2010 incident, she told the

children that if they did not visit father, he would have her arrested and put in jail. The

court found these statements suggested to the children that father is a bad person trying

to hurt mother, which was additional evidence of mother’s efforts to alienate the children

from father.

       {¶28} The trial court also found that, despite the professional assistance made

available to the parties, mother continued to engage in parental alienation.

       {¶29} Ms. Harris, the children’s guardian ad litem, testified she arranged the first

supervised visit between father and the children to be held in her office on November

22, 2010. This was just three days after the alleged domestic violence incident on

November 19, 2010.        Ms. Harris said that during this meeting, all three children,

including the younger daughter, were affectionate with father and eager to spend time

with him. They did not demonstrate any fear of him. Based on the success of this visit,

father’s visitation with the children was modified from supervised to unsupervised.




                                            7
       {¶30} However, Ms. Harris testified that after this visit, the girls’ attitude toward

father drastically changed.

       {¶31} Ms. Harris said that the next visit she arranged between father and the

children was to be a four-day visit beginning on December 29, 2010. Ms. Harris was to

meet father at the marital residence to pick up the children. At that time she observed

“significant changes” on the part of the parties’ oldest daughter. In mother’s presence,

the child resisted the visit. She was hysterical, crying, and screaming that she was not

going with father and that he would hurt her. Neither the younger daughter nor the

parties’ son resisted the visit and both went in the car. However, as the son was leaving

the home with the guardian, the older daughter grabbed him; kicked the guardian; and

tried to pull the boy away from her. Mother then asked the older daughter, “Will you go

with him if he brings you back tonight?”         She immediately stopped screaming and

agreed to go for the visit. However, a few hours later, the older daughter started yelling

that she wanted to go home. She threatened father that if he did not take the children

home, she would call the police and say father was harming them. As a result, father

took them home, but first took them shopping at the mall.

       {¶32} After December 29, 2010, the younger daughter’s attitude toward father

also changed. Shorty after that visit, father tried to pick up the children from school for a

scheduled visit. When she saw father in the hallway, she began crying and yelling that

he had hurt her.

       {¶33} Based on the girls’ increasing resistance to visits with father and their

escalating accusations against him, his visits with them were changed to supervised.




                                             8
       {¶34} The court referred the parties to Carol Miller of Tallmadge Family

Visitation and Mediation Services to assist with father’s supervised visitation. Ms. Miller

reported that the first visit on February 23, 2011 was difficult due to resistance from the

parties’ daughters. Ms. Miller said that at the second visit, the girls refused to get out of

mother’s car to participate. The girls were screaming and yelling at Ms. Miller, and

mother did nothing to stop their outbursts.

       {¶35} Ms. Miller said that at later visits, the girls continued to refuse to get out of

mother’s car. They would scream that they would not see father; that he hit them; and

that he hurt mother. Mother said they had to visit with father or she would be arrested.

In the girls’ presence, mother said she did not blame them if they did not want to see

father and that she would go to the Supreme Court to keep them from ever having to

live with him. Ms. Miller said the girls’ refusal to visit with father was not due to fear of

him, but, instead, was a “game” to them. Ms. Miller’s statement was based on her

observation of the girls’ smiling and smirking while screaming that father had abused

them, which the trial court had also seen during its in-camera interviews.

       {¶36} As a result of the girls’ resistance, Ms. Miller advised the court that she

could no longer assist with the supervised visitation.

       {¶37} The court then referred the parties to Megin Petruzzi of Child Guidance

and Family Solutions for counseling. However, after several attempts to counsel the

children between March 2011 and September 2011, Ms. Petruzzi terminated services

due to the girls’ refusal to cooperate or even get out of mother’s car.

       {¶38} In July 2011, the court awarded father visitation with the son and

continued supervised visitation with the girls. In court, mother vehemently objected to




                                              9
the court’s ruling and became highly emotional in the courtroom, protesting that the

court had no right to allow father to have so much contact with the son.

      {¶39} Following this hearing, mother attempted to interfere with father’s visitation

with the boy. Mother told him not to talk to the babysitter because she would testify

against mother. This made him fearful about going to the sitter, and father started

taking the boy to work at the hospital with him. Then, mother told the boy he should not

go to the hospital with father because there were germs there and he might become ill.

      {¶40} Dr. Tener testified that mother’s intervention damaged the girls’ attitude

toward their father. Dr. Tener said that mother has engaged in alienating behavior that

has adversely affected the girls’ relationship with father. She said that mother has

instilled in the girls the false belief that father wants to harm them or will contaminate

them with his germs. Further, mother has no insight regarding her OCD or the harm her

OCD and alienating behaviors have caused the girls. Thus, mother sees no problem

with her behavior and no need to change it.

      {¶41} Mother’s expert, Dr. Douglas Darnell, psychologist, also testified that

“mother engaged in * * * alienating behavior” and that the children’s actions are

consistent with “parental alienation syndrome.” Dr. Darnell said that mother’s purported

rescue of the children when there was no real threat to their safety has sent them the

message that father is dangerous or that there is something wrong with him. Dr. Darnell

said mother is an “active alienator,” meaning that she becomes more alienating when

she is under stress, but later, when she is more composed, she can recognize her

alienating behavior was inappropriate.        An active alienator like mother vacillates

between alienating behavior and being more composed, in contrast to the “obsessed




                                           10
alienator,” who is not receptive to counseling. Dr. Darnell stated that in his meetings

with father and the girls, despite the girls’ defiant and blatantly rude behavior toward

father, he tried to reach out appropriately to the girls. However, each time he did, they

“shut him off.” They would turn their chairs around so their backs were facing him.

Despite this rude behavior, father retained his composure.

          {¶42} During the court’s in-camera interviews with the three children, the parties’

daughters said they hated father; that they never want to see him again; and that they

only want to be with mother. Both girls repeatedly told the judge that if the court forced

them to see father, it would “ruin their lives.” The older daughter said that even talking

with someone about father would ruin her life.          The trial court found that the girls

appeared to be reciting negative information about father previously told to them. In

stark contrast, the parties’ son spoke lovingly of his father; said he got along well with

him; and smiled and happily responded to questions about his relationship with his

father.

          {¶43} Mother admitted at trial that her actions have caused the girls to become

alienated from father, but testified that she did not know how to correct the situation she

had created. While she acknowledged the girls’ disrespectful behavior toward father is

inappropriate, she said the girls are justified in not wanting to see him and that she

cannot make them see him.

          {¶44} A teacher and principal at the children’s school both testified that, prior to

the divorce case being filed, the children had a good and affectionate relationship with

father, but that since that time, the girls’ relationship and attitude toward him changed




                                               11
drastically.   For example, they heard the girls call father a liar.     In contrast, both

witnesses said that the son still has a good relationship with father.

       {¶45} Dr. Tener stated in her report that, due to mother’s complete lack of

insight, she will continue to make serious allegations against father and will encourage

the children to do so. The doctor said the children are currently being subjected to

distorted parental influence by mother, which is “markedly unhealthy” for them. She

said the only way to eliminate this harm is to prevent them from future exposure to the

negative influence of mother that is so powerful, it has made it impossible for the

children to accept and benefit from father’s attention and support.

       {¶46} Dr. Tener recommended father be designated the children’s sole

residential parent and that mother be given supervised visitation to ensure her contact

with the children is neutral. She said that as long as the children stay with mother,

nothing will change.

       {¶47} Ms. Harris, the guardian ad litem, also recommended father be designated

the children’s sole residential parent and that mother’s visitation be supervised. The

guardian testified that as long as the girls remain with mother, the situation will not

improve.

       {¶48} Significantly, mother’s expert, Dr. Darnell, also testified mother’s actions

have alienated the children from father. He said “an alienated child becomes a true

believer.” He said that the girls’ alleged fear of father was not justified, but, due to

mother’s actions, it is real to them. Dr. Darnell said that mother had engaged in acts

that constituted parental alienation. Despite the foregoing, Dr. Darnell recommended

mother remain the children’s residential parent.




                                            12
       {¶49} The court entered a highly-detailed, largely single-spaced 84-page divorce

decree on August 22, 2012.       With respect to the allocation of parental rights and

responsibilities, the court made exhaustive factual findings about the parties’ history and

relationship with their children. The court also made findings regarding each of the ten

best-interest factors. The court found mother’s mental health to be the most significant

factor. The court found that mother did not appreciate the severity of her condition or its

devastating impact on the children. The court noted that mother openly blames father

for her OCD. The court found that, due to mother’s actions, the children now associate

her cleaning rituals with father being contaminated and believe that by having contact

with him, they, too, will become contaminated. The court found that, because mother is

so committed to her cleaning rituals, the children now inappropriately see her conduct

as normal.

       {¶50} The trial court found the second most significant factor was mother’s

attempts to alienate the children from father. The court found that, while father never

attempted to interfere with mother’s relationship with the children, mother has taken

deliberate and repeated steps to interfere with father’s relationship with the girls. The

court found mother instilled in the minds of the parties’ daughters a distorted fear of

father. The court found that mother’s actions rise to the level of “extreme parental

alienation.”

       {¶51} The court found that, because mother’s actions inflicted such serious harm

on the children, it was required to take drastic measures to prevent future harm to them.

As a result, the court found it was in the children’s best interests that father be

designated their sole residential parent and that mother have supervised visitation.




                                            13
       {¶52} Mother appeals and father cross-appeals the divorce decree.             Mother

asserts four assignments of error. For her first assigned error, she alleges:

       {¶53} “The Trial Court abused its discretion applying the best interests of the

child analysis stated in R.C. 3109.04(F)(1) when it named Plaintiff-Appellee, who had

been convicted of domestic violence against his daughter during the divorce litigation,

the sole residential and legal custodian while only permitting supervised visitation for the

Defendant-Appellant.”

       {¶54} This court has held that decisions involving the custody of children are

“accorded great deference on review.” Bates-Brown v. Brown, 11th Dist. Trumbull No.

2006-T-0089, 2007-Ohio-5203, ¶18. Thus, any judgment of the trial court involving the

allocation of parental rights and responsibilities will not be disturbed absent a showing

of an abuse of discretion. Id. The term “abuse of discretion” is one of art, connoting

judgment exercised by a court, which does not comport with reason or the record. Gaul

v. Gaul, 11th Dist. Ashtabula No. 2009-A-0011, 2010-Ohio-2156, ¶24.

       {¶55} The    highly   deferential   abuse-of-discretion   standard   is   particularly

appropriate in child custody cases since the trial judge is in the best position to

determine the credibility of the witnesses, and there “may be much that is evident in the

parties’ demeanor and attitude that does not translate well to the record.” Wyatt v.

Wyatt, 11th Dist. Portage No. 2004-P-0045, 2005-Ohio-2365, ¶13.             In determining

whether the trial court has abused its discretion, a reviewing court is not to weigh the

evidence, but, rather, must determine from the record whether there is some competent,

credible evidence to sustain the findings of the trial court. Clyborn v. Clyborn, 93 Ohio

App.3d 192, 196 (3d Dist.1994).




                                             14
       {¶56} Mother argues the court did not explain why it did not give much weight to

the conviction. However, the court expressly stated in the decree that it considered

father’s conviction. The court ranked this factor as fourth in importance out of the ten

best-interest factors. The court also heard the testimony of Dr. Tener, who summarized

a tape recording mother had made of the incident giving rise to father’s conviction.

Based on the evidence presented, the court found that, in light of the circumstances,

father’s actions on November 19, 2010, were reasonable and necessary to get the

children in his car so he could take them to school.

       {¶57} Next, mother argues the court should have given more weight to father’s

long history of engaging in abuse against his family. By way of example, she refers to a

2004 civil protection order allegedly issued by a Delaware court.        However, that

protective order, in addition to being remote in time, is not referenced by mother as

being in the record. Therefore, if it was issued, we have no idea of its terms or the

reasons it was granted.

       {¶58} As another example of father’s alleged abuse, mother references the

testimony of her friend, Lara Jester, who lived across the hall from the parties in

Delaware for seven months.       Ms. Jester testified that on one occasion, she heard

“shuffling noises” coming from the parties’ apartment, which she interpreted as

someone being pushed. However, the trial court sustained father’s objection to Ms.

Jester’s speculation as to the cause of the shuffling noise and mother has not appealed

this ruling. Thus, mother’s reliance on this testimony is unavailing.

       {¶59} As another example of father’s alleged abuse, mother references her and

her sister’s testimony that on one occasion father slapped mother.        However, the




                                            15
incident was not reported or corroborated by any independent evidence and mother

sought no medical treatment for this alleged slapping incident.

       {¶60} As a final example of father’s alleged abuse, mother references the girls’

allegations that father had abused them. However, in the divorce decree, the trial court

questioned the reliability of the girls’ reports of abuse. In support, the court noted that,

during the in-camera interviews, the younger daughter could not provide any detail

regarding alleged incidents of abuse and the older daughter provided the court with

inconsistent answers to the court’s questions regarding father’s alleged abuse.

       {¶61} Next, mother argues the trial court placed too much weight on her OCD

because she alleges it is now under control. In support, she referred to the medical

chart of her psychiatrist, Dr. Pakeeree. In Dr. Pakeeree’s report, dated February 1,

2010, he diagnosed mother as having OCD and said she had a five-year history of

obsessive-compulsive symptoms, which consisted of compulsive cleaning.                  Dr.

Pakeeree prescribed medication for mother’s OCD, but he reported she was “not

receptive to any behavior modification treatment.”       Dr. Pakeeree’s notes regarding

mother’s monthly visits between February 2010 and April 2010 show mother reporting

she still has obsessive-compulsive symptoms and rituals. In Dr. Pakeeree’s report of

November 10, 2010, he said mother “has a diagnosis of OCD” with symptoms being

compulsive cleaning and obsessive rituals. Dr. Pakeeree noted that in September 2010,

mother voluntarily stopped taking the medication he had prescribed for her because she

did not feel she needed it. Dr. Pakeeree’s notes show that he saw mother once a

month between November 1, 2010 and September 2011, during which visits mother

said her OCD symptoms were now under control. However, the record does not include




                                            16
any follow-up reports from Dr. Pakeeree after November 10, 2010. Thus, the last time

Dr. Pakeeree expressed an opinion regarding mother’s OCD was in November 2010.

Moreover, Dr. Pakeeree did not testify at trial.

       {¶62} In further support of mother’s argument that the court put too much weight

on her OCD, she refers to the psychological evaluation performed by the court-

appointed psychologist, Virginia Clark, Ph.D., of Western Reserve Psychologists.

However, in her report, dated March 31, 2011, four months after Dr. Pakeeree’s last

report, Dr. Clark said that mother has moderately severe OCD with symptoms of

excessive cleaning rituals. At that time, Dr. Clark stated that mother currently “struggles

with moderately severe OCD.”

       {¶63} Finally, mother argues the trial court’s findings contradicted Dr. Clark’s

recommendation that mother remain the children’s residential parent. However, this

recommendation was tempered by Dr. Clark’s finding that mother’s “OCD significantly

impacts the children’s development and adjustment as they accommodate her

compulsive rituals.” Further, Dr. Clark recommended that mother “should remain on

medication and participate in cognitive behavioral therapy for the treatment of her

OCD.” Thus, Dr. Clark found that mother still has OCD and OCD symptoms, including

compulsive cleaning rituals.

       {¶64} In any event, both Dr. Tener and Attorney Pamala Harris, the children’s

guardian ad litem, recommended that father be designated residential parent of the

children and that mother’s visitation be supervised. We note that Dr. Tener’s report was

dated November 30, 2011, more than one year after Dr. Pakeeree’s last report

regarding mother’s OCD and eight months after Dr. Clark’s report. The trial in this case




                                             17
began on February 6, 2012. Thus, the most recent doctor’s report prior to trial was that

of Dr. Tener.

       {¶65} We therefore hold the trial court did not abuse its discretion in allocating

parental rights and responsibilities.

       {¶66} Mother’s first assignment of error is overruled.

       {¶67} For her second assigned error, mother alleges:

       {¶68} “The trial court committed reversible error by not applying Delaware

contract law to determine the validity of the Separation Agreement.”

       {¶69} Mother argues the trial court erred in not applying Delaware law in ruling

on her motion to enforce the parties’ 2005 separation agreement. However, the trial

court did not address the choice of law issue because mother did not raise it in her

motion to enforce. “‘[A]n appellate court will not consider any error which counsel for a

party complaining of the trial court’s judgment could have called but did not call to the

trial court’s attention at a time when such error could have been avoided or corrected by

the trial court.’” Warren v. Warner Realty, 11th Dist. Trumbull No. 98-T-0117, 1999 Ohio

App. LEXIS 4976, *5 (Oct. 22, 1999), quoting State v. Childs, 14 Ohio St.2d 56 (1968),

paragraph three of the syllabus. Such failure constitutes a waiver of the right to raise the

error on appeal. Warren, supra. Because mother failed to raise the choice of law issue

in her motion to enforce, it is waived. In any event, the court did not find the contract to

be unenforceable under Ohio law. It simply exercised its discretion not to enforce it.

       {¶70} The 2005 separation agreement included several financial provisions. It

provided that in any future divorce case, father would be liable for all mother’s attorney

fees and her living expenses until the divorce was final. The agreement also included a




                                            18
provision for payment of a $150,000 advance of the division of the parties’ property.

This payment was to be in addition to father’s obligation to pay mother’s attorney fees.

Mother argues the financial provisions of the separation agreement were enforceable

against father.   However, the separation agreement also provided that it “may be

offered in evidence in any [divorce] suit, and if acceptable to the Court, shall be

incorporated by reference in the decree that may be granted in such suit.” (Emphasis

added.)

      {¶71} In the judgment denying mother’s motion to enforce, the court found that,

since the time the parties signed the separation agreement, the parties have had a third

child, the son.   The court also found that, since the execution of the separation

agreement, there has been a significant change in the parties’ financial circumstances.

In 2005, when the separation agreement was executed, father was employed as a

medical resident earning $40,000/year with prospects of earning $180,000/year.

However, as of the hearing on the motion, the marital residence was in foreclosure and

the amount owed on the mortgage was in excess of the current market value. As a

result, the trial court decided not to enforce the separation agreement.

      {¶72} Moreover, the language used in the separation agreement providing that it

would be enforced only if the court finds it to be “acceptable” demonstrates the parties

intended to give the court discretion in determining whether to enforce the agreement.

      {¶73} The reasons articulated in the court’s judgment entry demonstrate that the

court exercised its discretion in not adopting the separation agreement. Because the

court’s decision was based on reason and the record, we cannot say the trial court

abused its discretion in not enforcing the parties’ separation agreement.




                                            19
       {¶74} Mother’s second assignment of error is overruled.

       {¶75} For her third assignment of error, mother contends:

       {¶76} “The Trial Court committed prejudicial error by not removing Guardian Ad

Litem Pamela [sic] Harris from the case and by not striking her testimony from the

record.

       {¶77} This court has held that a trial court’s ruling on a motion to remove a

guardian ad litem is reviewed for an abuse of discretion. Meyers v. Hendrich, 11th Dist.

Portage No. 2009-P-0032, 2010-Ohio-4433, ¶21.

       {¶78} Mother argues the trial court erred in not removing Ms. Harris as guardian

or striking her testimony because she offered to testify for father in his criminal trial, in

violation of R.Sup. 48(D)(2). That rule provides that a guardian ad litem shall maintain

independence, objectivity, and fairness as well as the appearance of fairness in

dealings with parties and professionals.

       {¶79} However, mother does not reference any evidence in the record that

shows that Ms. Harris offered to testify for father or that she in fact testified for him. In

fact, Ms. Harris testified that father’s criminal defense attorney asked her to testify about

a video she had seen, but she declined.

       {¶80} Next, mother argues the fact that Ms. Harris had a conversation with her

at court on the day of father’s criminal trial shows her bias.        However, Ms. Harris

testified she merely said “hello” to mother because she had already said “hello” to father

and wanted to be fair to both. Mother admitted Ms. Harris told her she was only at the

trial to observe and take notes for the divorce case. Thus, there is no evidence Ms.

Harris acted with any bias or unfairness with respect to mother.




                                             20
      {¶81} Mother next argues that, because Ms. Harris did not file a written report

with the court regarding a conflict between her recommendation and the girls’ wishes,

as required by Sup.R. 48(D)(8), she violated that rule. Mother argues that if Ms. Harris

had filed such a report, she would have had more time to find “a better expert witness”

than Dr. Darnell. However, violations of the Rules of Superintendence are not grounds

for reversal. The Supreme Court of Ohio has held:

      {¶82} [The] “Rules of Superintendence are designed (1) to expedite the

             disposition of both criminal and civil cases in the trial courts of this

             state, while at the same time safeguarding the inalienable rights of

             litigants to the just processing of their causes; and (2) to serve that

             public interest which mandates the prompt disposition of all cases

             before the courts.” State v. Singer, 50 Ohio St.2d 103, 109-110

             (1977).

      {¶83} Further, the Rules of Superintendence

      {¶84} are not the equivalent of rules of procedure and have no force

             equivalent to a statute. They are purely internal housekeeping rules

             which are of concern to the judges of the several courts but create

             no rights in individual defendants. State v. Gettys, 49 Ohio App.2d

             241, 243 (3d Dist.1976). Accord State v. Navedo, 11th Dist. Lake

             No. 2007-L-094, 2008-Ohio-2324, ¶18 * * *.

      {¶85} In any event, mother concedes she retained her own expert, Dr. Darnell.

Moreover, the record is silent as to who mother would have allegedly retained if she had




                                            21
been provided written notice of the difference between Ms. Harris’ recommendations

and the girls’ wishes. Thus, mother failed to prove prejudice.

       {¶86} We therefore hold the trial court did not abuse its discretion in denying

mother’s motion to strike and to exclude the guardian’s testimony.

       {¶87} Mother’s third assignment of error is overruled.

       {¶88} For her fourth and final assignment of error, mother alleges:

       {¶89} “The Trial Court abused its discretion in assessing credibility of Appellant

and witness Mawra Sadalla.”

       {¶90} Mother argues the trial court abused its discretion in finding father and

mother’s friend Marwa Sadalla to be credible witnesses.           However, this court has

repeatedly held that “[w]itness credibility rests solely with the finder of fact.” River Oaks

Homes, Inc. v. Twin Vinyl, Inc., 11th Dist. Lake No. 2007-L-117, 2008-Ohio-4301, ¶27.

Thus, “the finder of fact is entitled to believe all, part, or none of the testimony of any

witness.” Id.

       {¶91} As a result, the trial court was entitled to find father and Ms. Sadalla to be

credible witnesses. While mother points out certain alleged inconsistencies in father’s

testimony and an alleged financial relationship between Ms. Sadalla’s husband and

father, the trial court obviously found these issues to be insignificant in assessing the

credibility of these witnesses. Because the trier of fact is in a better position to observe

the witnesses’ demeanor and weigh their credibility, the trial court was entitled to make

this call. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. We

thus hold the trial court did not abuse its discretion in finding these witnesses to be

credible.




                                             22
       {¶92} Mother’s fourth assignment of error is overruled.

       {¶93} Father asserts two assignments of error for his cross-appeal. For his first

assigned error, he alleges:

       {¶94} “The trial court abused its discretion when it failed to offset Plaintiff/Cross-

Appellants’ hypothetical social security benefit against his Ohio Public Employee’s

Retirement Service pension plan.”

       {¶95} This court has held:

       {¶96} “Generally, pension or retirement benefits earned during the course

              of a marriage are marital assets to be considered when dividing

              marital property. Hoyt v. Hoyt, 53 Ohio St.3d 177 (1990) * * *. An

              appellate court applies an abuse of discretion standard of review to

              a trial court’s decision regarding the division of retirement assets.

              Levine v. Levine, 4th Dist. Washington No. 98 CA 34, 1999 Ohio

              App. LEXIS 4209 (Sept. 3, 1999).” DeChristefero v. DeChristefero,

              11th Dist. Trumbull No. 2001-T-0055, 2003-Ohio-3065, ¶28.

       {¶97} Father presented two reports from Pension Evaluators regarding his

retirement benefit. The first report concluded the present value of his PERS pension

with Robinson Memorial Hospital, is $119,129.          The second report concluded the

present value of his “hypothetical social security benefit,” if he had worked in the private

sector during the marriage, is $122,315.

       {¶98} Father argues that the trial court abused its discretion by not offsetting his

hypothetical social security benefit against his PERS benefit pursuant to the rule

adopted by the Superior Court of Pennsylvania in Cornbleth v. Cornbleth, 397 Pa.




                                             23
Super. 421 (1990) and this court’s decision following Cornbleth in Thompson v.

Thompson, 11th Dist. Portage No. 2010-P- 0058, 2011-Ohio-6689.

       {¶99} This court in Thompson noted that, unlike PERS, state courts cannot

divide social security benefits pursuant to federal statute. Id. at ¶18. This court noted

this can create an inequity when one spouse contributes to the social security system

and the other spouse contributes to a government pension system like PERS. Id. Public

employees contributing to a pension system like PERS may be penalized because their

pension is marital property subject to division, while their spouse's social security is not

marital property under federal statute. Id.

       {¶100} In Thomspon, this court stated:

       {¶101} “To facilitate a process of equating [public pension] participants and

              Social Security participants we believe it will be necessary to

              compute the present value of a Social Security benefit had the

              [public pension] participant been participating in the Social Security

              system. This present value should then be deducted from the

              present value of the [public] pension at which time a figure for the

              marital portion of the pension could be derived and included in the

              marital estate for distribution purposes. This process should result

              in equating, as near as possible, the two classes of individuals for

              equitable distribution purposes.” Id. at ¶15, quoting Cornbleth,

              supra, at 427.

       {¶102} Thus, father argues that before his pension can be divided as marital

property, the present value of his hypothetical social security benefit, which he would




                                              24
have received if contributing to social security, should be deducted from the present

value of his public pension benefit to determine the marital portion of the pension.

Under father’s argument, the trial court should have subtracted his hypothetical social

security benefit, i.e., $122,315, from his OPERS benefit, i.e., $119,129, leaving $0.00 as

the amount of his pension subject to division.

       {¶103} However, the Superior Court of Pennsylvania later declined to follow its

holding in Cornbleth in McClain v. McClain, 693 A.2d 1355 (1997), because the wife in

McClain had no pension. The court held: “Clearly, it would be inequitable under the

facts of this case to credit Husband with the value of hypothetical social security

contributions when Wife, unlike the [wife] in Cornbleth, * * * has no appreciable social

security benefits of her own to balance against such a credit. Id. at 359.

       {¶104} We note that in Thompson, like Cornbleth, one spouse had contributed to

social security, while the other had an STRS benefit. Thus, this case is distinguishable

from Thompson and Cornbleth because mother has no social security benefits.

Pursuant to McClain, supra, because mother has no pension of her own, the trial court

did not abuse its discretion in deciding not to credit father with the value of his

hypothetical social security benefit.

       {¶105} Father’s first assignment of error is overruled.

       {¶106} For his second and final assigned error, father argues:

       {¶107} “The trial court abused its discretion in granting a downward deviation of

Wife’s child support obligation.”

       {¶108} This court reviews an award of child support for an abuse of discretion.

Holt v. Holt, 11th Dist. Trumbull No. 2002-T-0147, 2004-Ohio-4536, ¶11.




                                            25
       {¶109} Father argues the trial court abused its discretion in allowing a downward

deviation of mother’s child support obligation. We disagree.

       {¶110} Based on father’s loss of his job, effective May 2012, the trial court

imputed minimum wage to him and imputed $29,559 to mother based on her part-time,

minimum-wage job working for her brother and a vocational assessment presented at

trial. Using these figures, mother’s guideline child support obligation was $633/month.

The trial court granted a downward deviation, reducing her obligation to $375/month. In

support of this deviation, the court cited mother’s lack of income and the costs she will

incur for counseling and supervised visitation. We note that, although father lost his

current job following his conviction of domestic violence, his potential earning capacity is

greater than that of mother, given her limited English language skills and her minimal

prior employment.

       {¶111} Since the court justified its deviation in the amount of child support owed

by mother by stating its reasons, which are supported by the record, we cannot say the

court abused its discretion.

       {¶112} Father’s second assignment of error is overruled.

       {¶113} For the reasons stated in the opinion of this court, appellant’s and cross-

appellant’s assignments of error are overruled. It is the judgment and order of this court

that the judgment of the Portage County Court of Common Pleas, Domestic Relations

Division, is affirmed.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,




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concur.




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