[Cite as Bennett v. Bennett, 2012-Ohio-5788.]




               IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

GEORGE F. BENNETT                                       :

        Plaintiff-Appellant/                            : C.A. CASE NO.       2012 CA 36
        Cross-Appellee
                                                        : T.C. NO.     09DR1176
v.
                                                        :    (Civil appeal from Common
JILL M. BENNETT                                               Pleas Court, Domestic Relations)

        Defendant-Appellee/                             :
        Cross-Appellant
                                                        :

                                                ..........

                                            OPINION

                         Rendered on the          7th        day of     December      , 2012.

                                                ..........

DOUGLAS W. GEYER, Atty. Reg. No. 0022738 and SAMANTHA L. BERKHOFER,
Atty. Reg. No. 0087370, 451 Upper Valley Pike, Springfield, Ohio 45504
       Attorneys for Plaintiff-Appellant/Cross-Appellee

JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No.
0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402
      Attorneys for Defendant-Appellee/Cross-Appellant

                                                ..........

FROELICH, J.

                 {¶ 1} George F. Bennett appeals from a judgment entry and decree of
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divorce of the Clark County Court of Common Pleas, Domestic Relations Division, which

awarded custody of the Bennett children to Jill Bennett, determined that there was no

separate property traceable to personal injury settlements several years earlier, and divided

the parties’ assets equally, with the exception of a son’s medical bill, which Mrs. Bennett

was ordered to pay. Mrs. Bennett cross-appeals.

       {¶ 2}     On appeal, Mr. Bennett challenges the trial court’s decision to reject his

shared parenting plans in favor of awarding custody to Mrs. Bennett. He also objects to the

trial court’s decision to equally divide funds in a particular account, some of which he claims

originated from a personal injury claim, rather than treating those funds as his separate

property. Mrs. Bennett claims that the trial court abused its discretion in concluding that a

medical debt related to their son’s treatment for a dog bite was “non-marital” and in ordering

her to pay the debt in its entirety. For the reasons that follow, the judgment of the trial court

will be affirmed in part, reversed in part, and remanded.

                                                I

       {¶ 3}     The Bennetts were married in 1999 and filed for divorce in 2011. Two

children were born of the marriage, who were ages 10 and 8 at the time of the divorce. In

2003, Mr. Bennett was injured in a car accident during the course of his employment with

the Clark County Sheriff’s Department. As a result of the accident, he sustained back

injuries and a brain aneurism. The parties received payments from several sources in

connection with Mr. Bennett’s injuries. While the parties were separated, one of their sons

was bitten by Mrs. Bennett’s dog, requiring surgery and incurring medical bills.

       {¶ 4}     After the parties filed for divorce, the disputed matters were heard by a
                                                                                              3

magistrate.    The magistrate issued a 51-page decision, which recounted the evidence

presented and provided detailed explanations for most of the magistrate’s findings and legal

conclusions. Both parties filed objections to the magistrate’s decision. The trial court

overruled all of the objections and adopted the magistrate’s order. Because the trial court

adopted the magistrate’s conclusions with a less detailed discussion of the evidence than that

contained in the magistrate’s decision, we will refer to and rely on many of the magistrate’s

findings – which the trial court approved – in reviewing the trial court’s judgment.

       {¶ 5}     Mr. Bennett appeals, raising two assignments of error, and Mrs. Bennett

raises one assignment of error on cross-appeal.

                                               II

       {¶ 6}     In his first assignment of error, Mr. Bennett contends that the trial court’s

decision to designate Mrs. Bennett as the residential parent for the parties’ two minor

children, rather than to adopt one of the shared parenting plans he proposed, was against the

manifest weight of the evidence and was not in the best interest of the children.

       {¶ 7}     Pursuant to R.C. 3109.04, the factors that a court is to consider in allocating

parental rights and responsibilities include: (a) the wishes of the parents; (b) if interviewed,

the child’s wishes and concerns; (c) the child’s interaction and interrelationship with parents,

siblings, and other significant people; (d) the child’s adjustment to home, school, and

community; (e) the mental and physical health of all persons involved; (f) which parent is

more likely to abide by court orders regarding parenting time rights; and (g) whether under a

shared-parenting plan one parent has interfered with the other’s parenting rights.

       {¶ 8}      A reviewing court may not reverse a custody determination unless the trial
                                                                                           4

court has abused its discretion. Pater v. Pater, 63 Ohio St.3d 393, 588 N.E.2d 794 (1992).

The approval or rejection of a shared parenting plan lies within the court’s discretion. R.C.

3109.04(D)(1)(b). An abuse of discretion implies an attitude of the trial court that is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

218, 450 N.E.2d 1140 (1983).

       {¶ 9}     We defer to the trial court on findings of fact because “[t]he knowledge a

trial court gains through observing the witnesses and the parties in a custody proceeding

cannot be conveyed to a reviewing court by a printed record.” Beismann v. Beismann, 2d

Dist. Montgomery No. 22323, 2008-Ohio-984, ¶ 20, citing Miller v. Miller, 37 Ohio St.3d

71, 74, 523 N.E.2d 846 (1988).

       {¶ 10}    At the hearing, it was undisputed that there were hard feelings between the

parties because Mr. Bennett had an affair, which, at least in part, eventually led to the end

of their marriage. It was also undisputed that Mrs. Bennett had been the primary caregiver

and that Mr. Bennett was a good father to the children. However, Mrs. Bennett described

her relationship with Mr. Bennett during the separation as “a roller coaster,” stating that

sometimes Mr. Bennett was nice and sometimes he was manipulative. She testified that

their communication was not good and that they had difficulty reaching agreement on issues

related to the boys.

       {¶ 11}    Mrs. Bennett also described incidents where Mr. Bennett intentionally

made physical contact with her, threw her phone against a wall and broke it, and hid her car

keys. She recounted instances in which he had locked himself in a room with the children

at their home to “hav[e] his time” with them and had not allowed her to have contact with
                                                                                              5

the boys while they were with him for a visit. She stated that there was no trust between

them because of his affair and other lies she had discovered after the affair. She also

testified that, as a teacher, she had seen kids from shared parenting homes who were “a royal

mess,” forgetting clothes and homework, etc., as they went back and forth from house to

house.     Because of her communication problems with Mr. Bennett and her other

experiences with shared parenting, she did not think such an arrangement was in the boys’

best interest.

         {¶ 12}   Mr. Bennett presented the testimony of several friends and relatives who

stated that he was a good father, that he put his children first among his priorities, and that,

in their opinions, a shared parenting plan or Mr. Bennett’s extensive involvement with the

children after the divorce was in the children’s best interest.

         {¶ 13}   A psychologist who evaluated the parents and the guardian ad litem each

recommended to the court that a sole-custody arrangement would serve the best interest of

the children and that Mrs. Bennett be designated the custodial and residential parent.

         {¶ 14}   In a very thorough decision, the magistrate discussed the factors set forth at

R.C. 3109.04 for determining the best interests of children in making a custody

determination.    The evidence showed that both parties were capable parents. But the

magistrate noted that they had complained of and provided examples of communication and

cooperation failures, and he noted that there was “little substantive communication between

[Mrs. Bennett] and [Mr. Bennett] about important matters concerning the raising of their

children. Overall, it is fair to say that [the parties] do not trust each other and cannot now

work with each other for the benefit of their children.” The magistrate concluded that the
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parents could not jointly share in the decision-making process regarding the best interests of

the children and that they had demonstrated little ability or desire to encourage a loving

relationship with the other parent. Thus, the magistrate found that shared parenting was not

in the best interest of the children, and the trial court agreed with this conclusion.

        {¶ 15}         Mr. Bennett contends on appeal, as he did in the trial court, that the trial

court should have recognized Mrs. Bennett’s “proven anger, resentment, and desire to find

revenge” for his affair as a motivation in her opposition to shared parenting. He does not

deny that friction exists between them. But he expresses confidence that cooperation will

“usually quickly redevelop[ ] between two formerly rational and nurturing parents,” that the

strain between Mrs. Bennett and him will abate over time, and that shared parenting is in the

boys’ best interest.

        {¶ 16}    Although there was evidence to support Mr. Bennett’s assertion that both

parents have a “loving, caring, and nurturing relationship” with the children, the decision to

award shared custody focuses as much on the parents’ ability and willingness to work with

one another as on their relationships with the children. Based on the evidence presented in

this case, the trial court did not abuse its discretion in concluding that shared parenting was

not a viable option.

        {¶ 17}    The first assignment of error is overruled.

                                                  III

        {¶ 18}     In his second assignment of error, Mr. Bennett contends that the trial court

erred in concluding that funds in a particular joint account were not traceable to the

payments from his personal injury claims related to the 2003 accident, in concluding that the
                                                                                               7

funds in the account were marital assets, and in dividing those assets in the divorce.

       {¶ 19}    Upon the application of either party in an action for divorce, the trial court

must determine what constitutes marital property and what constitutes separate property,

divide the marital property equitably between the parties, and “disburse a spouse’s separate

property to that spouse.” R.C. 3105.171(D). The definition of separate property includes

“all real and personal property and any interest in real or personal property that is found by

the court to be * * * [c]ompensation to a spouse for the spouse’s personal injury, except for

loss of marital earnings and compensation for expenses paid from marital assets.” R.C.

3105.171(A)(6)(a)(vi). However, if any portion of a personal injury award or settlement is

attributable to the “uninjured” spouse’s loss of consortium claim, then that portion of the

award is the separate property of the “uninjured” spouse. Mayer v. Mayer, 5th Dist. Stark

No. 2010-CA-277, 2011-Ohio-1884, ¶ 8, citing Lust v. Lust, 3d Dist. Wyandot No.

16-02-07, 2002-Ohio-3629.

       {¶ 20}    Where an award is linked to a personal injury, “[t]he starting point is to

presume the benefits are separate [property] pursuant to [R.C. 3105.171(A)], and then it is

the burden of the party seeking to establish the property is marital to rebut the statutory

presumption.”    Mayer at ¶ 10.

       {¶ 21}    The factual findings of a trial court relating to its classification of property

as marital or separate are reviewed to determine whether they are against the manifest weight

of the evidence, and will not be reversed if they are supported by some competent and

credible evidence. Kovacs v. Kovacs, 6th Dist. Sandusky No. S-09-039, 2011-Ohio-154, ¶

13.
                                                                                           8

       The Disputed Property

       {¶ 22}    During the Bennetts’ marriage, they each maintained a separate checking

account into which their respective paychecks were deposited, although both spouses were

named on the accounts for estate planning purposes. The parties also had an account which

they treated as a “joint” account, and their sons had accounts into which the parties

occasionally transferred funds.

       {¶ 23}    The evidence offered at the hearing established that the Bennetts received

the following amounts related to Mr. Bennett’s accident: $29,000 from the insurer of the

driver who was at fault (USAA), $112,000 from Clark County’s insurance pool (CORSA),

and $12,880 from the Ohio Bureau of Workers’ Compensation. These payments resulted

from negotiations in which the Bennetts were represented by counsel, but not from litigation,

and represent the amount received by the Bennetts after the payment of attorney fees. It

does not appear that any complaint was ever filed. The exact nature of the Bennetts’ claims

and of the payments they received, i.e., the amount or proportion attributable to loss of

consortium, lost wages, medical bills, etc., was not specified in the settlement documents

provided in the current action.

       {¶ 24}    In 2004, both parties signed the settlement agreement with USAA; the

check for $29,000, which came through the Bennetts’ attorney’s office, was made out to and

endorsed only by Mr. Bennett. No evidence was presented as to where that check was

deposited but, at around that time, $24,000 was deposited into Mr. Bennett’s checking

account.   Mr. Bennett testified that an additional $4,000 was split between the sons’

accounts at that time.
                                                                                           9

       {¶ 25}    The Bennetts received the payment of $112,000 from the CORSA

settlement in 2005. The funds from CORSA, which also came through the attorney’s

office, were distributed in a check made out only to Mr. Bennett.         No evidence was

presented as to where this check was initially deposited, but Mr. Bennett testified that

$94,000 was transferred into the account of one of his sons, temporarily, while Mr. Bennett

decided where to deposit it more permanently. Later, $80,000 was transferred from the

son’s account to the parties’ joint account.

       {¶ 26}    In 2007, Mr. Bennett received $12,880 from the Bureau of Workers’

Compensation. These funds were deposited into the joint account.

       {¶ 27}    Over the years, money from the joint account was used to make several

large purchases, often in combination with marital funds. These purchases included a hot

tub, a camper, an all-terrain vehicle, a car for Mrs. Bennett, and a down payment and some

improvements on an investment property. Some documentation was presented as to the

purchases in question, but the exact sources of the monies used and their amounts was not

clear with respect to all the purchases.

       {¶ 28}    In Mr. Bennett’s testimony, he admitted that, in addition to the settlement

monies, other deposits had been made into the joint account at various times; he could not

state with certainty what the sources of those funds had been. He allowed for the possibility

that some of those funds had come from Mrs. Bennett’s income. A number of smaller

withdrawals were also made for which Mr. Bennett could provide no explanation.

       {¶ 29} Mrs. Bennett testified that some of the money that was paid in the

settlements was in compensation for her loss of consortium as a result of the accident, as
                                                                                            10

well as Mr. Bennett’s injuries, pain, and suffering.       In support of this argument, she

produced a letter that she had written to USAA during the negotiations, which recounted

how the accident had affected their family life.       Mr. Bennett claimed that all of the

payments, including workers’ compensation, were attributable to his injuries, pain, and

suffering. He denied that the funds were compensation for lost wages and, in fact, he

denied that he had lost any wages.

       {¶ 30}     Mrs. Bennett described the joint account into which some of the settlement

funds had been deposited as a savings account; she stated that the couple had agreed to try to

maintain about $90,000 in the account, and that when the account balance dropped below

this amount because of purchases, they built the balance back up by depositing investment

income and income tax refunds. Mrs. Bennett claimed that all of the money remaining in

the joint account at the end of the marriage was marital property; Mr. Bennett admitted that

the funds had been kept in a joint account, but he claimed that the funds were traceable to his

personal injury settlement and thus that the entire amount was his separate property.

       {¶ 31}     Approximately $90,000 remained in the joint account near the time of the

parties’ separation.   Mrs. Bennett withdrew $45,090 in April 2008; the next day, Mr.

Bennett withdraw the remaining balance of $44,732.           Mrs. Bennett testified that she

withdrew half of the money and placed it in a certificate of deposit only in her name because

she was fearful that Mr. Bennett was preparing to leave her, and she wanted to provide for

her financial security in the event that he did.

       {¶ 32}     Amounts that had previously been spent on joint purchases or had been

deposited into other accounts were not in dispute at the time of the divorce; those funds, or
                                                                                             11

the purchases made with those funds, were treated as marital assets.

       The Burden of Proof

       {¶ 33}    In its judgment, the trial court correctly observed that any payment to a

spouse for personal injury that was traceable to “pain, suffering, and disfigurement” was the

separate property of that spouse, but that any portion attributable to “lost wages, lost earning

capacity, and medical and hospital expenses” paid during the marriage was marital property

subject to division in a divorce.   The trial court stated, however, that Mr. Bennett had the

burden of proof by a preponderance of the evidence, because “[m]oney acquired during the

marriage is presumed to be marital unless proven to be separate property,” and Mr. Bennett

was the party seeking to have the property declared separate property.

       {¶ 34}    We disagree with the trial court’s statement that all money acquired during

marriage is presumed to be marital property, regardless of the source, thereby placing the

burden of proof on the party asserting a right to separate property. R.C. 3105.171 clearly

states that assets traceable to personal injury awards, inheritances, and other enumerated

sources are separate property. The fact that such assets are acquired during a marriage does

not automatically negate the character of those assets. However, it is correct that where

separate and marital assets have been commingled, the party asserting the existence of

separate property has the burden to establish, by the preponderance of the evidence, the

traceability of the assets to separate property. Maloney v. Maloney, 160 Ohio App.3d 209,

2005-Ohio-1368, 826 N.E.2d 864, ¶ 23 (2d Dist.), citing Peck v. Peck, 96 Ohio App.3d 731,

645 N.E.2d 1300 (12th Dist.1994); Fisher v. Fisher, 2d Dist. Montgomery No. 20398,

2004-Ohio-7255, ¶ 16.
                                                                                             12

        The Trial Court’s Determination Regarding the Nature of the Property

        {¶ 35}    The trial court made several findings with respect to Mr. Bennett’s

assertion that all of the settlement monies were his separate property and that the funds in the

parties’ joint account were traceable to those settlements. The trial court concluded that Mr.

Bennett’s workers’ compensation award might have been for permanent partial disability,

which compensates for “permanent residual problems stemming from the injury,” or

temporary total disability, which replaces lost wages while an injured worker is unable to

work. The trial court found that “[t]here is no evidence that the Bureau [of Workers’

Compensation] pays for pain and suffering” and that there is no “loss of consortium” claim

available to a spouse through Workers’ Compensation. Because no evidence was offered at

the hearing, other than Mr. Bennett’s testimony, as to how his workers’ compensation award

was determined or how it was “apportioned [between] his personal injury, future earnings or

economic losses,” the trial court determined that this portion of the settlement was “all

commingled from the start” and could not be traced to separate property. The trial court

treated it as marital property.

        {¶ 36}    The trial court concluded that the Bennetts’ claims against USAA and

CORSA encompassed claims for both Mr. Bennett’s injuries and Mrs. Bennett’s loss of

consortium. The settlements, however, did not apportion the damages between these two

types of claims. The court found that the inability to determine how the settlements were

apportioned between the parties’ claims was “fatal to proving any claim of separate

property.” Further, the court determined that “there was a lot of commingling” of the

settlement monies with marital monies from 2005 until the parties’ separation, “which
                                                                                          13

further made the tracing of the settlement monies with any confidence impossible.”

       {¶ 37}    Based on the foregoing conclusions, the trial court found that there was no

separate property and ordered that the marital property, including the approximately $90,000

balance in the joint account near the time of their separation, be divided equally. This

division was accomplished through the division of the parties’ assets and a short-term plan

by which Mr. Bennett would make monthly payments to Mrs. Bennett.

       {¶ 38}    Although the evidence supported Mr. Bennett’s assertion that he had

received a personal injury award that, were it traceable, would have constituted his separate

property, the evidence also supported the trial court’s inference that Mrs. Bennett had

received funds in payment of her loss of consortium claim, which would have constituted

her separate funds, if traceable. Because the apportionment of the USAA and CORSA

awards between payments for Mr. Bennett’s pain and suffering, lost wages (if any), and Mrs.

Bennett’s loss of consortium was never delineated, and because the parties had commingled

their separate property with marital assets for many years following the awards, the trial

court reasonably concluded that the assets could not be traced. Under these circumstances,

an equal division of the account into which separate and marital funds had been deposited

was equitable.

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

                                             IV

       {¶ 40}    In her cross-assignment of error, Mrs. Bennett argues that the trial court

improperly ordered her to pay the entire debt on medical bills related to an injury to one of

the children, based on the court’s conclusion that her poor judgment had caused or
                                                                                               14

contributed to the injury.

       {¶ 41} The evidence established that Mrs. Bennett acquired a Great Dane, which

she named Thor, during the parties’ separation. Mr. Bennett also owned a Great Dane.

After observing the dogs together, Mr. Bennett expressed concern to Mrs. Bennett about

Thor’s aggressiveness, although he admitted that some aggressiveness among dogs was “not

uncommon” and that it abated after the dogs had been together for a little while. Mr.

Bennett testified, without objection, that he had heard about several other incidents

involving Thor that caused him concern, including an incident in which Thor cornered a

neighbor inside Mrs. Bennett’s house. Mr. Bennett discussed these concerns with Mrs.

Bennett, and she agreed to get rid of the dog.          Although Mrs. Bennett found a new

placement for Thor, she failed to follow through. A short time later, the dog bit one of the

Bennetts’ sons on the face.

       {¶ 42}    Because the son had lacerations on his face, the Bennetts met at the hospital

and agreed to use a plastic surgeon for his treatment, even if the surgeon were not in the

parties’ insurance network. The Bennetts did not discuss before the surgery who would be

responsible for paying any associated out-of-pocket expenses. Those expenses totaled over

$7,800.

       {¶ 43}    In its decision, the trial court stated that the “acquisition of this dog and the

failure to segregate it from the children after it became aggressive was an example of poor

judgment” by Mrs. Bennett. The court found the debt related to the surgery to be “the

separate non-marital debt of [Mrs. Bennett] because it was [her] unilateral decision to obtain

the dog” and her “error in judgment” that led to the injury.
                                                                                           15

{¶ 44}   A marital debt is any debt incurred during the marriage for the joint benefit of the

parties or for a valid marital purpose. Lucas v. Lucas, 7th Dist. Noble No. 11NO382,

2011-Ohio-6411, ¶ 33, citing Ketchum v. Ketchum, 7th Dist. Columbiana No. 2001 CO60,

2003-Ohio-2559, ¶ 47.      Debts incurred during the marriage are presumed to be marital

unless it can be proved that they are not. Id., citing Vergitz v. Vergitz, 7th Dist. Jefferson

No. 05JE52, 2007-Ohio-1395, ¶ 12; Kehoe v. Kehoe, 8th Dist. Cuyahoga No. 97357,

2012-Ohio-3357, ¶ 14. The party seeking to establish a debt is separate rather than marital

bears the burden of proof in the trial court. Lucas at ¶ 33; Hurte v. Hurte, 164 Ohio App.3d

446, 2005–Ohio–5967, 842 N.E.2d 1058, ¶ 21 (4th Dist.).            As discussed above, the

classification of property is reviewed to determine whether it is against the manifest weight

of the evidence and will not be reversed if supported by some competent and credible

evidence. Kovacs, 6th Dist. Sandusky No. S-09-039, 2011-Ohio-154, ¶ 13.

{¶ 45}   Although, especially in hindsight, Mrs. Bennett might have acted with more

caution or more decisively in removing Thor from her home, the trial court’s conclusion that

the debt incurred in treating the son’s injury was “non-marital” is unsubstantiated by the

record. Because the debt was incurred during the marriage, it was presumed to be marital

debt. Moreover, the medical treatment of their child was for their joint benefit and was for

a valid marital purpose.

{¶ 46}   Mr. Bennett’s assertion, based on his observations under unexplained

circumstances, that Thor had been “aggressive” with another dog was of questionable value

in predicting the dog’s future behavior toward children; Mr. Bennett admitted that aggressive

behavior was “not uncommon” between dogs and that the dogs settled down after some time
                                                                                               16

together. Mr. Bennett’s claims that Thor had acted aggressively toward other people were

non-specific as to time, place, and circumstances and were based on hearsay. Although the

magistrate’s decision stated that the dog was a pit bull, the testimony at the hearing

established that Thor was a Great Dane and that Mr. Bennett owned a dog of the same breed.

 Further, the circumstances surrounding the incident during which the Bennetts’ son was

bitten were not developed at the hearing.

{¶ 47}    The trial court’s treatment of the debt implied that Mrs. Bennett should have

anticipated and prevented their son’s injury and that her actions removed the costs associated

with the son’s treatment from being a marital debt. This conclusion is not supported by

competent and credible evidence. The debt for the son’s medical treatment was a marital

debt because it was “incurred during the marriage for the joint benefit of the parties or for a

valid marital purpose.” Lucas, 7th Dist. Noble No. 11NO382, 2011-Ohio-6411, ¶ 33, citing

Ketchum, 7th Dist. Columbiana No. 2001 CO60, 2003-Ohio-2559. Moreover, Mr. Bennett

fully participated in the decision to use a non-network plastic surgeon, a decision which

benefitted the child, not Mrs. Bennett. The alleged used of “poor judgment” by a spouse is

not a basis for concluding that debts incurred during the marriage are nonmarital debts. The

trial court should have divided the debt equitably, as it did the parties’ other assets and debts.

{¶ 48}    The cross-assignment of error is sustained.

V

{¶ 49} The judgment of the trial court will be affirmed in part and reversed in part. The

matter will be remanded for the trial court to address the equitable division of the medical

debt.
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                                    ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Douglas W. Geyer
Samantha L. Berkhofer
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Thomas J. Capper
