[Cite as Hackathorne v. Hackathorne, 2018-Ohio-2622.]




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




DEANNE L. HACKATHORNE,

        PLAINTIFF-APPELLANT,                            CASE NO. 14-17-13

        v.

DANIEL J. HACKATHORNE,                                  OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Union County Common Pleas Court
                           Domestic Relations Division
                           Trial Court No. 16DR0179

                                    Judgment Affirmed

                             Date of Decision: July 2, 2018




APPEARANCES:

        Alison Boggs for Appellant

        Oliver Herthneck for Appellee
Case No. 14-17-13


SHAW, J.

         {¶1} Plaintiff-appellant, Deanne L. Hackathorne (“Deanne”), brings this

appeal from the November 8, 2017, judgment of the Union County Common Pleas

Court entering its final decree of divorce and shared parenting plan (“SPP”). On

appeal, Deanne argues, inter alia, that the trial court erred by electing to employ the

SPP custody schedule suggested by defendant-appellee, Daniel Hackathorne

(“Daniel”)—with some modifications—and that the trial court erred in ordering the

marital residence sold after the parties’ child finished high school.

                            Relevant Facts and Procedural History

         {¶2} Deanne and Daniel were married in 1990 and had one child together,

C.H., born in January of 2001. In 2002, Deanne had a serious fall that left her with

ongoing problems, leading to her being classified as disabled, and unable to perform

essential duties of gainful employment. As a result, she received social security

disability benefits.1

         {¶3} From several months after her injury until 2013, when she received new

treatment and medication, Deanne was afflicted with various issues that left her

incapacitated as often as 3-4 days per week. Since the change in her treatment in

2013, she is still classified as disabled but the number of days she is incapacitated

has been drastically reduced.


1
  Deanne certified to the Social Security Administration in the Fall of 2016 that she still could not perform
the essential duties of gainful employment.

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       {¶4} Prior to Deanne’s injuries, the parties shared in the household duties.

After her injury, until 2013, Daniel took over the bulk of household duties, including

raising C.H. Since Deanne’s relative recovery, she has resumed the ability to be

actively involved in C.H.’s life and in taking care of the residence.

       {¶5} While the divorce was pending, the parties engaged in a “nesting”

arrangement, wherein the parents rotated living in the marital residence with C.H.

every other week. The parties had the marital residence built together, designing it

specifically with high countertops to accommodate their height.            The high

countertops also assisted with Deanne’s issues, preventing her from having to look

down, which aggravated some of her health problems.

       {¶6} In addition to the marital residence, the parties owned an adjacent lot

that Daniel and C.H. used to play paintball and ride dirt bikes. The parties had a

number of other assets, including vehicles, retirement accounts, and various items

of personal property. However, the parties represented that they had reached an

agreement through mediation on all issues other than the parenting time

arrangement for C.H. and who should be awarded the marital residence.

       {¶7} The parties agreed and stipulated that a SPP should be instituted, they

just did not agree as to when parenting time should take place between the parties.

The final hearing proceeded on those defined issues of who would be awarded the

marital residence and the SPP schedule.


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       {¶8} At the final hearing, the GAL who had been appointed for C.H.

provided testimony that he felt a 50-50 split in parenting time was in C.H.’s best

interest. The GAL indicated that he spoke with C.H., the parties, and a number of

people related to the parties, and the GAL felt that both Daniel and Deanne were

good parents. The GAL indicated that C.H. would benefit by continuing equal

relationships with both parents, and that C.H. did not want to have to choose

between his parents. The GAL also indicated that C.H. wanted to stay in the marital

residence until graduation. At the time of the final hearing C.H. was a junior in high

school.

       {¶9} Each of the parties then provided testimony at the hearing. Deanne

testified regarding the health issues she had since her fall in 2002 and how she had

improved since 2013. She testified as to the things she was able to do around the

house now and she testified that she wanted the marital residence.

       {¶10} Deanne testified that Daniel traveled a lot for work, and that she had

concerns regarding Daniel’s drinking habits—concerns that the GAL did not share

after looking into the matter. Deanne requested a parenting schedule wherein every

other week Daniel would have C.H. from Thursday through Sunday, giving her the

majority of time with C.H.

       {¶11} Daniel provided testimony at the final hearing that he had a significant

role in building the marital residence because the builder went bankrupt before the


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home was completed and Daniel had to finish a lot of the work himself. Daniel

testified that he performed regular maintenance on the home and the adjacent lot,

and that the adjacent lot was used for camping, fishing, and for dirt bikes. He felt

that he was the party who could maximize the value of the home for a future sale

given that he had no physical limitations. He also got more use out of the adjacent

lot. He desired to be awarded the marital residence.

       {¶12} As to custody, Daniel indicated he wanted a 50-50 split in time. He

acknowledged that he had traveled for work significantly in the past as a software

developer but he indicated that he could travel on his own schedule and that as he

moved up in seniority he was traveling less.

       {¶13} At the conclusion of the hearing the magistrate had the parties reiterate

the stipulations that they had reached with regard to various property, including

401k plans, vehicles, and some personal property. Among other things, the parties

stipulated that Daniel would pay Deanne $4,500 per month in spousal support, that

Daniel would pay all school related extracurricular activities, and that child support

would be deviated to $0. The magistrate allowed the parties to file written closing

arguments on the disputed issues, which they did, then the matter was submitted to

the magistrate for decision.

       {¶14} On September 19, 2017, the magistrate filed its decision. As relevant

to this appeal, Deanne was given exclusive possession of the residence from the date


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of the order until July 31, 2018. On August 1, 2018, Daniel would have exclusive

possession of the marital residence until May 31, 2019, or until the property was

sold, whichever event occurred last. On or before June 1, 2019, the marital

residence would be put up for sale, coinciding with C.H.’s graduation from high

school. Proceeds from the sale—or losses—were to be split between the parties.

       {¶15} Shared parenting was also ordered pursuant to Daniel’s plan, with

some modifications made by the magistrate. The provisions of the SPP included

that Daniel would have custody of C.H. weekly Thursday at 5 p.m. until Monday at

8 a.m., and Deanne would have physical custody of C.H. from Monday at 8 a.m.

until Thursday at 5 p.m. This schedule would continue until August 1, 2018, at

which time the schedule flipped, with Daniel having C.H. from Monday at 8 am to

Thursday at 5 p.m., and Deanne having C.H. weekly from Thursday at 5 p.m., to

Monday at 8 a.m.

       {¶16} Deanne filed objections to the magistrate’s decision. She argued that

the magistrate failed to appropriately consider the factors of R.C. 3109.04(F)(1) and

erred in recommending a SPP that did not provide her with weekend parenting time

before August 1, 2018. She also argued that the magistrate erred in failing to

recommend that both parties refrain from consuming alcohol while exercising their

parenting time, that the magistrate erred in failing to retain jurisdiction over the sale

of the marital residence, that the magistrate erred in recommending that the marital


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residence be sold, and that the magistrate failed to recommend an allocation as to

two life insurance policies.

       {¶17} Daniel filed a response to the objections, arguing that they should all

be overruled.

       {¶18} On November 7, 2017, the trial court filed an entry addressing

Deanne’s objections to the magistrate’s decision. The trial court conducted an

independent review of the record and individually analyzed each of the objections,

finding them to be without merit.

       {¶19} On November 8, 2017, the trial court filed its Decree of Divorce and

SPP. The trial court’s entry largely reiterated the magistrate’s decision as its final

judgment.

       {¶20} It is from this judgment that Deanne appeals, asserting the following

assignments of error for our review.

                            Assignment of Error No. 1
       The magistrate erred when he disregarded the parenting schedule
       recommended by the Guardian Ad Litem and approved by
       appellee at the final hearing, and substituted his own judgment in
       creating a parenting schedule that precludes both parents from
       having weekend parenting time with the minor child while each is
       living in the marital residence. The schedule created by the
       magistrate and adopted by the judge is not in the best interest of
       the minor child.

                          Assignment of Error No. 2
       The magistrate erred when he tied the sale of the marital
       residence to the shared parenting plan. Further, the magistrate


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       and judge erred when the court did not expressly retain
       jurisdiction over the sale of the house.

                          Assignment of Error No. 3
       The magistrate erred when he ordered the marital residence be
       sold after the minor child emancipated instead of allocating the
       marital residence to appellant as part of the property division.

                           Assignment of Error No. 4
       The magistrate erred when he failed to order both parents to
       refrain from drinking when the minor child is in their respective
       custody, when concerns regarding drinking were raised at the
       final hearing and it was a term of the temporary orders.

                          Assignment of Error No. 5
       The magistrate erred when he failed to award appellant one half
       of the values of the prudential life insurance policy and the
       guardian whole life policy as part of the property division.

       {¶21} We elect to address some of the assignments of error together.

                             First Assignment of Error

       {¶22} In Deanne’s first assignment of error, she argues that the parenting

schedule entered by the trial court “defeated every objective of the parents.” She

argues that the trial court should have employed either the SPP schedule she

proposed, or the “plan” proposed by the GAL, which was to continue week-

on/week-off parenting.

                                Standard of Review

       {¶23} “ ‘Decisions concerning child custody matters rest within the sound

discretion of the trial court.’ ” Krill v. Krill, 3d Dist. Defiance No. 4-13-15, 2014-

Ohio-2577, ¶ 26, quoting Walker v. Walker, 3d Dist. Marion No. 9–12–15, 2013–

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Ohio–1496, ¶ 46, citing Wallace v. Willoughby, 3d Dist. Shelby No. 17–10–15,

2011–Ohio–3008, ¶ 22 and Miller v. Miller, 37 Ohio St.3d 71, 74 (1988).

“Accordingly, an abuse of discretion must be found in order to reverse the trial

court’s award of child custody.” Walker, citing Barto v. Barto, 3d Dist. Hancock

No. 5-08-14, 2008-Ohio-5538, ¶ 25 and Masters v. Masters, 69 Ohio St.3d 83, 85

(1994). An abuse of discretion suggests the trial court’s decision is unreasonable or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

                                      Analysis

       {¶24} In this case, the parties stipulated that they agreed “to shared parenting

with the parent having physical possession of the home being deemed residential

parent for school placement purposes.” Although the parties agreed that they

wanted shared parenting, they did not agree on a schedule.

       {¶25} When the final hearing first convened, Daniel thought the parties had

agreed on a schedule wherein they would split custody of C.H. each week; however,

Deanne’s understanding was that Daniel would only get custody of C.H. every other

week from Thursday night to Sunday, rather than every week as Daniel thought.

The parties thus could not come to an agreement, and left the matter up to the court

for determination.

       {¶26} The court heard testimony on the issue, including from the GAL, who

recommended a 50-50 split in custody. In his report, the GAL suggested a week-


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on/week-off schedule, similar to what the parties had been doing during the

temporary orders.

       {¶27} Deanne filed a proposed SPP requesting physical custody of C.H. from

Monday through the following Thursday, thus giving Daniel parenting time every

other weekend, slightly extended. Daniel filed a plan indicating that the person who

was awarded the marital residence would have custody of C.H. Monday to Thursday

at 5 p.m., then the other parent would have custody from Thursday at 5 p.m. to

Monday morning.

       {¶28} The magistrate found that after reviewing the SPP proposals, Deanne’s

was not in the best interest of C.H. as it did not give each parent equal time.

Similarly, the magistrate did not agree entirely with Daniel’s plan, and thus made

some modifications, but ultimately elected to adopt an amended version of Daniel’s

plan after analyzing all of the appropriate statutory factors.

       {¶29} Deanne objected to the magistrate’s decision, and the trial court

overruled the objection.     The trial court found that the magistrate’s decision

“adroitly honors” the child’s best interests “while simultaneously considering the

statutory standards.” (Doc. No. 83).

       {¶30} Deanne now argues that the trial court erred and should have adopted

either her plan, or the GAL’s proposed week-on/week-off schedule. Notably, the

GAL just repeatedly stated at the final hearing that he felt that a 50-50 split in


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parenting time was best as both parents got along well with C.H. and both were

good parents. Daniel’s plan, as modified by the magistrate and adopted by the trial

court, gave essentially a 50-50 split in parenting time. So while Deanne argues that

the trial court did not accept the GAL’s “plan,” the trial court actually did accept the

GAL’s “recommendation” of a 50-50 split. It was just employed differently.

       {¶31} We see nothing in the record arbitrary or capricious about the trial

court’s decision as the trial court attempted to provide equal time to each parent and

ensure that each parent was spending adequate time with C.H. on a weekly basis.

Under these circumstances, we cannot find that the trial court abused its discretion.

Therefore, Deanne’s first assignment of error is overruled.

                       Second and Third Assignments of Error

       {¶32} Deanne’s second and third assignments of error dispute the trial

court’s determination that the marital residence should be sold rather than awarding

it to her, and she argues that the trial court erred in setting up the process for the

residence to be sold. Specifically, Deanne contends that the order related to the sale

of the property was not specific enough and that Deanne should have been awarded

the marital residence, allowing her to buy Daniel out of his equity with an offset

from her share of Daniel’s 401(k).




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                                 Standard of Review

       {¶33} Trial courts in domestic relations cases have broad discretion when

determining the equitable settlement of property following a divorce. Warnecke v.

Warnecke, 3d Dist. Putnam No. 12-01-05, 2002-Ohio-1420. Thus a trial court’s

determination will not be reversed absent an abuse of that discretion.

                                      Analysis

       {¶34} In this case, both parties desired to be awarded the marital residence

and essentially desired the other party not to have the marital residence. The parties

were made aware of the fact that if they did not come to an agreement, the residence

could be ordered to be sold. See R.C. 3105.171(J)(2).

       {¶35} Given that C.H. was nearing the age of majority and close to finishing

high school (May of 2019), the trial court did not order the residence sold until after

C.H. graduated. Before that time, Deanne was permitted to remain in the residence

until July 31, 2018. On August 1, 2018 until May 31, 2019, Daniel would have

exclusive possession of the residence, or until the property sold, whichever event

occurred last.

       {¶36} The trial court specified that on or before June 1, 2019, the real estate

would be listed for sale. The trial court specified a realtor to be used if the parties

could not agree on one on their own, and a price to be listed at coinciding with an

appraisal. Upon sale of the property, the parties would equally divide the net


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proceeds after payment of all encumbrances, or share equally in any losses. As it

relates to Deanne’s second assignment of error, we fail to see how the trial court’s

ruling lacked specificity or failed to adequately address the matter. Therefore,

Deanne’s second assignment of error is overruled.

       {¶37} Further, we cannot find an abuse of discretion in finding that the

property should be sold rather than awarding it to Deanne. Both parties desired to

own the residence and they could not come to an agreement on it. Both parties were

given a period of time to live in the house alone prior to attempting to sell it. The

trial court determined that Daniel would be in the best position to readily perform

upkeep on the home and the adjacent property just prior to sale.

       {¶38} While there was some indication that the high countertops assisted

with Deanne’s condition, there was also testimony that Daniel enjoyed the home

and the adjacent lot, and that he attached some sentimental value to it for the work

he put in. As the parties could not come to an agreement on the home, we cannot

find that the trial court’s determination that it be sold amounted to an abuse of

discretion as it was well within the trial court’s authority. Therefore, Deanne’s third

assignment of error is overruled.




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                            Fourth Assignment of Error

       {¶39} In Deanne’s fourth assignment of error, she argues that the trial court

erred by failing to order that both parents refrain from drinking when C.H. was in

their custody after she raised concerns regarding Daniel’s drinking habits.

       {¶40} Deanne’s argument in this assignment of error is based on her own

testimony that she had observed Daniel’s drinking habits increase prior to the

separation. At the final hearing, she emphasized one incident in particular where

she had a receipt showing that Daniel had purchased two 22 ounce beers while he

was out to eat with coworkers following a business trip, though Daniel testified that

he did not drink the second beer as he had to leave when he got a call from C.H. to

pick him up and take him to a football game. Daniel testified that he had stopped

drinking altogether when C.H. was in his care.

       {¶41} The GAL investigated Daniel’s drinking habits and found no

indication that Daniel had a drinking problem. In fact, Deanne’s own sister told the

GAL that Daniel did not have a drinking problem. The magistrate found that there

was no indication that Daniel had an issue with alcohol and the trial court overruled

Deanne’s related objection to the magistrate’s decision.

       {¶42} Given the evidence in the record, we cannot find that the trial court

abused its discretion such that this issue needs to be reversed. Other than testimony

indicating that Daniel would occasionally have a beer or drink with dinner after


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work, there is no testimony indicating he had any kind of problem that required

restrictions. Therefore, Deanne’s fourth assignment of error is overruled.

                                    Fifth Assignment of Error

         {¶43} In Deanne’s fifth assignment of error she argues that the trial court

erred by failing to award her one half of the value of a “Prudential” life insurance

policy and one half of a “Guardian” whole life insurance policy as part of the

property division. Specifically, she contends that the trial court failed to make any

mention of the life insurance accounts and how they should be split, even after she

objected to the magistrate’s failure to distribute the policies.

         {¶44} Notably, the parties represented to the magistrate at the final hearing

that they had resolved all issues other than the parenting schedule and who should

be awarded the marital residence. No testimony was given regarding any life

insurance policies, who they were owned by, whether they were marital property or

not, and what value they had, if any.

         {¶45} The only time that the life insurance policies were brought up at all

was when the magistrate noted after the final hearing that there were seemingly two

life insurance policies and the magistrate inquired as to whether there was any cash

value.

         THE COURT:2 * * * There was no discussion with respect to life
         insurance. I noted in my review that there are two policies. Were

2
  The court reporter refers to the magistrate as “the court” in the transcript of the proceedings. Although
inaccurate, we have left the reporter’s styling in its original form.

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       there any cash values associated with those policies? My notes
       show Guardian and Prudential.

       [DANIEL’S ATTORNEY]: Your Honor, I understand there’s
       two life insurance policies. One is a Fidelity and one is a
       Guardian. The Fidelity account was created by Dan’s parents for
       Dan when Dan was 20 and in college. So, we would say that would
       be his separate property. The other one has some cash value,
       marital property, so we would pose that – um, sometimes these
       things have clauses to either take one or the other person’s name
       off of the account. So, if that’s possible, Dan would maintain the
       account, cash out the cash value, pay her half of it and maintain
       that account. And, if not, then close it and split whatever the cash
       value is.

       THE COURT: Well, however – whatever you folks decide is fine
       with me. I just want to make sure it doesn’t fall through the
       cracks.

       [DEANNE’S ATTORNEY]: Right. Your Honor, actually, in
       ours, there were four. Three Guardian’s and one Prudential. The
       two Guardians have no cash value. One of them is, apparently,
       for [C.H.].

       [DANIEL’S ATTORNEY]: Yes.

       [DEANNE’S ATTORNEY]: And then, um, there’s one that does
       have some value and so we would split that.

       [DANIEL’S ATTORNEY]: Is that the Guardian?

       THE COURT: Well, as long as you address that in your
       stipulation. And then the personal injury settlement balance
       that’s left is going to be considered separate property of [Deanne].
       Is that the stipulation?

       [DEANNE’S ATTORNEY]: Yes, Your Honor.

(Tr. at 162-164).

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       {¶46} Based on the dialogue at the final hearing, there did not seem to be any

dispute as to what should occur with any existing life insurance policies that were

marital. Deanne now argues that the magistrate erred by not acquiring exact

amounts of the cash values of any accounts to be split to ensure that a division was

equitable. However, the parties appeared to be in agreement to divide any cash

value of marital life insurance policies 50-50, which would certainly be equitable.

       {¶47} Deanne objected to the magistrate’s purported failure to include

anything in its decision regarding life insurance policies, stating that the policies

should have been dealt with. The trial court overruled the objection, stating as

follows.

       The Court FINDS that the parties presented no evidence
       regarding either of these policies.         Further, the parties
       represented to the Court that all matters save for allocation of the
       marital residence, related residential expenses and the Shared
       Parenting Plan were resolved by agreement. Absent evidence, the
       Court cannot enter findings. * * * [Deanne’s] fifth objection is
       without merit.

(Doc. No. 83).

       {¶48} On appeal, Deanne now requests that we reverse the trial court’s

decision and remand this matter back to the trial court for an evidentiary hearing on

the purported life insurance policies and the values of the policies.

       {¶49} As the trial court noted, we have no actual evidence before us

regarding any purported life insurance policies. We have only statements that there

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may or may not have been one policy with some cash value that needed to be equally

divided—and that is if it was not the same policy that was referenced as being

C.H.’s.

         {¶50} Deanne seems to assert that there are two policies that need to be

divided, a Prudential policy and a Guardian Policy. There is no evidence to support

that.3

         {¶51} As to the listed Guardian policy, the parties seemed to be in agreement

to divide it equally. The magistrate ordered the parties to address it in their

stipulations if there was any value. We have no indication from actual evidence

presented at the final hearing that there was something of value that was not

addressed. For all of these reasons Deanne’s argument is not well-taken, and her

fifth assignment of error is overruled.




3
  In Deanne’s deposition, she had an attached exhibit that listed four purported life insurance policies, three
from Guardian and one from Prudential. Two of the Guardian policies were listed as “no cash value,” one
Guardian policy was listed as $2,491 cash value, and the one Prudential policy was listed as a cash value of
$12,015. Beside the Prudential policy the name “Dan” was handwritten in, whereas the other policies all
have “Both” handwritten in, as though the Prudential account was Daniel’s separate property, similar to his
attorney’s statements at the final hearing. There simply does not appear to be any support for any failure to
divide a Prudential policy. Regardless, none of this information was introduced at trial. Further, even the
exhibit to Deanne’s deposition was not testified to, thus we have no real context for what it says regarding
the purported policies and we have no idea whether the figures were accurate.

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                                   Conclusion

       {¶52} For the foregoing reasons Deanne’s assignments of error are overruled

and the judgment of the Union County Common Pleas Court is affirmed.

                                                              Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

/jlr




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