2021 Ohio 3094
Ohio Ct. App.2021Background
- Adam and Christina Clemens married in 2014; Adam filed for divorce July 24, 2019; GAL appointed and temporary orders named Wife residential parent.
- GAL report noted Husband’s positive marijuana screen (Mar 2020), history of OVIs, concerns about alcohol; recommended Wife be residential parent.
- Trial occurred Oct 15–16, 2020; court named Wife residential parent, ordered limited weekend visitation for Husband, set child support at $783.61/month, divided assets, found Husband in contempt for withdrawals from a joint account and fined $500.
- Property division: Wife kept proceeds from sale of marital residence ($10,727.11); Husband kept his truck and the amount he withdrew; court characterized several assets as Wife’s separate property.
- On appeal, Husband raised seven assignments of error (child support worksheet, parenting time, custody, characterization of specific assets, award of home proceeds, contempt purge opportunity, court’s silence on Husband’s contempt motion). Court affirmed in part, reversed/remanded in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Child support worksheet and arithmetic | Clemens: trial court failed to include/clarify statutorily required worksheet; support amount inconsistent with worksheet in record. | Wife: a worksheet exists in the record; no reversible error. | Reversed/remanded — worksheet in record produced a different amount ($804.23) than the decree ($783.61); remand ordered to comply with R.C. and Marker. |
| 2. Parenting time limitations | Clemens: parenting time is “severely limited” without explicit statutory-factor analysis under R.C. 3109.051. | Wife: record shows the court considered relevant factors (GAL report, alcohol/OVI history, parent-child conflict). | Overruled — no abuse of discretion; court considered factors and credibility. |
| 3. Award of custody to Wife | Clemens: court failed to properly weigh R.C. 3109.04 factors, and erred in relying on GAL without full investigation of new school/home. | Wife: court considered statutory factors, GAL testimony and other evidence showed children doing well post-move. | Overruled — award to Wife supported by competent, credible evidence; no abuse of discretion. |
| 4. Characterization of certain assets (tractor, Deferred Compensation, life policy) | Clemens: trial court erred in treating these as Wife’s separate property. | Wife: tractor purchased from pre-marital proceeds; much of retirement is pre-marital. | Partly sustained: tractor could be traced to pre-marital proceeds (separate); Deferred Compensation whole-account ruling reversed (some marital contributions exist); life policy ruling reversed (marital payments during marriage require apportionment). |
| 5. Award of marital residence proceeds | Clemens: unequal distribution; valuation of vehicle equities improper. | Wife: court equitably compensated differences in vehicle equities and other allocations; Husband previously said Wife could have the proceeds. | Overruled — trial court’s equitable division within discretion; no abuse. |
| 6. Contempt finding and purge opportunity | Clemens: contempt sanction imposed without an opportunity to purge. | Wife: Husband willfully violated temporary orders by withdrawing funds. | Sustained — contempt finding supported but sanction imposed as a $500 fine with no purge condition; remand for appropriate purge provision. |
| 7. Trial court’s silence on Husband’s contempt motion against Wife | Clemens: court failed to rule after evidence was presented. | Wife: (implicit) motion considered; failure to rule is presumed denial. | Overruled — appellate presumption treats silence as denial; no reversible error. |
Key Cases Cited
- Marker v. Grimm, 65 Ohio St.3d 139 (1992) (trial court must include completed child support worksheet in the record)
- DePalmo v. DePalmo, 78 Ohio St.3d 535 (1997) (court’s duty to act as child’s watchdog regarding support)
- Booth v. Booth, 44 Ohio St.3d 142 (1989) (standard of review for visitation is abuse of discretion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (definition of abuse of discretion)
- Kelm v. Kelm, 92 Ohio St.3d 223 (2001) (best-interest focus in visitation/custody decisions)
- Davis v. Flickinger, 77 Ohio St.3d 415 (1997) (abuse-of-discretion standard in initial custody)
- Miller v. Miller, 37 Ohio St.3d 71 (1988) (deference to trial court’s observation of witnesses in custody cases)
- Berish v. Berish, 69 Ohio St.2d 318 (1982) (broad discretion in equitable property division)
- Peck v. Peck, 96 Ohio App.3d 731 (1994) (traceability required to preserve separate property character)
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984) (trial court credibility findings entitled to deference)