{¶ 3} Mother moved for a temporary order of custody of the three children with Father having supervised visitation. The court granted Mother's motion.
{¶ 4} At the final divorce hearing, several witnesses testified as to Father's temper.
{¶ 5} Mother elicited testimony from witnesses to show that Father's violent outbursts led to Father physically striking her and the children. Mother's father testified that Father worked for him for two to three years, and during that time, Father displayed problems with anger. Mother's cousin testified that she witnessed Father yell at his two *3 oldest children and (1) smack one child on the back of the head and (2) pull and yank the other child to get them in the car to leave the cousin's home.
{¶ 6} Mother testified that she obtained a civil protection order against Father in 2006 when, in front of their oldest child, he slapped her twice on the back of the head; slapped her face; and told her he was going to shoot her. She said that when she attempted to call 911, Father unplugged one phone and grabbed another phone from her hand. She said that was the first time Father ever struck her. She testified to other incidents involving Father throwing objects, including a knife and a digital camera.
{¶ 7} Father testified and admitted slapping Mother on the "side of the head," but denied slapping her face and threatening to shoot her. He admitted that during the marriage he threw a knife at a door and punched a refrigerator.
{¶ 8} Jamie Vuksic, from children's services, testified that he received an alleged neglect complaint regarding the "slapping" incident that occurred in front of the oldest child. After investigating, he concluded that the oldest child faced no risk of suffering physical injuries but did face a moderate risk of emotional injury. Mr. Vuksic's ultimate finding was "substantiated neglect" because of physical contact between Father and Mother. He further concluded that there was no allegation or finding of physical abuse with regard to the child.
{¶ 9} Mary Barnas, a Ph.D in developmental psychology, testified. She oversees and coordinates the Washington County Supervised Visitation Center. She said that Father attended the weekly supervised visits with his children and did not cause any problems. She said that a couple of problems arose but those problems involved the *4 oldest child telling Father that (1) Mother and grandmother had left them in the home unattended; and (2) Mother told her that Father had hurt Mother. She further stated that one discipline incident involved the Father raising his voice when disciplining the children, but this incident did not raise any concern with the staff at the visitation center.
{¶ 10} After the hearing, the court, with regard to visitation, ruled that "[supervised visits at the visitation center shall end immediately. Based on the testimony of Dr. Barnas and Mr. Vuksic, [Father] is not now a threat nor ever has been, a danger to the parties' children." The court then entered a standard order of visitation.
{¶ 11} The court, in regards to other issues, ordered Mother to pay Father $15,715 within six months. Specifically, the court ruled: "In order to divide the marital assets as evenly as possible and considering the effect of social security and pension benefits earned during the marriage, as well as the disparity between incomes, the Court orders [Mother] to pay [Father $15,715] within six (6) months[.]"
{¶ 12} The court further awarded the Jeep Grand Cherokee to Father and awarded the Hyundai Elantra to Mother. Mother and Father did not owe anything on the Jeep but owed about $7,000 on the Hyundai. The court did not mention the $7,000 debt in its order.
{¶ 13} Finally, the court awarded the marital residence to Mother but ordered her to refinance it within six months and pay Father one-half of the equity in the home, i.e., $172,000 minus the mortgage amount at the time of refinance equals the equity. The court further ordered that if Mother fails to refinance the home within six months, then *5 "either party can elect to have the home sold at public auction, subject to the same distribution of net sale proceeds as set forth herein."
{¶ 14} Mother appeals the court's judgment and asserts the following two assignments of error: I. "THE TRIAL COURT ERRED IN NOT REQUIRING THAT THE FATHER'S VISITATION WITH THE MINOR CHILDREN OF THE MARRIAGE BE SUPERVISED." And, II. "THE TRIAL COURT ERRED IN FAILING TO MAKE AN EQUITABLE DIVISION OF PROPERTY PURSUANT TO STATUTE."
{¶ 16} The standard of reviewing the trial court's award of visitation rights to the non-residential parent is whether the trial court abused its discretion. Booth v. Booth (1989),
{¶ 17} R.C.
{¶ 18} Here, the testimony established that Father had a temper and, except for one occasion, threw objects at walls or at other objects, but not at people. However, the extent of Father's temper was disputed.
{¶ 19} On one occasion, Father struck Mother in front of the children. Father stated that he only slapped the side of Mother's head. Mother stated that Father slapped her in the back of the head and face and threatened to shoot her. It is undisputed that the oldest child witnessed this incident and that the children were scared.
{¶ 20} The trial court heard both versions regarding the extent of Father's temper and apparently chose to believe the Father's version. The 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. Trickey v. Trickey (1952),
{¶ 21} Mother maintains that the trial court erred and that it should have ordered supervised visitation. She cites Bodine v. Bodine (1988),
{¶ 22} In Bodine, the tenth appellate district court held that a trial court abuses its discretion by not imposing restrictions on visitation where clear and convincing evidence shows that a proposed visitation plan "will be harmful to the welfare of the children[.]" *7 Id. at paragraph two of the syllabus. The Bodine court stated that the father's visitation with his children should be supervised. The evidence showed that the father sought counseling to control his violent temper; his physical violence was occasionally directed at his wife during the course of the marriage; and the children expressed fears of their father even though they were the unintended victims.
{¶ 23} We distinguish Bodine. In Bodine, there was a long history of occasional physical violence directed toward the mother. Here, by the Mother's own admission, there was only one incident of physical violence directed toward the Mother, and it occurred near the end of the marriage.
{¶ 24} Therefore, we find that the trial court's decision was not unreasonable, arbitrary or unconscionable. Consequently, we find that the trial court did not abuse its discretion when it allowed Father to have unsupervised visitation with his children.
{¶ 25} Accordingly, we overrule Mother's first assignment of error.
{¶ 27} In a divorce proceeding, the trial court must identify the property and debt as marital or separate and divide the property and debt equitably between the spouses. R.C.
{¶ 28} The trial court has broad discretion in crafting its equitable division. R.C.
{¶ 30} ?`Distributive award' means any payment or payments, in real or personal property, that are payable in a lump sum or over time, in fixed amounts, that are made from separate property or income, and that are not made from marital property and do not constitute payments of spousal support, as defined in section
{¶ 31} Here, we find that the court's award is a "distributive award." The $15,715 award is a lump sum payment to be paid from Mother's separate property or income. Therefore, the trial court had to make a finding that "a division of the martial property in kind or in money would be impractical or burdensome" as required by R.C.
{¶ 32} Therefore, we find that the trial court abused its discretion when it made the $15,715 award without following all the requirements of R.C.
{¶ 34} One of the nine factors that the trial court is required to consider when it divides the marital property is "[t]he assets and liabilities of the spouses[.]" R.C.
{¶ 35} Therefore, we find that the trial court abused its discretion when it distributed the two vehicles without considering all the factors in R.C.
{¶ 37} R.C.
{¶ 38} Here, the court gave the Mother six months to refinance the home and pay Father his one-half of the equity. The court further provided that, if the Mother failed to refinance, then either party could "elect to have the home sold at public auction, subject to the same distribution of net sale proceeds as set forth herein." Under R.C.
{¶ 39} Therefore, we find that the trial court abused its discretion when it issued its order regarding the marital residence without making adequate factual findings with regard to all the factors set forth in R.C.
JUDGMENT AFFIRMED, IN PART, REVERSED, IN PART, AND CAUSEREMANDED. *12
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J.: Concurs in Judgment and Opinion as to Assignment of Error II;
Dissents as to Assignment of Error I. Abele, J.: Concurs in Judgment and Opinion.
Notes
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