Day v. DayDay v. Day
- Reporters:
- Before:
- Wise, Boggins, Gwin
OPINION
{¶ 1} Appellant Lisa L. Day appeals from her divorce in the Ashland County Court of Common Pleas, Domestic Relations Division. Appellee Billy G. Day is appellant‘s former spouse. The relevant facts leading to this appeal are as follows.
{¶ 2} The parties were married on September 24, 1994. Two children were born of the marriage. On November 13, 2002, appellant filеd a complaint for divorce. The matter proceeded to a two-day trial on the primary issues of allocation of parental rights and the division of marital property. The court simultaneously heard appellee‘s motion for contempt regarding the allowance of visitation under the temporary orders.
{¶ 3} The magistrate issued his decision recommending divorce on June 7, 2004, which, inter alia, granted custody of the parties’ twо children to appellant. Appellant thereafter filed a six-part objection to the decision of the magistrate, which the trial court overruled in toto via a judgment entry on September 16, 2004.
{¶ 4} On October 15, 2004, appellant filed a notice of appeal. She herein raises the following four Assignments of Error:
{¶ 5} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY FAILING TO DIVIDE THE PARTIES’ ASSETS IN AN EQUITABLE FASHION.
{¶ 6} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY PLACING A RESTRICTION ON HER SMOKING IN THE PRESENCE OF THE MINOR CHILDREN AND/OR EXPOSING THE CHILDREN TO SECOND HAND SMOKE.
{¶ 7} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY ORDERING APPELLANT TO PAY APPELLEE‘S ATTORNEY FEES ASSOCIATED WITH HIS CONTEMPT MOTION FILED HEREIN AND HEARD AT THE SAME TIME AS THE DIVORCE ACTION.
{¶ 8} “IV. THE JUDGMENT ORDER OF THE COURT AS IT PERTAINS TO PROPERTY DIVISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
I., IV.
{¶ 9} In her First and Fourth Assignments of Error, appellant argues the trial court‘s division of property was inequitable and against the manifest weight of the evidence. We agree.
{¶ 10} An appellate court generally reviews the overall appropriateness of the trial court‘s property division in divorce proceedings under an abuse of discretion standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. In order to find an abuse of discretion, we must determine the trial court‘s decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶ 11}
{¶ 12} “In making a division of marital property and in determining whether to make and the amount of any distributive award under this section, the court shall consider all of the following factors:
{¶ 13} “(1) The duration of the marriage;
{¶ 14} “(2) The assets and liabilities of the spouses;
{¶ 15} “(3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage;
{¶ 16} “(4) The liquidity of the property to be distributed;
{¶ 17} “(5) The economic desirability of retaining intact an asset or an interest in an asset;
{¶ 18} “(6) The tax cоnsequences of the property division upon the respective awards to be made to each spouse;
{¶ 19} “(7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property;
{¶ 20} “(8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses;
{¶ 21} “(9) Any other factor that the court expressly finds to be relevant and equitable.”
{¶ 22} In additiоn to a lengthy allocation of personal property, such as jewelry and furniture, which we will not herein recite, the record in the case sub judice reveals the following significant marital property breakdown: Appellant-Wife was awarded her STRS ($14,268) and TIAA-CREF ($1,228) retirement accounts, the parties’ 2000 Dodge Neon ($11,132 less a loan balance of $9,607), and a collection of Longaberger baskets ($11,987); Appellee-Husband was awarded his Shiloh Industries 401(K) ($18,447) аnd Pension ($16,553), his B.B. King guitar ($1,100), a 1990 Chevrolet Lumina ($500 less a loan balance of $2,000), and responsibility for a $3,100 debt to Alvin Jewelers. In addition, and what appellant particularly challenges, the trial court allocated to appellаnt her Sallie Mae student loans totaling $52,200. The overall allocation resulted in a total net distribution of $38,726.26 to appellee and a negative balance of -$17,602.05 to appellant. The magistrate additionally directed a distributive award of $3,827.82 from appellee to appellant, and further ruled as follows:
{¶ 23} “The Magistrate FINDS and DETERMINES that an unequal division of marital property and debt in the amount of $52,200.49 (the full amount of the plaintiff‘s student loan debt) is just and equitable because the defendant has not received any real benefit from the investment in the plaintiff‘s education, nor the plaintiff‘s resulting increased earning capacity, even though the student loan debt was incurred during thе parties’ marriage. Since plaintiff has been the only real beneficiary of the increased earning capacity associated with her degree work (the earning capacity associated with that degrеe being an intangible marital asset that does not carry any assigned value in the above table), she should also bear the cost associated with the acquisition of the intangible asset and its considerable econоmic benefit. This unequal division is further equitable, in light of the Magistrate‘s determination not to grant the defendant an award of spousal support. Aside from assessing the entire balance of the outstanding student loans to plaintiff, the division of marital property and debt, after application of this distributive award, is otherwise equal.” Magistrate‘s Decision at 17-18.
{¶ 24}
{¶ 25} Accordingly, appellant‘s First and Fourth Assignments of Error are sustained.
II.
{¶ 26} In her Second Assignment of Error, appellant argues the trial court erred in placing restrictions on the children‘s exposure to cigarette smoke. We disagree.
{¶ 27} The challenged provision is as follows: “Lisa L. Day-Carter shall not smokе in the presence of the children, or otherwise expose them to second-hand smoke.” Magistrate‘s Decision at 3. Appellant herein seems to mount a constitutional challenge to the trial court‘s order banning appellant from exposing the children to cigarette smoke, but her brief fails to develop a cognizable legal theory in support. We note
{¶ 28} Decisions on child custody and visitation lie within the trial court‘s sound discretion. Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178; Trickey v. Trickey (1952), 158 Ohio St. 9, 106 N.E.2d 772. Upon review of the record, we are unpersuaded the trial court abused its discretion in crafting a provision to protect the parties’ сhildren from secondhand smoke. We state this holding with the understanding that the trial court will reasonably interpret this provision to avoid frivolous contempt proceedings for inadvertent exposure to public secondhand smoke.
{¶ 29} Accordingly, appellant‘s Second Assignment of Error is overruled.
III.
{¶ 30} In her Third Assignment of Error, appellant contends the trial court erred in awarding appellee attorney fees connected with his contempt motion. We disagree.
{¶ 31} An award of attorney fees lies within the sound discretion of the trial court. Rand v. Rand (1985), 18 Ohio St.3d 356, 359, 481 N.E.2d 609. In contempt actions in domestic relations cases, a trial court may award attorney fees in the absence of supporting evidence when the amount of work and time spent on such a case is apparent. Labriola v. Labriola (Nov. 5, 2001), Stark App. No. 2001CA00081, unreported, citing Wilder v. Wilder (Sept. 7, 1995), Franklin App. No. 94AAPE12-1810. In the case sub judice, although appellee was awarded scheduled parenting time, evidence was presented shоwing appellant repeatedly sought to prevent appellee from exercising his rights under the court‘s prior orders. Based on our review of the record and the procedural history of the matter sub judice, we find no error or abuse of discretion in the court‘s award of contempt-related attorney fees to appellee in the amount of $350.
{¶ 32} Appellant‘s Third Assignment of Error is therefore overruled.
{¶ 33} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Ashland County, Ohio, is affirmed in part and reversed in part.
Wise, J., Boggins, P.J., and Gwin, J., concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Ashland County, Ohio, is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
Costs to be split evenly be