Kong v. KongKong v. Kong
JUDGMENT: AFFIRMED
RELEASED: July 8, 2010
ATTORNEY FOR APPELLANT
Steven H. Slive
Slive & Slive Co., LPA
935 Leader Building
526 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Vincent A. Stafford
Anne F. Coan
Stafford & Stafford Co., LPA
The Stafford Building
2105 Ontario Street
Cleveland, OH 44115
N.B. This entry is an announcement of the court‘s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court‘s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court‘s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1).
{¶ 1} In this divorce action, appellant-father, Qingwei Kong, appeals from a domestic relations division order that denied his request for a shared parenting plan and made a downward deviation from the six-week summer visitation schedule set forth in the court‘s visitation guidelines. His four assignments of error collectively complain that the court had no evidence to support its decision to deny his request for shared parenting and extended summer visitation.
{¶ 2} At the time of their divorce, father and appellee-mother, Karla Ann Kong, were parents to an eight-year-old child. The parents stipulated to the division of marital assets, leaving issues relating to shared parenting for resolution by the court: father sought shared parenting; mother opposed it. A magistrate conducted a trial on those issues and made findings of fact that reflected poorly on the father‘s character and fitness as a parent. For example, the magistrate found that the father engaged in conduct constituting stalking. The father also refused to acknowledge the child‘s attention deficit disorder and dispense her medication. Other findings detailed the father‘s history of depression and false accusations that the mother had sexually abused the child. The magistrate concluded that it would be in the child‘s best interest for the mother to be declared the
{¶ 3} Both parties objected to the magistrate‘s decision. As relevant to the issues raised in this appeal, the father claimed that the magistrate erred by denying his request for shared parenting; erred by concluding that the child suffered from attention deficit disorder; and erred by admitting the wife‘s exhibits even though they had not been offered into evidence. The mother objected on grounds that the evidence did not support a finding that the father should have visitation every weekend during the school year and custody for six weeks during the summer.
{¶ 4} In a judgment entry of divorce, the court adopted the magistrate‘s recommendation that parental rights and responsibilities be allocated to the mother and named her the residential parent. The court modified the magistrate‘s findings on visitation: it granted the father weekend visitation from Friday evening to Sunday evening on the first and third weekends and Friday evenings on the second and fourth weekends.1 It also shortened the summer vacation period to three weeks.
{¶ 5} The father‘s first and third assignments of error are interrelated. He complains that the court abused its discretion by refusing to implement a shared parenting plan. As part of this argument, he maintains that there was no evidence to establish that the child suffered from attention deficit disorder.
{¶ 6} The allocation of parental rights and responsibilities are set forth in
{¶ 8} In his findings of fact, the magistrate characterized the relationship between the parties as “tumultuous.” The magistrate found that the father wrote “vile” messages on the walls of the residence (“trash, sluts, out of my sight” and “proud of being the mother of sluts” — apparently in reference to the mother‘s children from another relationship) and threw food at the wall of the family house. The magistrate found evidence that the father had been “stalking” the mother — he rigged a closed circuit video camera so that he could watch the mother on a television and sealed off the front door of the house by nailing boards across the door, supposedly to prevent intruders.
{¶ 9} These findings suggested that the father might have mental health issues. The father blamed his behavior on a bad temper, but said that he had recently learned to control his temper. He claimed that he did not suffer from any psychosis, but conceded that he had been diagnosed with
{¶ 10} In a related matter, the court found that the father refused to give the child prescribed medicine for her diagnosed attention deficit disorder. The father disputes whether the child actually suffered from attention deficit disorder, but he conceded that he had been aware that the child had seen a doctor for that diagnosis and that she had been prescribed medication for her condition. He unilaterally refused to give the child her medication, and likewise refused to speak with the doctor who prescribed it. Failing to offer any other medical opinion to rebut the diagnosis of attention deficit disorder, he claimed that he knew his daughter better than the child‘s doctor.
{¶ 11} The court did not abuse its discretion by adopting the magistrate‘s conclusion that shared parenting would not be in the best interest of the child because trial evidence raised valid concerns about the father‘s emotional stability. We recognize that much of the mother‘s evidence concerning the father‘s suitability for shared parenting related to events that occurred prior to the parties divorcing — some four years prior to the actual trial — and that the father‘s conduct at the time the parties separated, occuring as it did in the midst of an acrimonious separation, may not be indicative of his current, post-separation emotional state. But there was current evidence to support the magistrate‘s conclusions about the
{¶ 12} The court‘s Family and Conciliation Services issued a March 2006 report that raised a number of questions concerning the father‘s emotional well-being, indicating a “suggestion of depression.” Testing showed that the father scored like people who are “self-centered and selfish” and who maintain “a bitter, cynical outlook and often have a brooding, negative manner that can make those around them feel miserable as well.” The report concluded that “[c]areful clinical evaluation will be necessary to rule out deviant thoughts, feelings and experiences as well as to assess general coping and parenting skills.”
{¶ 13} As a result of this report, the father said he engaged in counseling and received a diagnosis of “clinical depression as a result of the divorce situation.” He saw three different mental health professionals, but only a handful of times each. A psychiatrist prescribed medication for the depression, and the father took it for three months before being told he was “cured” of his depression and ceasing all treatment.
{¶ 15} The father‘s apparent denial of his own medical issues carried over to the child, with the father refusing to give the child her medication. In fact, the father showed a calloused indifference to the child‘s needs, claiming that he knew his daughter better than her doctor, that he made a sound decision not to give the child her medication, and that he “can not help” it if the mother was unhappy with that decision.2
{¶ 17} We are sensitive to the father‘s desire to expose the child to her Chinese cultural heritage, but find insufficient evidence in the record of that desire to make it a compelling factor to justify reversing the court‘s decision. The father did not testify that the child currently participated in any cultural or heritage-based activities that would be curtailed as a result of an order denying shared parenting. And while the court‘s decision to make the mother the residential parent may have limited the father‘s time with the child, it did not deny him all access to the child, so he is not foreclosed from exposing the child to her cultural heritage.
II
{¶ 18} The father next complains that the court erred by making a downward deviation from its own visitation guidelines by modifying the magistrate‘s initial decision to grant only three weeks of summer vacation. He claims the court made no findings to justify the downward departure.
{¶ 19}
{¶ 20} The court‘s deviation from the standard visitation guidelines did not expressly mention any of the factors contained in
III
{¶ 22} While it is true that the magistrate did not formally admit the mother‘s exhibits into evidence, the magistrate heard enough testimony about the content of those exhibits that he could make factual conclusions. In that part of his decision describing the parties’ relationship as “tumultuous,” the magistrate noted that the mother‘s exhibits “consisted largely of photos and emails[.]” The photographs showed the “vile messages” the father wrote on the walls and the email messages contained similarly-worded content. The father conceded that he wrote the words depicted in the photograph and he conceded that he threw a bowl of food against the wall. He also acknowledged that he boarded the door.
{¶ 23} The only point of disagreement was over a number of email messages that contained language similar to that written on the walls of the house. The father conceded that the emails listed his email address, but stated that he could not remember sending any of them. But even if those emails were disregarded, the magistrate heard enough testimony from the father to substantiate the factual conclusions about the tumultuous relationship between the parties. Reliance, if any, on the emails was harmless beyond any doubt.
It is ordered that appellee recover of appellant her costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas — Domestic Relations Division 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.
MELODY J. STEWART, JUDGE
SEAN C. GALLAGHER, A.J., and
MARY J. BOYLE, J., CONCUR