Liming v. DamosLiming v. Damos
Thomas R. McGuire, Guysville, Ohio, for Appellant.1
Harsha, J.
{¶1} Michael Liming appeals the trial court’s judgment in this divorce action, contending that the trial court erred by refusing to enforce the parties’ in-court agreement for shared parenting of their two minor children and instead awarding legal custody to Denday Damos. He argues that because the evidence showed that Damos simply “changed her mind,” the trial court erred in concluding that the parties failed to have a meeting of the minds. However, the magistrate concluded that shared parenting was not in the children’s best interest, and after Liming failed to specifically object to the magistrate’s decision on that basis and failed to provide the court with a full transcript of the proceedings, the trial court agreed. Here, the trial court was statutorily required to determine whether shared parenting was in the best interest of the children prior to adopting any plan providing for it. Thus, even if the parties entered into a “binding”
{¶2} Next, Liming contends that the trial court failed to conduct an independent review of the evidence concerning shared parenting because it did not address his argument that Damos “changed her mind.” However, the trial court’s decision expressly stated that it considered Damos’ testimony. And as we have stated, whether she changed her mind concerning the shard parenting agreement is irrelevant because the court found that shared parenting was not in the children’s best interest, a finding not properly before us in this appeal. Therefore, we reject Liming’s contention that the trial court erred in its review of the settlement agreement issue.
{¶3} Finally, Liming contends that the trial court erred in its division of the marital property and debt. He contends that the trial court failed to specify the dates it used in determining the meaning of “during the marriage” for purposes of valuing the marital property and failed to assign a monetary value to every asset and debt. He also argues that the “lopsided” division is inequitable. Our review of the record confirms that the trial court failed to clearly identify the dates it used in determining the duration of the marriage for purposes of property valuation. Because the trial court failed to do so, we are unable to determine whether the trial court properly valued the assets and made an equitable distribution of the property. Thus, we remand the case for the trial court to identify the dates used in its property valuation.
{¶4} Michael Liming and Denday Damos were married on August 8, 1993, and they have two children together. Liming filed for divorce in December 2001. After he filed a petition in the United States Bankruptcy Court for the Southern District of Ohio, an automatic stay of the proceedings occurred.
{¶5} The divorce proceedings ultimately came before a magistrate for a final hearing in April 2004, and after extensive negotiation, the parties informed the magistrate that they had reached an agreement. In the hearing room, while represented by counsel and under oath, the parties placed an agreement on the record. The parties agreed to a shared parenting arrangement, and the terms were outlined for the magistrate. They also made various stipulations concerning the distribution of marital property and debt. However, after further post-hearing negotiations, the parties were unable to submit a written joint shared parenting plan. Liming later filed a Motion to Enforce a Settlement Agreement and attached a Plan for Shared Parenting. He later filed an amended shared parenting plan with hand-written changes, changing the words “school residence parent” in Article (2), Paragraph (A)(2) to “primary residential parent.”
{¶6} A final hearing occurred in August 2004, at which time the magistrate also heard evidence concerning the enforceability of the purported settlement agreement. As part of these proceedings, the parties submitted Stipulations Regarding Divorce, Property, and Issues (“Stipulations”) with attached Exhibits A and B, which are documents Liming filed in the bankruptcy case.2 Following the two-day hearing, the magistrate issued a
{¶7} The trial court adopted the magistrate’s Proposed Decision, denied Liming’s Motion to Enforce Settlement Agreement, and entered judgment accordingly. The January 19, 2005 divorce decree incorporated the parties’ Stipulations, along with the attached exhibits. Liming appealed the court’s judgment, but we dismissed the appeal for a lack of a final appealable order because the trial court had expressly reserved jurisdiction to distribute the marital property and to establish child support obligation until after the bankruptcy proceedings concluded.
{¶8} In June 2007, the bankruptcy court granted Damos relief from the automatic stay so that the trial court could proceed in making a determination regarding the division of the marital property. After conducting a hearing in October 2007, the magistrate issued
II. Assignments of Error
{¶9} Liming presents three assignments of error for our review:
Assignment of Error No. 1:
The trial court erred in determining that the parties did not enter into a binding settlement agreement with respect to the allocation of parental rights and responsibilities.
Assignment of Error No. 2:
The trial court erred in failing to make an independent review of the evidence in light of objections filed by Plaintiff-Appellant with respect to the allocation of parental rights and responsibilities.
Assignment of Error No. 3:
The trial court erred in its distribution of marital assets and debts.
III. Settlement Agreement on Shared Parenting/Best Interest of the Children
{¶10} Generally, where the parties to an action enter into a voluntary settlement agreement in the presence of the court, the agreement is a binding contract and is enforceable. Spercel v. Sterling Indus., Inc. (1972), 31 Ohio St.2d 36, 285 N.E.2d 324. Where the agreement is reached by the parties in open court and preserved on the record or reduced to writing and filed, the court may, sua sponte, approve a journal entry that accurately reflects the terms of the agreement, adopting the agreement as its judgment. Aristech Chem. Corp. v. Carboline Co. (1993), 86 Ohio App.3d 251, 254-255, 620 N.E.2d 258. If the terms of a settlement agreement are in dispute, the issue of whether a trial judge should enforce the alleged settlement agreement is reviewed under an abuse of discretion standard. Lucas v. Reese, Athens App. No. 05CA2, 2005-Ohio-3846, ¶8, citing Moore v. Johnson (Dec. 11, 1997), Franklin App. Nos. 96APE11-1579, 96APE12-1638, and 96APE12-1703, in turn citing Rulli v. Fan Co., 79 Ohio St.3d 374, 376, 1997-Ohio-380, 683 N.E.2d 337. The term “abuse of discretion” connotes more than error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶11} However, when allocating parental rights and responsibilities for minor children under
{¶12} In his first assignment of error, Liming contends that the trial court erred in determining that the parties did not enter into a binding settlement agreement and in not ordering a shared parenting plan. He argues the evidence does not support the magistrate’s factual findings that there was no meeting of the minds or that the oral agreement lacked specifics as to “critical” aspects. He points to Damos’ testimony at the August 2004 hearing and argues that she simply “changed her mind.”
{¶13} Even if we assume that the parties entered into a voluntary settlement agreement and agreed to a shared parenting arrangement, the court was statutorily obligated to determine whether a shared parenting plan was in the best interest of the
{¶14} A party waives the right to challenge the trial court’s adoption of a magistrate’s decision unless that party objects to the magistrate’s decision in accordance with
{¶15} Here, the magistrate made numerous factual findings and conclusions of law and concluded that shared parenting was not in the best interest of the children. Specifically, the magistrate found:
Applying the law to the facts, the Magistrate believes the first issue to be addressed is Plaintiff’s request for shared parenting. The first factor a Court must consider in determining whether or not shared parenting is in the best interest of the children involved is the ability of the parents to cooperate and make decisions jointly, with respect to the children. It is clear from the time that this matter has been in Court that these parties are unable to communicate amicably. Plaintiff has taken every opportunity of contact with Defendant to harass her in one form or another. Much of this behavior has taken place in the presence of the children. Their attempts to arrive at a joint shared parenting plan, with the assistance of two attorneys, failed. Thus, to place them in a joint decision-making position is to place the boys at the center of a conflict every time a decision regarding their welfare must be made. This is clearly not in their best interests.
The second factor to be considered by the Court is the ability of each parent to encourage the sharing of love, affection, and contact between the children and the other parent. While Defendant can present a positive attitude toward Plaintiff’s role as a parent despite the harassment and financial difficulties she has faced during these proceedings, Plaintiff is unable to recognize any but the most superficial of Defendant’s parenting skills. He has attempted to portray her to the Court as an immoral person; to Dr. Apple as a child abuser; to his chosen evaluating psychologist and to a public children services agency as a sexual abuser. The Magistrate holds out little hope that he has the ability to encourage the sharing of love, affection, and contact between the children and Defendant.
Another factor to be considered by the Court is the recommendation of the Guardian ad Litem. Although the Guardian initially recommended initially recommended [sic] sole custody to Plaintiff and then shared parenting, by the time of the August 19th hearing, the Guardian was tempering this recommendation with a condition that Plaintiff first attend counseling. While he has seen a certified family therapist associated with his employer on several occasions, he has not had the kind of counseling that would address the problems associated with his difficulty interacting with others, including Defendant.
Given the foregoing, the Magistrate recommends that the Court deny Plaintiff’s request for shared parenting.
{¶16} In his objections to the magistrate’s decisions, Liming asserted that the decisions “fail to recommend that the settlement agreement be enforced and matters related and consequence thereto.” Liming did not specifically object to the magistrate’s factual findings and legal conclusion concerning why shared parenting was not in the best interest of the children. Thus, because he failed to object to these factual findings and legal conclusions, absent plain error, he has waived the right to assign them as error on appeal.
{¶17} Moreover, Liming failed to support his objections to the magistrate’s decisions with a transcript of all of the evidence submitted to the magistrate or with a
{¶18} The trial court expressly stated in its decision that Liming had failed to provide it with a full transcript of the magistrate’s hearing; Liming only filed a transcript of the testimonies of Damos, Tommy Adkins, and Shanah Hammock. The trial court went on to state that it had reviewed the magistrate’s proposed decision, the limited transcripts, Liming’s objections, and Damos’ response and that it agreed with the magistrate’s conclusion that shared parenting was not in the best interest of the children. The court stated that due to Liming’s treatment of Damos, a joint decision-making plan will not work and that it was in the children’s best interest to name Damos their sole legal custodian.
{¶19} Accordingly, we overrule Liming’s first assignment of error.
IV. Independent Review
{¶20} In his second assignment of error, Liming contends that the trial court failed to conduct an independent review of the evidence concerning shared parenting. Liming argues that the trial court failed to consider Damos’ testimony at the final hearing and failed to address his argument that Damos simply “changed her mind” concerning the settlement agreement. He claims that the court’s decision indicated that the court only considered the testimony of Tommy Adkins and Shanah Hammock.
{¶21} “In accordance with
{¶22} Contrary to Liming’s assertions, however, the court expressly stated in its decision that it considered the transcript of Damos’ testimony. And as we concluded above, the issue of whether the parties reached a settlement agreement concerning shared parenting is irrelevant because the magistrate found, and the court agreed, that
{¶23} Therefore, we overrule Liming’s second assignment of error.
V. Equitable Division of the Property
{¶24} In his third assignment of error, Liming contends that the trial court erred in its distribution of marital property. First, he argues that the court failed to comply with
{¶25} Several rules govern our analysis of Liming’s contentions relating to property distribution, including the familiar maxim that a trial court in any domestic relations action has broad discretion in fashioning an equitable division of marital property. Blakemore, supra, at 218; see, also, Bisker v. Bisker (1994), 69 Ohio St.3d 608, 609, 635 N.E.2d 308. Although the court has broad discretion, it is not unlimited. Thus, in making any division of marital property the court must comply with statutory mandates concerning the procedure and analysis it uses in making its distribution. A failure to do so amounts to per se abuse of discretion.
{¶26} The duration of the marriage is critical in distinguishing marital, separate, and post-separation assets and liabilities, and determining appropriate dates for valuation. Eddy v. Eddy, Washington App. No. 01CA20, 2002-Ohio-4345, at ¶23, citing Berish v. Berish (1982), 69 Ohio St.2d 318, 432 N.E.2d 183. Under
(a) Except as provided in division (A)(2)(b) of this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation;
(b) If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, ‘during the marriage’ means the period of time between those dates selected and specified by the court.
{¶27} Thus, the court may presume the date of the final hearing for divorce is the appropriate termination date of the marriage unless the court determines that the application of such a date would be inequitable. See Deacon v. Deacon, Cuyahoga App. No. 91609, 2009-Ohio-2491, ¶19, citing O‘Brien v. O‘Brien, Cuyahoga App. No. 89615, 2008-Ohio-1098, ¶40, in turn citing Berish at 321. In Berish, the Supreme Court of Ohio acknowledged that equity may occasionally require the trial court to choose a de facto termination of marriage date. “The choice of a date as of which assets available for equitable distribution should be identified and valued must be dictated largely by pragmatic considerations. * * * [T]he precise date upon which any marriage irretrievably
{¶28} However,
In any order for the division or disbursement of property or a distributive award made pursuant to this section, the court shall make written findings of fact that support the determination that the marital property had been equitably divided and shall specify the dates it used in determining the meaning of ‘during the marriage’. [emphasis added].
{¶29} A court must specify the dates it uses in determining the beginning and ending of the marriage in order to appropriately value each asset and to determine whether it is marital or separate in nature. See Sowald & Morganstern, Domestic Relations Law, Baldwins Ohio Practice (4 Ed.), Section 12:6. Failing to specify the precise dates that are used in valuing assets constitutes error on the part of the trial court. See Budd v. Budd, Summit App. No. 2485, 2009-Ohio-2674, ¶12, citing Weller v. Weller, Geauga App. Nos. 2006-G-2723, 2006-G-2724, 2007-Ohio-4964, at ¶29. “Given the broad discretion a trial court has in determining the duration of the marriage, the trial court must clearly identify the date upon which the marriage was terminated for the purpose of valuing marital assets.” Budd at ¶12. Moreover, “[a]n appellate court cannot undertake a review of whether marital assets have been accurately valued and divided until the specific valuation dates used by the trial court have been clearly identified.” Id.
{¶30} Furthermore, “the provisions of
{¶31} Here, the magistrate’s decision failed to specify the dates used in determining the duration of the marriage, and Liming objected to the trial court on that basis. In overruling his objections, the trial court found that the magistrate properly relied upon the valuations that Liming had submitted to the bankruptcy court. Specifically, the court found that the magistrate properly identified the March 14, 2003, Bankruptcy Order Confirming Chapter 13 Plan, which was attached to the parties’ August 20, 2005, Stipulations, as “the best evidence of Plaintiff’s evaluation of marital assets at the time the divorce was pending.” However, the trial court’s decision did not address the dates used in determining the duration of the marriage and did not specifically identify the date upon which the marriage was terminated for purposes of valuing the marital property.
{¶32} And because the trial court failed to identify specific dates, we are unable to determine whether the trial court accurately characterized property as marital or separate and whether it made an equitable distribution of the property. Accordingly, we remand the case for the trial court to identify the dates it used in determining the term of the marriage for purposes of its property valuation.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.