DANIELLE ROWAN (fka KEMERY) v. LEE DARREN KEMERY
Case No. 10 CA 117
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 12, 2011
[Cite as Rowan v. Kemery, 2011-Ohio-2307.]
Hоn. Sheila G. Farmer, P. J., Hon. John W. Wise, J., Hon. Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Domestic Relations Division, Case No. 09 DR 1557; JUDGMENT: Affirmed
For Plaintiff-Appellee
VICKY M. CHRISTIANSEN
CHRISTIANSEN CO., LPA
172 Hudson Avenue
Newark, Ohio 43055
For Defendant-Appellant
DAVID B. STOKES
21 West Church Street
Suite 206
Newark, Ohio 43055
Wise, J.
{¶1} This is an appeal from the decision of the Licking County Court of Common Pleas, Domestic Relations Division, granting a divorce between Appellee Danielle Kemery nka Rowan and Appellant Lee Darren Kemery. The relevant facts leading to this appeal are as follows.
{¶2} Appellant and appellee were married in Licking County, Ohio, on March 25, 2006. One child, C.K., was born to the parties. On November 6, 2009, appellee filed a complaint for divorce. Appellant thereafter filed an answer and counterclaim. Furthermorе, on June 11, 2010, appellee filed a motion for contempt. Appellant also filed a motion for contempt on August 9, 2010. The matter proceeded to a bench trial on August 20, 2010 on the divorce issues as well as appellee‘s contempt motion only.
{¶3} On October 20, 2010, the trial court issued a judgment entry/decree of divorce, which, intеr alia, awarded custody of the parties’ child to appellee and ordered appellant to pay child support of $718.05 per month, when private health insurance is in effect, plus processing fees. No spousal support was awarded to either party. Appellant was awarded the marital residence on Isabelle Road in Newark, Ohio; he was also made responsible for all liens on the property. The court also divided the parties’ marital property and/or designated their respective separate property, as further analyzed infra.
{¶4} On November 3, 2010, appellant filed a notice of appeal. He herеin raises the following twelve Assignments of Error:
{¶5} “I. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY FAILING TO AWARD THE PARTIES’ DOGS TO EITHER PARTY, AND/OR NOT ORDERING EACH PARTY TO PAY 50% OF THE VETERINARIAN BILL.
{¶7} “III. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY AWARDING THE PORTABLE DISHWASHER TO APPELLEE AND NOT AWARDING THE CAMERA TO APPELLANT.
{¶8} “IV. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY AWARDING THE 2003 BUICK REGAL TO APPELLEE.
{¶9} “V. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY FINDING THAT THERE WERE IMPROVEMENTS AND MAJOR REPAIRS TO THE REAL PROPERTY *** [ON] ISABELLE ROAD, NEWARK, OHIO.
{¶10} “VI. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN DESIGNATING APPELLEE-MOTHER THE SOLE RESIDENTIAL PARENT OF THE PARTIES’ ONLY MINOR CHILD ***.
{¶11} “VII. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY FINDING THAT THE TERM OF THE MARRIAGE HEREIN WAS FROM MARCH 25, 2006 (DATE OF MARRIAGE) TO OCTOBER 20, 2010 (DATE OF FILING OF DIVORCE DECREE).
{¶12} “VIII. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN ITS AWARD OF $3,500.00 ATTORNEY FEES TO APPELLEE AND AGAINST APPELLANT.
{¶13} “IX. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY FAILING TO ACT ON APPELLANT‘S MOTION FOR CONTEMPT FILED AUGUST 9, 2010.
{¶15} “XI. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY NOT ORDERING APPELLEE TO REMAIN AT LEAST 500 FEET AWAY FROM APPELLANT DURING HIS VISITATION EXCHANGE AT NEWARK POLICE DEPARTMENT.
{¶16} “XII. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY AWARDING APPELLEE THE CHILDCARE CREDIT AND DEPENDENCY EXEMPTION FOR THE MINOR CHILD EACH YEAR BEGINNING WITH 2010.”
{¶17} We will herein address some of the assigned errors out of sequence or in combined fashion, in the interest of judicial economy.
II.
{¶18} In his Second Assignment of Error, appellant argues the trial court erred in calculating support for the parties’ child. We disagree.
{¶19} In Booth v. Booth (1989), 44 Ohio St.3d 142, 541 N.E.2d 1028, the Ohio Supreme Court determined that the abuse-of-discretion standard is the appropriate standard of review in matters concerning child support. In order to find an abuse of discretion, we must determine that 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, 219, 450 N.E.2d 1140. Furthermore, as an appellate court, we are not the trier of fact. Our role is to determine whether there is relevant, competent, and credible evidence upon which the factfinder could base his or her judgment.
{¶20} In the case sub judice, the trial court utilized annual gross incomes on the guideline worksheet as $30,269.00 for appellee and $55,525.00 for appellant. Appellant essentially contends that his income was overstated by the court; he directs us to his testimony that his 2009 gross income, which included some overtime, totaled $42,700.00. See Tr. at 17, 133. However, the trial court, in its discretion, elected to extrapolate appellant‘s 2010 income at $55,525.00 based on documentary evidence that he had grоssed $24,559.00 as of June 11, 2010 (approximately 23 weeks into the year). See Plaintiff‘s Exhibit 4. We have recognized that “[t]he definitions of income under
{¶21} Appellant‘s Second Assignment of Error is therefore overruled.
I.
{¶22} In his First Assignment of Error, appellant contends the trial court erred in failing to specifically award ownership of three dogs and failing to divide responsibility for a $1,563.31 veterinarian bill. We disagree.
{¶23} Pursuant to
{¶24} Some Ohio courts have treated pet dogs as personal assets of value to be part of marital property distribution. See Green v. Shall, Lucas App.No. L-03-1123, 2004-Ohio-1653. In the case sub judice, the three dogs, now residing with appellant, appear to be part of the “personal effects currently in possession” language of the decree. We are unable to conclude that this portion of the property division, including the court‘s implicit refusal to split the veterinarian bill, constituted an abuse of discretion. In the absence of a cross-appeal by appellee, if appellant does not want any of these animals, his proрer remedy is to find a humane owner to assume care for them upon completion of the appeal process.
{¶25} Appellant‘s First Assignment of Error is therefore overruled.
III., IV., V.
{¶26} In his Third, Fourth, and Fifth Assignments of Error, appellant contends the trial court erred in ruling on the division of various property, including the dishwasher, the camera, the 2003 Buick automobile, and the value of improvements/repairs to the marital residence. We disagree.
{¶28} Our appellate review herein is complicated by the fact that neither appellant nor the trial court prepared a mathematical accounting of the complete marital/separate property distribution in this matter. We note, for example, that even though appellee was awarded the 2003 Buick, appellant was awarded the 1995 Chevy Tahoe, the 1972 Oldsmobile, the customized 1987 Buick Regal, and several other motorized items, including a Kawasaki motorcycle. Clearly, this Court has expressed its reluctance to engage in piecemeal review of individual aspects of a property division taken out of the context of the entire award. See Harper v. Harper (Oct. 11, 1996), Fairfield App.No. 95 CA 56, citing Briganti v. Briganti (1984), 9 Ohio St.3d 220, 459 N.E.2d 896.
{¶29} Upon review, we are unpersuaded that the trial court abused its discretion in its distribution of property in the decree.
VI.
{¶31} In his Sixth Assignment of Error, apрellant argues that the trial court erred in designating appellee as the child‘s residential parent. We disagree.
{¶32} In Ohio, parental rights and responsibilities are to be allocated based upon the paramount consideration of the best interest of the child. See
{¶33} In the case sub judice, both sides presented a battery of witnesses to support their respective positions regarding residential parent status for C.K. Neither side sought to utilize expert testimony against the other to suggest psychological barriers tо proper parenting, and it would appear both parties care about the child and are greatly interested in her well-being. However, we frequently emphasize that in proceedings involving the custody and welfare of children, the power of the trial court to exercise discretion is peculiarly important. Thompson v. Thompson (1987), 31 Ohio App.3d 254, 258, 511 N.E.2d 412, citing Trickey v. Trickey (1952), 158 Ohio St. 9, 13, 106 N.E.2d 772. Upon review, we find no grounds to disturb the court‘s ruling concerning allocation of parental rights in this case.
{¶34} Appellant‘s Sixth Assignment of Error is overruled.
{¶35} In his Seventh Assignment of Error, appellant contends the trial court erred in finding the term of the marriage to be from March 25, 2006 (date of the wedding) to October 20, 2010 (date of the divorce decree). We disagree.
{¶36}
{¶37} Appellant herein urges that the proper termination date of the marriage should be the date he allegedly vacated the marital residence, namely November 5, 2009. The chief rationale of appellant‘s argument is that the earlier date would be more equitable and would likely lighten the marital portion of his retirement assets. However, upon review in light of the court‘s overall rulings, we find no basis, on an abuse of discretion standard, to disturb the court‘s determination of the duration of the marriage.
{¶38} Appellant‘s Seventh Assignment of Error is therefore overruled.
VIII.
{¶39} In his Eighth Assignment of Error, appellant contends the trial court erred in awarding appellee $3,500.00 in attorney fees. We disagree.
{¶41} In the present case, the trial court based the award of attorney fees on the existence of the contempt proceedings, the differences in the parties’ incomes, unpaid child support for several months during the pendency of the divorce, and appellant‘s “unreasonable behavior.” See Divorce Decree at 13.
{¶42} It is well-established that the trier of fact is in a far better position to observe the witnesses’ demeanor and weigh their credibility. See, e.g., Taralla v. Taralla, Tuscarawas App.No. 2005 AP 02 0018, 2005-Ohio-6767, ¶ 31, citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. Upon review, we are unpersuaded the trial court abused its discretion in awarding appellee $3,500.00 in attorney fees under the facts and circumstances of this case.
{¶43} Appellant‘s Eighth Assignment of Error is overruled.
IX.
{¶44} In his Ninth Assignment of Error, appellant contends the trial court erred in refusing to hear his contempt motion filed against appellee. We disagree.
{¶46} Appellant‘s contempt motion in this instance was served on appellee two days before the divorce trial and was never served on appellee‘s counsel. We are unable to find an error or abuse of discretion by the trial court under these circumstances.
{¶47} Appellant‘s Ninth Assignment of Error is overruled.
X.
{¶48} In his Tenth Assignment оf Error, appellant contends the trial court erred in ordering each party to pay his or her own credit card balances. We disagree.
{¶49} Although Ohio‘s divorce statutes do not generally articulate debt as an element of marital and separate property, the rules concerning marital assets are usually apрlied to marital and separate debt as well. See Vergitz v. Vergitz, Jefferson App.No. 05 JE 52, 2007-Ohio-1395, ¶ 12, citing Marrero v. Marrero, Lorain App.No. 02CA008057, 2002-Ohio-4862, ¶ 43.
{¶50} In the case sub judice, the trial court, upon hearing the evidence, was not satisfied that either party had sufficiently demonstrated which portions of the various credit card obligations were pre-marital versus marital debt. See Decree at 3. Accordingly, the court simply ordеred that “[p]laintiff and defendant shall pay their own
{¶51} Appellant‘s Tenth Assignment of Error is therefore overruled.
XI.
{¶52} In his Eleventh Assignment of Error, appellant challenges the trial court‘s order of a 500-feet distance requirement between the parties for purposes of their child visitation exchange.
{¶53} The portion of the divorce decree at issue is the following order:
{¶54} “PICKUPS, DROP-OFFS AND RESTRICTIONS: All pickups and drop-offs for the [appellant‘s] parenting time shall be from the Newark Police Department. The [appellant] shall not be present within 500 feet of the [appellee] even with the [appellee‘s] permission.” Divorce Decree at 4.
{¶55} Appellant seems to argue that the aforesaid provision unfairly puts the onus on him to avoid violating the 500-feet barrier, but does not equally restrict appellee. While it is questionable that this was the intent of the provision, we are nonetheless not рersuaded to substitute our judgment for that of the trial court on this particular issue.
{¶56} Appellant‘s Eleventh Assignment of Error is therefore overruled.
XII.
{¶57} In his Twelfth Assignment of Error, appellant contends the trial court erred in granting the dependent tax exemption and child care credit to appellee, the designated custodial parent. We disаgree.
{¶58}
{¶60} “* * *”
{¶61} The language of
{¶63} Appellant‘s Twelfth Assignment of Error is therefore overruled.
{¶64} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Licking County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0413
DANIELLE ROWAN (fka KEMERY) v. LEE DARREN KEMERY
Case No. 10 CA 117
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Licking County, Ohio, is affirmed.
Costs to be assessed to appellant.
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JUDGES