Yenni v. YenniYenni v. Yenni
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 18, 2022
Appearances:
Joyce E. Barrett and James P. Reddy, Jr., for appellant.
Skirbunt & Skirbunt, L.L.C., James R. Skirbunt, and Amanda M. Pipik-Leip, for appellee.
MARY EILEEN KILBANE, J.:
{1} Appellant Gregory A. Yenni (“Husband“) appeals from the domestic court‘s order granting a divorce and legal custody of the couple‘s minor child, V.Y., to appellee Aurelija Yenni (“Wife“). For the following reasons, we affirm.
{2} Husband and Wife married on December 4, 2008. The couple had a child, V.Y., on May 11, 2010. On October 10, 2018, Wife filed a complaint for divorce. On that same date, the court issued a mutual restraining order to Husband and Wife that enjoined the parties from participation in several delineated acts including, but not limited to, (1) interference with the other spouse‘s parenting time and (2) withdrawal of funds from bank and investment accounts. Husband filed an answer, pro se, on November 6, 2018. On January 11, 2019, Wife filed a financial disclosure statement with an affidavit of property, income, and expenses.
{3} On January 30, 2019, the trial court ordered the parties to attend mediation. The court subsequently granted Wife‘s motion to terminate mediation services.
{4} On March 13, 2019, pursuant to Wife‘s motion, the court appointed a guardian ad litem (“GAL“) and counsel on behalf of V.Y. (“V.Y.‘s GAL and counsel“). On April 10, 2019, the trial court docketed the parties’ agreed interim parenting schedule. On April 11, 2019, the court referred the parties to the court‘s Family Evaluation Services (“FES“) for a brief focused evaluation that included facilitation of a resolution and determination of whether one or both parties needed psychological testing. On August 28, 2019, Wife secured Husband‘s deposition testimony.
{5} On December 9, 2019, Husband, pro se, filed a motion for temporary child support. Wife opposed this motion, and the court subsequently denied
{6} On January 14, 2020, Wife filed her trial witness list that identified Husband, Wife, V.Y.‘s GAL and counsel, and the FES evaluator. Wife filed another financial disclosure statement on January 15, 2020. On January 17, 2020, Husband, pro se, filed a financial disclosure statement.
{7} On January 28, 2020, and January 29, 2020, the magistrate began a contested trial. On the second day of trial, Wife filed a motion to terminate Husband‘s parenting time. On January 31, 2020, the court granted Wife‘s motion to terminate parenting time thereby limiting Husband to supervised parenting time. While a new trial date was set soon after the January 2020 trial dates, the parties did not return for trial until a year later.
{8} In the meantime, on February 7, 2020, Husband filed a motion, pro se, to set aside the order for supervised visitation; the motion was denied. On March 13, 2020, April 27, 2020, and May 1, 2020, Wife filed motions to show cause stemming from Husband‘s alleged noncompliance with the court‘s initial mutual restraining order.
{9} On July 8, 2020, counsel filed a notice of appearance on Husband‘s behalf. On August 7, 2020, the court docketed the parties’ signed stipulations that stated the parties’ agreed division of real property, personal property, and credit card debt. On November 6, 2020, Husband filed a motion to strike the August 7,
{10} Trial resumed on January 13, 2021. On February 16, 2021, both parties, through counsel, and V.Y.‘s GAL and counsel filed written closing arguments. On April 16, 2021, the magistrate rendered a decision that included findings of fact and conclusions of law. On April 30, 2021, Husband‘s counsel filed objections to the magistrate‘s decision. On the same date, Husband filed two affidavits, pro se. On May 3, 2021, Husband‘s counsel filed a motion to withdraw as counsel pursuant to Husband filing two pro se motions without his counsel‘s knowledge or consent. On May 7, 2021, the trial court granted the motion to withdraw as counsel.
{11} On May 14, 2021, Wife filed a brief in opposition to Husband‘s objections to the magistrate‘s decision. The trial court overruled Husband‘s objections on July 20, 2021.
{12} On July 30, 2021, Husband filed, pro se, a motion for new trial. On the same date, Husband filed, pro se, a rejection of the court‘s divorce judgment entry. On September 2, 2021, the trial court denied Husband‘s motion for a new trial. On September 3, 2021, Husband filed, pro se, a request for findings of fact and conclusions of law stemming from the court‘s September 2, 2021 order that denied his new trial motion. On September 20, 2021, the trial court denied Husband‘s request for findings of fact and overruled Husband‘s rejection of the divorce judgment entry.
{14} On November 29, 2021, counsel entered an appearance on Husband‘s behalf and filed a timely notice of appeal that presented these ten assignments of error:
First Assignment of Error: The trial court erred and abused its discretion in finding appellee proved and corroborated grounds for divorce.
Second Assignment of Error: The trial court erred and abused its discretion in imputing income to appellant for purposes of calculating the child support obligation.
Third Assignment of Error: The trial court erred and abused its discretion in making the child support order retroactive to February 1, 2020.
Fourth Assignment of Error: The trial court erred and abused its discretion in not conducting a hearing on the alleged stipulations of the parties.
Fifth Assignment of Error: The trial court erred and abused its discretion in designating appellee as residential parent and legal custodian for the parties’ minor child and awarding appellant minimal and supervised visitation.
Sixth Assignment of Error: The trial court erred and abused its discretion in its valuation dates for the parties’ accounts.
Seventh Assignment of Error: The trial court erred and abused its discretion in the division of the parties’ retirement assets.
Eighth Assignment of Error: The trial court erred and abused its discretion in not making an award of spousal support to appellant.
Ninth Assignment of Error: The trial court erred and abused its discretion in determining which party may claim the minor child for tax purposes.
Legal Analysis
First Assignment of Error: The trial court erred and abused its discretion in finding appellee proved and corroborated grounds for divorce
{15} In his first assignment of error, Husband argues that the trial court abused its discretion when it found Wife proved and corroborated grounds for divorce. Specifically, Husband argues that Wife‘s complaint cited only incompatibility as grounds for her divorce and Husband denied this allegation in his answer. To pursue additional grounds for divorce under
{16} In Ohio, under notice pleading, a plaintiff need not prove his case at the pleading stage. DSS Servs., L.L.C. v. Eitel‘s Towing, L.L.C., 10th Dist. Franklin No. 18AP-567, 2019-Ohio-3158, 10. A plaintiff is simply required under
{17} Here, Wife‘s divorce complaint stated that “[Husband] has acted, or has failed to act, in a manner which entitles [Wife] to a divorce under the provisions of
{18} Further,
(M) Testimony: Judgment for divorce, annulment, or legal separation shall not be granted upon the testimony or admission of a party not supported by other credible evidence. No admission shall be received that the court has reason to believe was obtained by fraud, connivance, coercion, or other improper means. The parties, notwithstanding their marital relations, shall be competent to testify in the proceeding to the same extent as other witnesses.
A trial court may grant a divorce after the party‘s evidence of grounds for divorce is corroborated by another witness or other independent evidence. Condit v. Condit, 190 Ohio App.3d 634, 2010-Ohio-5202, 943 N.E.2d 1041, ¶ 16 (1st Dist.), citing
[c]orroborating evidence must pertain to material elements essential to the proof of the ground for divorce set out in the complaint, but it is not required for each and every material fact. The evidence “must merely substantiate the testimony of a party, but need not support it in every detail.” It may be oral, documentary, or both, and a court may consider the evidence and admissions of the other party and find that they are corroborative of the first party‘s testimony.
{19} A court of appeals reviews a trial court‘s decision that there were proper grounds for divorce under an abuse of discretion standard. O‘Neal v. O‘Neal, 8th Dist. Cuyahoga No. 110114, 2022-Ohio-372, ¶ 24. An abuse of discretion occurs when a trial court‘s decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. Cleveland v. Greear, 8th Dist. Cuyahoga No. 108190, 2020-Ohio-29, ¶ 19, citing State v. Taylor, 8th Dist. Cuyahoga No. 98107, 2012-Ohio-5421, ¶ 22.
{20} The trial court in the instant case granted Wife a divorce on three grounds: the parties lived separate and apart for greater than one-year, gross negligence, and extreme cruelty. Wife testified that she moved from the marital residence into an apartment on April 26, 2019. Additionally, the GAL testified that she visited Wife and V.Y. on July 1, 2019, in their apartment. Husband did not introduce any evidence to demonstrate the parties had not lived separate and apart for greater than one year nor did he object to the testimony proffered by Wife and the GAL. The magistrate‘s decision was docketed on April 16, 2021, and the trial
{21} As to gross negligence, this court has found that
[t]he term “gross neglect of duty” is not subject to precise definition and its basis as a ground for divorce under
R.C. 3105.01 is determined by the circumstances of each case. [citations omitted] The trial court has a large measure of discretion in determining the sufficiency of the evidence in granting a divorce on the ground of gross neglect of duty. Weinstein v. Weinstein [90 Ohio L. Abs. 199, 185 N.E.2d 56 (8th Dist.1962); Buess v. Buess, 89 Ohio App. 37, 731 N.E.2d 646 (3d Dist.1950).].
Rice v. Rice, 8th Dist. Cuyahoga No. 78682, 2001 Ohio App. LEXIS 4983, 15 (Nov. 8, 2001), quoting Patterson v. Patterson, 8th Dist. Cuyahoga No. 43707, 1982 Ohio App. LEXIS 11728, 14 (July 22, 1982). Additionally, gross neglect of duty has been described as the failure of one party to perform a marital duty “attended by circumstances of indignity or aggravation.” Williams v. Williams, 8th Dist. Cuyahoga No. 62267, 1993 Ohio App. LEXIS 3361, 38-39 (July 1, 1993), quoting Kennedy v. Kennedy, 111 Ohio App. 432, 433, 165 N.E.2d 454 (12th Dist.1959). Gross neglect of duty is determined on a case-by-case basis. Hunt v. Hunt, 63 Ohio App.3d 178, 578 N.E.2d 498 (2d Dist.1989), citing Glimcher v. Glimcher, 29 Ohio App.2d 55, 278 N.E.2d 37 (10th Dist.1971), paragraph one of the syllabus.
{22} Similarly, extreme cruelty is not clearly defined, and this court has relied on the following definition:
The term “extreme cruelty” as used in
R.C. 3105.01 is not limited in scope to acts of physical violence or the reasonable apprehensionthereof, but is sufficiently broad to encompass acts and conduct the effect of which is calculated to permanently destroy the peace of mind and happiness of one of the parties to the marriage and thereby render the marital relationship intolerable. [Buess at 45.]
Huelsman v. Huelsman, 8th Dist. Cuyahoga No. 54684, 1988 Ohio App. LEXIS 4531, 21-22 (Nov. 17, 1988). “The determination of what facts constitute extreme cruelty in a given case must be left to the broad, but sound, discretion of the trial court and whether sufficient evidence has been presented to establish extreme cruelty will depend upon all the circumstances of the particular case. 48 Ohio Jurisprudence 3d (1983) 272, Family Law, Section 1126.” Huelsman at 22, quoting Verplatse v. Verplatse, 17 Ohio App.3d 99, 100, 477 N.E.2d 648 (3d Dist.1984).
{23} A review of the record shows that Husband‘s behavior rose to the level of gross neglect of duty and extreme cruelty.
{24} Thus, the trial court did not abuse its discretion when it determined that the evidence demonstrated the parties lived separate and apart for more than one year and Husband‘s behavior amounted to extreme cruelty and gross neglect of duty. Husband‘s first assignment of error is overruled.
Second Assignment of Error: The trial court erred and abused its discretion in imputing income to appellant for purposes of calculating the child support obligation
{25} Husband argues that the trial court erred and abused its discretion when it imputed income to him in the amount of $120,000 for purposes of calculating his child support obligation. Specifically, Husband argues that the trial court relied on Wife‘s testimony rather than the applicable statutory factors.
{27} To determine the potential income for a parent who the court finds is voluntarily unemployed or voluntarily underemployed, the court assesses the following factors:
- (i) The parent‘s prior employment experience;
- (ii) The parent‘s education;
- (iii) The parent‘s physical and mental disabilities, if any;
- (iv) The availability of employment in the geographic area in which the parent resides;
- (v) The prevailing wage and salary levels in the geographic area in which the parent resides;
- (vi) The parent‘s special skills and training;
- (vii) Whether there is evidence that the parent has the ability to earn the imputed income;
- (viii) The age and special needs of the child for whom child support is being calculated under this section;
- (ix) The parent‘s increased earning capacity because of experience;
- (x) The parent‘s decreased earning capacity because of a felony conviction;
- (xi) Any other relevant factor.
{28} The evidence shows that Husband was previously employed as an industrial equipment service and manufacturing consultant earning $120,000 annually, plus expense reimbursement checks. Upon the sale of Husband‘s former employer in 2015, the acquiring company offered Husband a position that Husband declined because he would not sign the required noncompete agreement. Since 2015, Husband‘s income was significantly reduced, ranging from approximately $15,000 to $21,000 annually.
{29} The trial court determined Husband was voluntarily underemployed. Husband was offered employment comparable to his previous position but declined to accept that employment. Wife testified that Husband wanted to start his own company to leave as a legacy to V.Y. A “parent‘s subjective motivations for being voluntarily unemployed or underemployed play no part in the determination whether potential income is to be imputed to that parent in calculating his or her support obligation.” Cimperman v. Cimperman, 8th Dist. Cuyahoga No. 80807, 2003-Ohio-869, ¶ 45, quoting Rock, 67 Ohio St.3d 108 at 111, 616 N.E.2d 218. See also Chandler v. Chandler, 11th Dist. Trumbull No. 2016-T-0046, 2017-Ohio-710. (Husband who could earn a higher annual salary but elected to defer income while
{30} Further, the trial court considered the relevant
{31} Husband argues that the trial court was concerned about his mental condition, presumably suggesting his imputed income should be less than his prior salary because of a physical or mental disability allowed for under
{33} Recognizing Husband‘s prior employment and earning capacity, his decision to forego employment due to a noncompete agreement, the court‘s interpretation of Husband‘s veracity, and the absence of any objective evidence that weighs against the trial court‘s decision, we cannot say that the trial court abused its discretion when it imputed an income of $120,000 to Husband. Therefore, Husband‘s second assignment of error is overruled.
{34} For ease of discussion, we will address Husband‘s third, fourth, fifth, and seventh assignments of error together.
{35} In his third assignment of error, Husband argues that the trial court erred when it granted Wife child support retroactive to February 1, 2020, when Wife did not file a motion for child support during the pendency of their divorce.
{36} In his fourth assignment of error, Husband contends that the trial court erroneously failed to hold an evidentiary hearing on his motion to strike the parties’ stipulations.
{37} In his fifth assignment of error, Husband contends that the trial court erred and abused its discretion when it relied on an outdated parenting plan and did not defer to the GAL‘s testimony when it designated Wife as residential parent and legal custodian of V.Y. and awarded minimal supervised visitation to Husband.
{38} In his seventh assignment of error, Husband argues that the trial court erred and abused its discretion when it divided the parties’ retirement assets and granted Wife a greater share of those assets.
{39}
{40} “Appellate courts are not advocates.” Taylor-Stephens v. Rite Aid of Ohio, 8th Dist. Cuyahoga No. 106324, 2018-Ohio-4714, ¶ 121. The appellant, rather than the appellate court, bears the burden to construct the necessary legal arguments that support the designated assignments of error. Doe v. Cuyahoga Cty. Community College, 8th Dist. Cuyahoga No. 110590, 2022-Ohio-527, ¶ 26, citing Taylor-Stephens. In his third, fourth, fifth, and seventh assignments of error, Husband fails to cite any legal authority in support of his arguments. We decline to review these assignments of error pursuant to the appellate rules and, therefore, these assignments of error are overruled.
Sixth Assignment of Error: The trial court erred and abused its discretion in its valuation dates for the parties’ accounts
{41} In his sixth assignment of error, Husband argues that the trial court erred and abused its discretion when it valued the parties’ bank and investment accounts. Specifically, Husband argues that the valuations used by the court were submitted exclusively by Wife and did not allow for equal division of the accounts.
{42} On January 11, 2019, and January 15, 2020, Wife filed financial disclosure forms that listed bank and investment accounts held both individually by herself and jointly with Husband. On January 17, 2020, Husband filed a financial disclosure form that also identified the parties’ individual and joint accounts. The amounts listed in the financial disclosure forms stated present fair market values.
{43} The trial court‘s decision filed on November 2, 2021 (“November 2, 2021 judgment entry“) specified the distribution of the marital assets including bank and investment accounts, real property, and automobiles. For purposes of this review, we are only concerned with the bank and investment accounts. The November 2, 2021 judgment entry identified the parties’ bank and investment accounts, their valuation dates, and the balances for each account. The judgment entry referenced exhibit No. 2 that was attached and identified the bank and investment accounts as well as to whom the accounts were titled, the valuation dates of the accounts, and the court‘s division of those accounts between Husband and Wife.
{44} The November 2, 2021 judgment entry and exhibit No. 2 incorporated information from both parties’ financial disclosure forms: the bank account balances reflected the amounts listed on Wife‘s financial disclosure forms, the IRA account balances reflected the amounts listed on Husband‘s financial disclosure
{45} ““The determination as to when to apply a valuation date other than the actual date of divorce is within the discretion of the trial court and cannot be disturbed on appeal absent a demonstration of an abuse of discretion.” Abernethy v. Abernethy, 8th Dist. Cuyahoga No. 80406, 2002-Ohio-4193, ¶ 19, quoting Gullia v. Gullia, 93 Ohio App.3d 653, 666, 639 N.E.2d 822 (8th Dist.1994).
{46} Husband argues that the court should have applied October 10, 2018 as the valuation date rather than December 2019 or January 2020. Husband argues that on October 10, 2018, Wife filed for divorce and the court issued its mutual restraining order that enjoined the parties from withdrawing funds from the accounts. To remedy any inequity caused by either party withdrawing funds from an account following issuance of the restraining order, Husband contends that the trial court should have used the date the mutual restraining order was issued for the valuation date.
{47} The trial court valued all the bank and investment accounts, except the certificate of deposit, as of December 2019 or January 2020. The contested trial
{48} Additionally, the trial court found “that no evidence was presented to establish that an equal division of marital property would be equitable.” A trial court has broad discretion to determine equitable property division and “[t]he mere fact that a property division is unequal, does not, standing alone, amount to an abuse of discretion.” Martin v. Martin, 18 Ohio St.3d 292, 294, 480 N.E.2d 1112 (1985), quoting Cherry v. Cherry, 66 Ohio St.2d 348, 421 N.E.2d 1293 (1981), paragraph two of the syllabus. Here, the trial court specifically stated that while the property division was not equal it was equitable because of “the length of time the parties have been separated; the fact that [Wife] has had 100% of the parenting time with the parties’ minor child, and has borne 100% of the child‘s expenses since January 31, 2020; and because [Husband] has been the cause of significant delay.”
{49} We find the trial court‘s division of the parties’ bank and investment accounts and valuation of those accounts on a date other than October 2018, did not amount to an abuse of discretion. Husband‘s sixth assignment of error is overruled.
{50} In his eighth assignment of error, Husband contends that the trial court erred and abused its discretion when it found that Husband was not entitled to spousal support.
{51} “Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion as required by
{52} A review of the record shows that Husband‘s argument about spousal support was not raised in Husband‘s objections to the magistrate‘s decision. Husband also failed to invoke the plain-error doctrine on his appeal of this issue. Where the appellant fails to object to a trial court‘s finding or conclusion under
{53} Accordingly, we overrule Husband‘s eighth assignment of error.
{54} Husband argues that the trial court erred and abused its discretion when it found Wife entitled to claim V.Y. for all federal income tax purposes.
{55} A trial court‘s allocation of the tax dependency exemption is reviewed under an abuse of discretion standard. Madden v. Madden, 8th Dist. Cuyahoga No. 71302, 1997 Ohio App. LEXIS 4809, 8-9 (Oct. 30, 1997). The decision is premised on the best interest of the child. Branden v. Branden, 8th Dist. Cuyahoga No. 91453, 2009-Ohio-866, ¶ 36, quoting Keating v. Keating, 8th Dist. Cuyahoga No. 90611, 2008-Ohio-5345, ¶ 90, quoting Foster v. Foster, 6th Dist. Sandusky No. S-03-037, 2004-Ohio-3905, ¶ 22.
{56} According to
In cases in which the parties do not agree which parent may claim the children as dependents, the court shall consider, in making its determination, any net tax savings, the relative financial circumstances and needs of the parents and children, the amount of time the children spend with each parent, the eligibility of either or both parents for the federal earned income tax credit or other state or federal tax credit, and any other relevant factor concerning the best interest of the children.
{57} The court found pursuant to
{58} Husband fails to demonstrate that the trial court abused its discretion when it allocated the tax exemption to Wife. Thus, Husband‘s ninth assignment of error is overruled.
Tenth Assignment of Error: The trial court erred and abused its discretion in denying appellant‘s motion for new trial and request for findings of fact and conclusions of law
{59} Husband argues that the trial court erred and abused its discretion when it denied his motion for new trial and request for findings of fact and conclusions of law. Specifically, Husband argues that the trial court erred when it found his eight-page, single-spaced, pro se motion for new trial “failed to establish
{60} The standard of review we apply to a trial court‘s ruling on a
A motion for new trial brought under
Civ.R. 59(A)(1) , (2), (3), (4), (5), (6), or (8) is reviewed for an abuse of discretion. Gateway Consultants Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist. Cuyahoga No. 104014, 2017-Ohio-1443, ¶ 12, 13; Johnson v. Johnson, 5th Dist. Stark No. 2015CA00076, 2015-Ohio-4748, ¶ 16-17; GMS Mgt. Co. v. Coulter, 11th Dist. Lake No. 2005-L-071, 2006-Ohio-1263, ¶ 20-21. A motion for new trial brought underCiv.R. 59(A)(7) or (9), is reviewed de novo. Gateway Consultants Group at ¶ 12, 22.
Moore v. Moore, 6th Dist. Erie No. E-17-011, 2018-Ohio-1545, ¶ 14.
{61} Upon a review of the record, we find that the trial court did not abuse its discretion when it denied Husband‘s motion for new trial pursuant to
{62} In addition to filing his motion for new trial, Husband filed a request for findings of fact and conclusions of law relating to the trial court‘s denial of his motion for new trial.
{63} Husband‘s tenth assignment of error is overruled.
{64} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common pleas court, domestic relations division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR