[Cite as Kimmel v. Kimmel, 2012-Ohio-3306.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
NICHOLAS G. KIMMEL,
PLAINTIFF-APPELLANT, CASE NO. 16-11-11
v.
ALISHA K. KIMMEL, OPINION
DEFENDANT-APPELLEE.
Appeal from Wyandot County Common Pleas Court
Domestic Relations Division
Trial Court No. 09-DR-0120
Judgment Affirmed
Date of Decision: July 23, 2012
APPEARANCES:
Kevin P. Collins for Appellant
James M. Ruhlen for Appellee
Case No. 16-11-11
SHAW, P.J.
{¶1} Plaintiff-appellant Nicholas G. Kimmel (“Nick”) appeals the October
10, 2011 judgment of the Wyandot County Court of Common Pleas dividing the
marital estate and designating defendant-appellee Alisha K. Kimmel (“Alisha”)
residential parent of the parties’ three children.
{¶2} Nick and Alisha were married July 20, 1996. Three children were
born during the marriage: Julie, born August, 1997, Travis born February, 2000,
and Bryce born November, 2003. Throughout the marriage Nick worked
primarily as a mechanic and Alisha was primarily a stay-at-home mom. Alisha
occasionally did some sewing work out of the home and eventually started
working part-time as a waitress at Jac-N-Do’s pizza.
{¶3} Nick and Alisha separated in October or November of 2009 and Nick
filed for divorce on grounds of incompatibility on November 19, 2009. Alisha
filed her answer and counterclaim for divorce December 8, 2009.
{¶4} On December 9, 2009, temporary orders were issued designating Nick
as residential parent of the parties’ three children. On December 13, 2010, Alisha
was granted residential parent status of the parties’ three children.1
1
Throughout the proceedings there were instances of domestic violence between Nick and Alisha. Alisha
was convicted of domestic violence from one incident. Nick and Alisha were both charged with domestic
violence from another incident. Nick pled no contest to those charges. Nick filed for multiple civil
protection orders against Alisha. Later, Nick was investigated by Job and Family Services for allegations
of physical child abuse. It was after these allegations that residential parent status was changed to Alisha.
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{¶5} On March 29, 2010, the Magistrate conducted an in camera interview
of the parties’ children. The Magistrate found that the children had sufficient
reasoning ability to express their wishes and concerns. On June 21, 2010, the
Magistrate conducted a second interview with the parties’ children wherein the
children expressed their desire to reside with their mother.
{¶6} On July 6, 2010, the divorce action was stayed due to the parties filing
for bankruptcy. On January 6, 2011, upon completion of the bankruptcy
proceedings, the case was reactivated.
{¶7} On March 8-9, 2011, the final divorce hearing was held before the
Magistrate.
{¶8} On April 28, 2011, the Magistrate filed her decision. As part of the
Magistrate’s 37-page decision, Nick was awarded assets valued at $51,464 and
Alisha was awarded assets valued at $13,078. In order to make the distribution
equal, the Magistrate ordered Nick to pay $19,193 to Alisha. A portion of that
money would come from the sale of several of the parties’ vehicles at auction.2
{¶9} The April 28, 2011 Magistrate’s decision also designated Alisha as
residential parent of the parties’ three children. Nick was given parenting time in
accordance with the local rules.
2
As Nick was a mechanic, the parties had several vehicles that were not used as primary transportation.
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{¶10} On May 10, 2011, Nick filed his preliminary objections to the
Magistrate’s decision challenging factual and legal findings of the Magistrate. On
August 9, 2011, Nick filed supplemental objections to the Magistrate’s decision.
On August 26, 2011, Alisha filed a response to Nick’s objections.
{¶11} On October 3, 2011, the trial court entered a 20-page Judgment Entry
finding that “while some objections [to the Magistrate’s decision] were sustained,
they were collectively too insignificant to cause this Court to do anything but
adopt the decision of the Magistrate.” (Doc. No. 168). The Magistrate’s decision
was then adopted and made the order of the court.
{¶12} On October 10, 2011, the trial court entered a Judgment Entry titled
“Decree of Divorce” specifically enumerating the terms already established in the
Magistrate’s decision and the trial court’s October 3, 2011 Judgment Entry. It is
from this judgment that Nick appeals, asserting the following assignments of error
for our review.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY DIVIDING THE MARITAL ESTATE
INEQUITABLY AND UNEQUALLY.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN DESIGNATING ALISHA TO
BE THE CHILDREN’S RESIDENTIAL PARENT.
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First Assignment of Error
{¶13} In his first assignment or error, Nick argues that the trial court
inequitably divided the marital estate. Specifically, Nick argues that the trial
court’s valuation of the marital residence was improper, that the trial court’s
valuations of four of the parties’ vehicles credited to Nick were improper, that the
trial court improperly credited Nick with all of the 401(k) funds, and that the trial
court failed to recognize that Nick incurred debt when he redeemed a recreational
“camper” from the bank after it had been repossessed.
{¶14} It is well-settled that trial courts have “broad discretion to determine
what property division is equitable in a divorce proceeding. The mere fact that a
property division is unequal, does not, standing alone, amount to an abuse of
discretion.” Cherry v. Cherry, 66 Ohio St.2d 348 (1981), paragraph two of the
syllabus. A trial court’s decision allocating marital property and debt will not be
reversed absent an abuse of discretion. Jackson v. Jackson, 3d Dist. No. 11-07-11,
2008-Ohio-1482, ¶ 15, citing Holcomb v. Holcomb, 44 Ohio St.3d 128, 131
(1989). An abuse of discretion is more than a mere error; it implies that the
court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion
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standard, a reviewing court may not simply substitute its judgment for that of the
trial court. Id
Marital Residence
{¶15} Nick first argues that the court erred in valuing the marital residence
at $94,340. Nick claims on appeal that the appropriate valuation of the marital
residence was $68,000, the amount that Nick claims he reaffirmed on the debt of
the residence after the parties went through bankruptcy.
{¶16} When the parties separated, Nick maintained the marital residence
and Alisha moved out. Alisha stated that she did not want the residence and had
no idea how much it was worth. (Tr. Vol. II at 336). When the parties went
through bankruptcy proceedings the marital residence was valued at $94,340.
(Def.’s Ex. A). At the final divorce hearing, in testimony that the trial court
described in its review of the objections to the Magistrate’s decision as a
“confusing mess,” Nick claimed that he felt the marital residence was worth
$50,000. (Doc. No 168); (Tr. Vol. I at 155). The Magistrate reasoned that it
defied common sense for Nick to reaffirm a debt of $68,000 on a residence worth
$50,000. (Doc. No. 141). Finding Nick’s testimony not to be credible, the
Magistrate used the value on the parties’ bankruptcy petition, $94,340, as the
value of the marital residence.
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{¶17} Despite Nick’s claim on appeal that the marital residence should be
valued at $68,000, Nick produced no documentation showing the value of the
marital residence to be $68,000. Nick also did not produce any documentation
establishing any amount that he reaffirmed on the debt of the marital residence, or
that he even reaffirmed the debt at all.3 The trial court stated that Nick’s
“argument that the property be valued at the amount he was willing to pay his
grandmother is not a credible basis for using this valuation. This would not be
considered an arms length [sic] transaction.” (Doc. No. 168). Under these
circumstances, we find that the bankruptcy petition provided competent credible
evidence to support the valuation of the residence and that Nick’s argument for a
different, unsupported valuation of the marital residence is without merit.
Therefore we cannot find an abuse of discretion.
Vehicles
{¶18} Nick next argues that the trial court erred in its valuations of several
of the vehicles that were owned by the parties. The cars at issue are a 1996
Pontiac GM, valued in the bankruptcy petition, by the Magistrate, and
subsequently the trial court, at $2,000, a 2001 Ford Escort valued at $2,000, a
2002 Ford Escort valued at $2,000, and a 1995 Mystique valued at $250.4
3
The debt owed on the residence was actually to his grandmother.
4
The descriptions of the make/model of the vehicles are not internally consistent in the same paragraph in
Nick’s brief. The Ford Escorts are described as a 2001 and a 2002 at the beginning of one paragraph and
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{¶19} During the pendency of the divorce, the Magistrate issued a
temporary order specifically restricting the parties from selling property without
an agreement. (Doc. No. 27). Notwithstanding this order, at trial Nick claimed he
sold both of the Ford Escorts for $100 each, sold the 1996 Pontiac GM for $250,
and sold the 1995 Mystique for $50. All four vehicles were sold to the same
person, Scott Welker, an acquaintance of Nick’s. (Tr. Vol. I. at 175, 178). No
agreement was reached between the parties to sell the vehicles. Nick now argues
on appeal that the vehicles should have been valued at the price that they sold for
rather than the price included on the parties’ bankruptcy petition, or in the case of
the Mystique, the value used in Alisha’s brief. Nick now claims that the amounts
on the bankruptcy petition were written with the idea that the vehicles were all in
repaired condition. Nick claims the vehicles were not in “repaired” condition
when sold.
{¶20} The Magistrate found Nick’s testimony regarding the value of the
vehicles not to be credible and thus primarily used the values in the parties’
bankruptcy petition to determine their value. The Magistrate found Nick’s
testimony regarding the vehicles not credible because “the Mystique is still in
[Nick’s] possession, and the Escorts are at Nic[k]’s place of employment.” (Doc.
later described, using the testimony of Nick, as two 2002 Ford Escorts. The 1995 Mystique is described as
both a Ford and a Mercury. The 1996 Sable is also described as a 1996 Pontiac GM. (Appt. Br. at 16).
The 1995 Mystique was valued at $250 in Alisha’s brief.
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No. 141). The Magistrate found that this “shadow[ed]” Nick’s testimony with
doubt as the vehicles were still “accessible to him.” (Id.) Furthermore, the
Magistrate was troubled by Nick’s “failure to recall things that would be
incriminating, such as when he last used a towing service to move the Escort to his
place of employment.” (Id.) The record supports these findings, in that pictures
were taken and identified of the Escorts at Nick’s place of business after the
purported sale. (Def.’s Exs. E, F, G, H, J); (Tr. Vol. I 176-85). Further, the record
also supports the finding that Nick failed to recall when he used a towing service
to move the vehicles from his home to his place of employment. (See Tr. Vol. II at
20-27).
{¶21} Due to Nick ignoring the court order, the suspicious nature of the
sale of the vehicles, and the Magistrate’s finding that Nick’s testimony was not
credible, we do not find an abuse of discretion in using the alternative valuation of
the vehicles contained in the record.
401(k)
{¶22} Nick next argues that the trial court erred in crediting him with the
amount of $5,000 for his 401(k). In response, Alisha argues that Nick never
objected to the Magistrate’s decision crediting Nick with the 401(K), and, in the
alternative, that Nick used the 401(k) funds for personal use.
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{¶23} Civil Rule 53(D)(3)(b)(ii) governs the filing of objections to a
magistrate’s decision and provides that “[a]n objection to a magistrate’s decision
shall be specific and state with particularity all grounds for objection.” Except for
a claim of plain error, a party is prohibited from assigning as error on appeal the
trial court’s adoption of any finding of fact or legal conclusion, unless that party
has objected to that finding or conclusion of the trial court. Civ.R.
53(D)(3)(b)(iv).
{¶24} Throughout some 45 pages of preliminary and supplemental
objections, the 401(k) funds were not mentioned a single time. The trial court thus
had no cause to address the 401(k) funds in reviewing the Magistrate’s decision.
Consequently, Nick has waived all but plain error in the trial court’s judgment.
The plain error doctrine is not favored in civil appeals and “may be applied only in
the extremely rare case involving exceptional circumstances where error, to which
no objection was made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the
legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79
Ohio St.3d 116, 1997-Ohio-401, syllabus.
{¶25} In reviewing the record, we do not find this to be a case of plain
error. Nick cashed in the 401(k) prior to the final divorce hearing in violation of
court order, and spent large portions of whatever money he obtained on himself
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and paying bills, including buying a side of beef (Tr. Vol. I at 134). Furthermore,
no documentation was provided as to how much was in the 401(k), or what, if any,
taxes were paid. Based upon the foregoing, we do not find plain error regarding
the 401(k).
Camper
{¶26} In his last argument under this assignment of error, Nick argues that
the trial court erred by failing to recognize that Nick incurred $2500 in debt when
he redeemed the parties’ camper after it had been repossessed. In the final
distribution of property, the trial court awarded the camper to Alisha.
{¶27} When the parties originally separated, Alisha took the camper
pursuant to temporary orders. Alisha claims she made 15 payments on the camper
and that it was nearly paid off, but that it was repossessed when she missed a
payment. Nick claims that he obtained a loan from his parents to redeem the
camper and paid off the $2058 owed on the camper. However, there is no
documentation to support Nick’s claims regarding any money Nick purportedly
paid for the camper. Furthermore, the amount of the camper’s value was credited
to Alisha’s total assets. Therefore, we find no abuse of discretion failing to
recognize any alleged debt undertaken by Nick regarding the camper.
{¶28} Accordingly, Nick’s first assignment of error is overruled.
Second Assignment of Error
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{¶29} In his second assignment of error, Nick argues that the trial court
improperly designated Alisha as the residential parent of the parties’ three
children. Specifically, Nick argues that when considering the factors of R.C.
3109.04, it is in the best interests of the children that Nick be designated
residential parent. Nick places particular emphasis on the fact that Alisha has been
convicted of domestic violence, arguing that the court did not put enough weight
on this factor.
{¶30} An appellate court reviews a trial court’s decision on child custody
matters for an abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71 (1988);
Erwin v. Erwin, 3d Dist. No. 14-05-45, 2006-Ohio-2661, ¶ 12; Swain v. Swain, 4th
Dist. No. 04CA726, 2005-Ohio-65, ¶ 16. Due to the difficult and complicated
nature of custody determinations, appellate courts must grant wide latitude to a
trial court’s consideration of the evidence, and, thus, we will not reverse a child
custody decision that is supported by a substantial amount of competent, credible
evidence. Davis v. Flickinger, 77 Ohio St.3d 415, 418 (1997); Bechtol v. Bechtol,
49 Ohio St.3d 21 (1990), syllabus.
{¶31} In making an allocation of parenting rights, the court must consider
the best interests of the children. R.C. 3109.04(B)(1). In order to determine the
children’s best interests, the trial court is required to consider the factors outlined
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in R.C. 3109.04(F)(1), but may consider other additional factors as well. R.C.
3109.04(F)(1). Accordingly, we must examine the record to determine (1) that the
trial court considered all of the necessary factors listed in R.C. 3109.04(F)(1) and
(2) that there is competent, credible evidence supporting the trial court’s
conclusion that designating Alisha the residential parent is in the children’s best
interests.
{¶32} R.C. 3109.04(F)(1) directs the trial court to analyze the following
factors when looking to the best interest of the children:
(a) The wishes of the child's parents regarding the child's care;
(b) If the court has interviewed the child in chambers * * *
regarding the child's wishes and concerns as to the allocation of
parental rights and responsibilities concerning the child, the
wishes and concerns of the child, as expressed to the court;
(c) The child's interaction and interrelationship with the
child's parents, siblings, and any other person who may
significantly affect the child's best interest;
(d) The child's adjustment to the child's home, school, and
community;
(e) The mental and physical health of all persons involved in
the situation;
(f) The parent more likely to honor and facilitate court-
approved parenting time rights or visitation and companionship
rights;
(g) Whether either parent has failed to make all child support
payments, including all arrearages, that are required of that
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parent pursuant to a child support order under which that
parent is an obligor;
(h) Whether either parent or any member of the household of
either parent previously has been convicted of or pleaded guilty
to any criminal offense involving any act that resulted in a child
being an abused child or a neglected child; whether either
parent, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been
determined to be the perpetrator of the abusive or neglectful act
that is the basis of an adjudication; whether either parent or any
member of the household of either parent previously has been
convicted of or pleaded guilty to a violation of section 2919.25 of
the Revised Code * * *; whether either parent or any member of
the household of either parent previously has been convicted of
or pleaded guilty to any offense involving a victim who at the
time of the commission of the offense was a member of the
family or household that is the subject of the current proceeding
and caused physical harm to the victim in the commission of the
offense; and whether there is reason to believe that either parent
has acted in a manner resulting in a child being an abused child
or a neglected child;
(i) Whether the residential parent or one of the parents subject
to a shared parenting decree has continuously and willfully
denied the other parent's right to parenting time in accordance
with an order of the court;
(j) Whether either parent has established a residence, or is
planning to establish a residence, outside this state.
{¶33} In the Magistrate’s 37-page decision, the Magistrate specifically
addressed the factors of R.C. 3109.04(F)(1). In the trial court’s 20-page review of
Nick’s objections to the Magistrate’s decision, the trial court stated that “a review
of the transcript and Magistrate’s Decision reveals that the Magistrate had two,
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less than desirable, candidates from which to choose as residential parent.” (Doc.
No. 168). We will review the factors of R.C. 3109.04(F)(1), detailing briefly how
the Magistrate and the trial court addressed each factor and the evidence
supporting the judgment.
{¶34} With regard to factor (a), both parties wished to be residential parent,
and throughout the proceedings, both parties had been, at one time, designated as
residential parent. Nick was residential parent from the inception of the case until
December 13, 2010 when Alisha became residential parent in part as a result of an
investigation by Job and Family Services of Nick for allegations of physical abuse
of the children. (Doc. No. 141). All of this was noted in the Magistrate’s decision
adopted by the trial court. (Id.)
{¶35} With regard to factor (b), the Magistrate conducted two in camera
interviews of the children. The Magistrate found the children had “sufficient
reasoning ability to express[] their wishes [and] concerns.” (Doc. No. 141). The
children expressed their aversion to Nick’s girlfriend and their dissatisfaction for
Nick leaving them alone at night. During the second in camera interview, the
children expressed their desire to live with Alisha. This was relied upon in the
trial court’s judgment.
{¶36} With regard to factor (c), the Magistrate found that the children had a
relationship with each parent and the extended family on both sides. (Doc. No.
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141). Nick’s mother, Jane Kimmel, testified at the final hearing and appears from
the record to have a good relationship with the children and appears to be a good
influence on their development.
{¶37} With regard to factor (d), Alisha had moved several times since the
separation, but has since settled into a home in the same school district the
children were already attending during the marriage. There was testimony at the
final hearing regarding a series of tardies and absences from school by the children
occurring when they lived with Nick despite Nick only living three miles from the
school. (See Trans. Vol. I at 216-29).
{¶38} With regard to factor (e), the Magistrate found neither party had
mental or physical health issues. (Doc. No. 141). In reviewing the Magistrate’s
decision the trial court found that Nick did have physical issues with his acid
reflux and that both parties may “have mental health type issues, but not of a type
that is debilitating.” (Doc. No. 168). The record supports those findings in that
while Alisha was at one time in counseling, she had completed that counseling,
and while Nick was on medication for anxiety and depression, it is not clear from
the record that either was debilitating.
{¶39} With regard to factor (f), the Magistrate reasoned that both parties
were spending time with the children. That finding is supported in the record in
that the parties both regularly saw their children and for a stretch of the
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proceedings, they alternated weeks of custody. However, when it comes to the
parent more likely to respect court orders, in its Judgment Entry addressing the
objections, the trial court noted that Nick “does not respect Court Orders,” which
was substantiated by Nick selling vehicles in violation of temporary orders and
withdrawing his 401(k) in violation of temporary orders.
{¶40} With regard to factor (g), child support was not ordered in this case
and therefore neither party was behind in payment.
{¶41} With regard to factor (h), the Magistrate noted that Alisha had been
convicted of domestic violence against Nick and Nick had been charged with
domestic violence against Alisha. The Magistrate also noted that Nick had been
investigated for alleged physical abuse of the children. (Doc. No. 141). The
allegation arose out of an incident where Nick purportedly struck Bryce with a
peroxide bottle and struck Julie with a belt.5 (Tr. Vol. I at 28). In reviewing the
objections to the Magistrate’s decision, the trial court also noted that Alisha had an
incident of domestic violence with a recent (post-separation) boyfriend. (Doc. No.
168).
5
In reviewing the objections to the Magistrate’s decision, the trial court found that while it was true Nick
was investigated for physical abuse of the parties’ children, no testimony of that physical abuse being
“indicated” was re-introduced at the final hearing. Thus it was appropriate for the Magistrate to rely on the
fact that Plaintiff was investigated, but not appropriate to consider that the abuse allegations were
“indicated.” (Doc. No. 168).
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{¶42} With regard to factor (i), though the trial court and the Magistrate did
not explicitly mention it, there was some testimony that Nick and Alisha had each
denied the other parenting time or been late dropping off the children.
{¶43} With regard to factor (j), neither party indicated a desire to move out
of state.
{¶44} In looking at other factors outside of those in the statute, there was
concern on behalf of Nick of inappropriate pictures that the parties’ oldest child,
Julie, had posted on Facebook and an inappropriate picture Julie had taken of
herself in a bikini and sent to her boyfriend. Nick testified that he grounded Julie
for taking the pictures and that Alisha did not honor this despite his wishes. Nick
was concerned that Alisha did not appropriately monitor Julie’s internet activities.
However, Alisha testified that she did not have internet at home, limiting Julie’s
access, and, further, that Alisha regularly checked on Julie’s Facebook page. (Tr.
Vol. II. A t 241). Alisha testified that she tells Julie which pictures she does not
like and that she tells Julie to delete those pictures. (Tr. Vol. II at 326).
{¶45} When reviewing the factors in their totality, it is clear that the
Magistrate in making her decision, and the trial court in reviewing the objections,
balanced the competing factors. There was clearly positive and negative
testimony given regarding each party as the residential parent. In its review of the
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objection to the Magistrate’s decision naming Alisha residential parent of the
children, the trial court conducted the following analysis:
[Alisha] admits to engaging in domestic violence both with
[Nick] and a recent boyfriend. [Alisha] did little to address her
daughter’s unacceptable and perhaps dangerous
communications on the internet. [Alisha] had instability in her
life following the parties’ separation.
[Nick] has engaged in domestic violence also. The children had
excessive absences and tardies from school while in Plaintiff’s
exclusive care. The children do not like [Nick]’s girlfriend.
[Alisha] does not appear to appreciate the effect domestic
violence may be having on her children, nor how bringing men
she meets on the internet into her home poses a risk to the
children.
[Nick] fails to see how his immaturity is detrimental to the
children and cast him as a poor role model. ([Nick] had to be
told to sit up in Court, was noted to smirk, make faces, refused
to answer questions, etc., during the trial of this matter.) [Nick]
does not respect Court orders and demonstrates little respect for
[Alisha].
During the second in-camera interview the children, who were
found to possess the ability to articulate their desires, advised
they preferred to live with [Alisha]. They did not like [Nick]
leaving them alone at night nor did they care for [Nick]’s
attitude concerning their relationship with [Nick]’s girlfriend.
Perhaps the greatest support for naming [Alisha] as residential
parent is in the Magistrate’s finding to which there was no
objection. “Prior to the parties separating, [Nick] did not
interact much with the children. He would come home from
work and go to the garage. [Alisha] took care of the children.”
[Alisha] was the childrens’ (sic) primary caregiver. Given all
that these children have been through it is amazing that they do
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well at school and presented themselves as thoughtful and
articulate to the Magistrate. As the father was not that involved
in the childrens’ (sic) lives prior to the parties’ separation, it
appears [Alisha] did do something right in raising the children.
(Doc. No. 168).
{¶46} The foregoing discussion makes clear that the trial court seriously
considered the positive and negative aspects of designating each party residential
parent. As the decision is supported by competent credible evidence in the record
as discussed above, we cannot find that the trial court abused its discretion in
naming Alisha residential parent of the parties’ three children. Accordingly,
Nick’s second assignment of error is overruled.
{¶47} For the foregoing reasons, Nick’s assignments of error are overruled
and the judgment of the trial court is affirmed.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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