Lindenmayer v. Lindenmayer

[Cite as Lindenmayer v. Lindenmayer, 197 Ohio App.3d 580, 2011-Ohio-5511.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

LINDENMAYER,

Appellee,

v.

LINDENMAYER,

Appellant.

JUDGES:
Hon. Sheila G. Farmer, P.J.
Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.

Case No. 11 CA 43

OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 2008 DR 1286

JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded

DATE OF JUDGMENT ENTRY: October 27, 2011
APPEARANCES:

Cindy Ripko
for appellee.

George W. Leach
for appellant.

WISE, Judge.

{¶ 1} Defendant-appellant, Stephanie Lindenmayer, appeals from her divorce in

the Court of Common Pleas, Licking County. Plaintiff-appellee, Vernon Lindenmayer, is

appellant’s former spouse. The relevant facts leading to this appeal are as follows.

{¶ 2} Appellant and appellee were married in April 1997. Two children were

born of the marriage.

{¶ 3} In August 2008, in separate cases in Licking County Juvenile Court (Nos.

C2008-0639 and C2008-0640), Licking County Children Services (“LCCS”) filed for

emergency shelter care of the parties’ two children, which was thereupon granted by

that court. On October 27, 2010, the juvenile court granted legal custody of both

children to appellee and terminated the agency’s involvement.

{¶ 4} In the meantime, in the case sub judice, on September 17, 2008, appellee

filed for divorce in the Licking County Court of Common Pleas, Domestic Relations

Division. The matter proceeded to a full evidentiary hearing on May 24, 2010. Appellant

argued her case pro se at that time. The trial court took the matter under advisement.

{¶ 5} On July 8, 2010, before the divorce decree was issued, appellant filed for

bankruptcy in federal court. Appellee did not join in the bankruptcy petition. A stay was
thereupon placed against the divorce proceedings. On December 2, 2010, shortly after

the bankruptcy was discharged, the divorce case was reactivated.

{¶ 6} The trial court then set the matter for a status hearing on January 11,

2011. After a brief hearing, at which appellant appeared with counsel, the trial court

issued an entry permitting both sides to submit proposed judgment entries/decrees.

{¶ 7} On March 8, 2011, the trial court issued a final decree of divorce. The

court, inter alia, divided marital property and debt, ordered no spousal support for either

party, and ordered that jurisdiction over the children would remain with the juvenile

court.

{¶ 8} Appellant filed a notice of appeal on April 8, 2011, and herein raises the

following ten assignments of error:

{¶ 9} “I. The trial court abused its discretion in not granting defendant-appellant

spousal support.

{¶ 10} “II. The trial court abused its discretion in the allocation of marital assets

and liabilities.

{¶ 11} “III. The trial court abused its discretion and is in violation of federal law

when it ruled defendant-appellant was responsible to pay additional debts after her

debts were discharged in bankruptcy.

{¶ 12} “IV. The trial court abused its discretion when the court declined to

assume jurisdiction over matters involving residential parent status, child support, health

insurance, and tax exemption and did not have a hearing to determine defendant-

appellant's fitness as a parent.
 {¶ 13} “V. The trial court abused its discretion when it did not have an oral

hearing after the trial but before the final decision.

{¶ 14} “VI. Ineffective assistance of counsel occurred when defense counsel

refused to file a motion to consolidate jurisdiction of the parties' juvenile court case and

the domestic court case.

{¶ 15} “VII. Ineffective assistance of counsel occurred when defense counsel

turned in a proposed judgment entry to the court which suggested that plaintiff should

retain his entire 401k retirement account after defendant specifically informed counsel

that she wished to ask the court for half of plaintiff's retirement.

{¶ 16} “VIII. Ineffective assistance of counsel occurred when defense counsel

did not offer evidence nor did he insist on an oral hearing before the judge.

{¶ 17} “IX. Ineffective assistance of counsel occurred when defense counsel did

not request a continuance of the oral hearing set before the judge on January 12, 2011.

{¶ 18} “X. Ineffective assistance of counsel occurred when defense counsel

refused to request that the subject case be transferred to Franklin County.”

{¶ 19} As an initial matter, because a court is generally required to provide for a

division of marital property prior to making a spousal-support award (see, e.g., Rinaldi v.

Rinaldi, Stark App.No. 2009CA00200, 2010-Ohio-3127, ¶ 54; R.C. 3105.171(C)(3)), we

are inclined to address appellant’s second assignment of error out of sequence.

I

{¶ 20} In her second assignment of error, appellant contends that the trial court

abused its discretion in dividing the parties’ marital property. We disagree.

{¶ 21} An appellate court generally reviews the overall appropriateness of the

trial court's property division in divorce proceedings under an abuse-of-discretion
standard. Cherry v. Cherry (1981), 66 Ohio St.2d 348, 421 N.E.2d 1293. 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, 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 fact-finder could base his or

her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d 768, 2010-Ohio-3489, 936

N.E.2d 1013, ¶ 16, citing Cross Truck Equip. Co. v. Joseph A. Jeffries Co. (Feb. 10,

1982), Stark App. No. CA–5758, 1982 WL 2911. 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.

{¶ 22} R.C. 3105.171(C)(1) states: “Except as provided in this division or division

(E)(1) of this section, the division of marital property shall be equal. If an equal division

of marital property would be inequitable, the court shall not divide the marital property

equally but instead shall divide it between the spouses in the manner the court

determines equitable. In making a division of marital property, the court shall consider

all relevant factors, including those set forth in division (F) of this section.”

{¶ 23} In the case sub judice, appellee was conditionally awarded the marital real

estate in Hebron, Ohio, which was “underwater” and in foreclosure, with a mortgage

balance of $268,771 and an appraisal value of $150,000. Appellee was to receive title

to the real estate if the foreclosure did not go forward, in which case appellee was

ordered to legally remove appellant’s name from any related financial obligation within
60 days of the decree. Furthermore, appellee was awarded the 2004 Audi with a value

of $20,750 and a loan balance of $28,862.47, for which appellant was to be held

harmless. Appellee was further ordered to pay a Visa debt of $3,449 and a cable bill of

$277, as well as unspecified debts related to his counseling.

{¶ 24} Appellant was awarded the 2008 Dodge Avenger (value $22,245) and the

dune buggy (value $1,000). Appellant was made responsible for any debt on the Dodge

and the dune buggy, the amount of which was not specified in the decree. Appellant

was also awarded the paddleboat (value $250) and the 1984 Ford truck (value $500),

as well as the parties’ two horses and a goat.

{¶ 25} Thus, other than appellee’s personal items, the import of which appellant

does not presently articulate, and the $10,000 retirement fund (401(K)), appellee was

awarded only debts and two “underwater” assets. Viewing the award in its entirety, we

do not find that the trial court abused its discretion in dividing the parties' marital

property. See also Koegel v. Koegel (1982), 69 Ohio St.2d 355, 432 N.E.2d 206

(emphasizing that a trial judge should be given wide latitude in dividing property

between the parties).

{¶ 26} Appellant's second assignment of error is overruled.

II

{¶ 27} In her first assignment of error, appellant contends that the trial court

abused its discretion in refusing to award spousal support to her and, by implication, in

declining to retain jurisdiction thereon. We agree.

{¶ 28} A trial court's decision concerning spousal support may be altered only if it

constitutes an abuse of discretion. See Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67,
554 N.E.2d 83. An abuse of discretion connotes more than an error of law or judgment;

it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.

Blakemore, 5 Ohio St.3d 217.

{¶ 29} R.C. 3105.18(C)(1)(a) through (n) provides the factors that a trial court is

to review in determining whether spousal support is appropriate and reasonable and in

determining the nature, amount, terms of payment, and duration of spousal support:

{¶ 30} “(C)(1) In determining whether spousal support is appropriate and

reasonable, and in determining the nature, amount, and terms of payment, and duration

of spousal support, which is payable either in gross or in installments, the court shall

consider all of the following factors:

{¶ 31} “(a) The income of the parties, from all sources, including, but not limited

to, income derived from property divided, disbursed, or distributed under section

3105.171 of the Revised Code; (b) The relative earning abilities of the parties; (c) The

ages and the physical, mental, and emotional conditions of the parties; (d) The

retirement benefits of the parties; (e) The duration of the marriage; (f) The extent to

which it would be inappropriate for a party, because that party will be custodian of a

minor child of the marriage, to seek employment outside the home; (g) The standard of

living of the parties established during the marriage; (h) The relative extent of education

of the parties; (i) The relative assets and liabilities of the parties, including but not limited

to any court-ordered payments by the parties; (j) The contribution of each party to the

education, training, or earning ability of the other party, including, but not limited to, any

party's contribution to the acquisition of a professional degree of the other party; (k) The

time and expense necessary for the spouse who is seeking spousal support to acquire
education, training, or job experience so that the spouse will be qualified to obtain

appropriate employment, provided the education, training, or job experience, and

employment is, in fact, sought; (l) The tax consequences, for each party, of an award of

spousal support; (m) The lost income production capacity of either party that resulted

from that party's marital responsibilities; (n) Any other factor that the court expressly

finds to be relevant and equitable.”

{¶ 32} Unlike the statute concerning property division, R.C. 3105.18 does not

require the lower court to make specific findings of fact regarding spousal-support

awards. While R.C. 3105.18(C)(1) does set forth 14 factors that the trial court must

consider, if the court does not specifically address each factor in its order, a reviewing

court will presume each factor was considered, absent evidence to the contrary. Carroll

v. Carroll, Delaware App.No. 2004–CAF–05035, 2004-Ohio-6710, ¶ 28, citing Watkins

v. Watkins, Muskingum App.No. CT 2001–0066, 2002-Ohio-4237.

{¶ 33} R.C. 3105.18(E) mandates that a trial court must specifically reserve

jurisdiction in its divorce decree or a separation agreement incorporated into the decree

in order to modify a spousal-support award. The decision of whether to retain such

jurisdiction is a matter within the domestic relations court's discretion. Smith v. Smith

(Dec. 31, 1998), Lucas App. No. L–98–1027, citing Johnson v. Johnson (1993), 88 Ohio

App.3d 329, 331, 623 N.E.2d 1294.

{¶ 34} In the case sub judice, the trial court awarded no spousal support to either

party. The trial court further did not retain jurisdiction over the issue of spousal support.

{¶ 35} According to the record, appellee, born in 1972, earns approximately

$71,500 per year and also receives $9,000 per year in Social Security benefits on
behalf of the parties’ two children. Appellant, born in 1966, worked until 1996 as a

registered nurse. She currently receives $16,752 per year in Social Security disability

benefits for a mental-health diagnosis. Appellant was a stay-at-home parent after the

first child was born until LCCS intervened in 2008. She has no investment or retirement

accounts; appellee, as noted, was awarded his 401(k) of $10,000 in the property

division. The trial court determined the duration of the marriage to be from April 24,

1997, until September 17, 2008, approximately 11 years. As noted in our redress of

appellant’s second assigned error, appellee was awarded, inter alia, the house and the

Audi, the loan balances exceeded the market value of both assets.

{¶ 36} The purpose of spousal support is “for sustenance and support of the * * *

former spouse.” Robbins v. Robbins, Clark App.No. 06CA0136, 2008-Ohio-495, ¶ 22,

citing R.C. 3105.18(A). While we herein indulge in the presumption that the court

considered all the statutory spousal support factors, Carroll, 2004-Ohio-6710, it is no

exaggeration in this instance to conclude that the trial court’s decision in this regard has

left appellant at a near-poverty level. She has lost her stake in the marital home, has no

retirement money, and is left, in her mid-forties, with some personal possessions, a

2008 Dodge automobile, and two other vehicles with minimal value. Although not the

result of the trial court’s orders, she has also lost custody of her children, gone through

a bankruptcy, and faces the task of treating her bipolar condition sufficiently to enable

re-entry into the workforce, from which she has been absent for over 15 years. We are

cognizant that appellant has not been made responsible for the bulk of the marital debt,

has not been ordered to pay child support, and has been, at least according to several

witnesses at trial, living with a male friend. However, considering the significant disparity
in the parties’ incomes and the limitations on appellant’s occupational and economic

situation in the foreseeable future, we are persuaded upon review of the record that the

court’s disallowance of spousal support and refusal to retain jurisdiction thereon was

unreasonable and unconscionable under the circumstances, and thus constituted an

abuse of discretion.

{¶ 37} Appellant's first assignment of error is therefore sustained.

III

{¶ 38} In her third assignment of error, appellant contends that the trial court

abused its discretion and acted in contravention of federal law by ordering her to

potentially pay any marital debts subsequent to her bankruptcy discharge. We disagree.

{¶ 39} The section of the divorce decree at issue states as follows:

{¶ 40} “The defendant [appellant] has filed Chapter 7 bankruptcy and it has been

discharged. Said discharge included marital and separate debt, therefore the Court

cannot make any further determination of same. To the extent that any marital debt has

not been discharged said debt shall be equally divided by the parties. Each shall pay

and hold the other harmless on the same. The defendant shall also pay and hold the

plaintiff harmless on any other individual debt in her name not discharged in

bankruptcy.”

{¶ 41} Appellant directs us to our decision in Bunch v. Bunch, Stark App.No.

2003CA00185, 2003-Ohio-6174, wherein a husband had obtained a bankruptcy

discharge, resulting in the trial court’s ordering in the divorce that all remaining marital

debt was the responsibility of the wife. Upon wife’s appeal, we concluded: “The trial

court acknowledged [the discharge] and told [wife] she could have availed herself of the
same protection, but chose not to do so. The trial court was bound by the discharge of

[husband’s] debts by the United States Bankruptcy Court. We find no error in the trial

court's decision.” Id. at ¶ 22-23.

{¶ 42} In the case sub judice, however, the roles are reversed: appellant

obtained the bankruptcy discharge and now argues that appellee is improperly

benefitting by his choice not to join in her bankruptcy petition. However, appellee was

likely seeking to protect his credit rating by avoiding bankruptcy, and it is not evident

that he acted in bad faith in so doing. Moreover, the trial court’s language reads as a

“catch-all” provision simply meant to cover any marital debt, if any, that was not

discharged by the bankruptcy action.

{¶ 43} We therefore find appellant’s reliance on Bunch misplaced, and we find no

error or abuse of discretion in the court’s redress of marital debt in this regard.

{¶ 44} Appellant’s third assignment of error is overruled.

IV
{¶ 45} In her fourth assignment of error, appellant contends that the trial court

abused its discretion in deferring jurisdiction over the child-related issues in the divorce

to the Licking County Juvenile Court. We disagree.

{¶ 46} R.C. 3109.04 mandates that in a divorce proceeding, the court shall

allocate parental rights and responsibilities regarding the minor children of the marriage.

However, Ohio law also recognizes the “the bedrock proposition that once a court of

competent jurisdiction has begun the task of deciding the long-term fate of a child, all

other courts are to refrain from exercising jurisdiction over that matter.” In re Adoption of

Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-4572, ¶ 10, citing In re Adoption of Asente

(2000), 90 Ohio St.3d 91, 92, 734 N.E.2d 1224. See also R.C. 2151.353(E).
 {¶ 47} We therefore find no merit in appellant’s claim that the trial court

erroneously failed to assert jurisdiction over the children under these circumstances.

Moreover, even if the juvenile court has since relinquished jurisdiction or does so in the

future, appellant has the ability to seek redress in child-related matters from the

domestic relations court by a postdecree motion.

{¶ 48} Accordingly, appellant’s fourth assignment of error is overruled.

V

{¶ 49} In her fifth assignment of error, appellant argues that the trial court erred in

declining to follow through with its scheduled posttrial hearing on January 12, 2011. We

disagree.

{¶ 50} We first note that the trial court did hold a brief hearing, sua sponte, on

January 12, 2011, albeit without additional formal evidence. However, appellant did not

request the opportunity to present further testimony at that time. Furthermore, the delay

in the issuance of a divorce decree in this matter was chiefly the result of appellant’s

decision to pursue bankruptcy after the trial had been heard. Therefore, it was her

burden to persuade the court that further proceedings were essential to proper

disposition of the divorce, which she declined to do. Under the invited-error doctrine, a

party in appellant’s position will not be permitted to take advantage of an error that she

herself invited or induced. He v. Zeng, Licking App. No. 2003CA00056, 2004-Ohio-

2434, 2004 WL 1077912, ¶ 13, citing State v. Bey (1999), 85 Ohio St.3d 487, 493, 709

N.E.2d 484.

{¶ 51} Accordingly, appellant’s fifth assignment of error is overruled.

VI
 {¶ 52} In her sixth, seventh, eighth, ninth, and tenth assignments of error,

appellant contends, on various grounds, that she was denied the effective assistance of

trial counsel during her divorce.

{¶ 53} We have recognized that a claim of ineffective assistance of counsel is not

a proper ground on which to reverse the judgment of a lower court in a civil case that

does not result in incarceration in its application when the attorney was employed by a

civil litigant. Phillis v. Phillis, 164 Ohio App.3d 364, 842 N.E.2d 555, 2005-Ohio-6200, ¶

53, citing Roth v. Roth (1989), 65 Ohio App.3d 768, 776, 585 N.E.2d 482. While this

court has allowed an exception for “ineffective assistance” claims in civil permanent-

custody appeals (see, e.g., In re Utt Children, Stark App.No. 2003CA00196, 2003-Ohio-

4576), this is not the case in this instance.

{¶ 54} Appellant’s sixth, seventh, eighth, ninth, and tenth assignments of error

are therefore overruled.

{¶ 55} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Licking County, Ohio, is hereby

affirmed in part and reversed in part, and the cause is remanded for further review of

spousal support.

Judgment affirmed in part

and reversed in part,

and cause remanded.

FARMER, P. J., and EDWARDS, J., concur.