Rowan v. Kemery

[Cite as Rowan v. Kemery, 2011-Ohio-2307.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

DANIELLE ROWAN (fka KEMERY) JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 10 CA 117
LEE DARREN KEMERY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 09 DR 1557

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 12, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

VICKY M. CHRISTIANSEN DAVID B. STOKES
CHRISTIANSEN CO., LPA 21 West Church Street
172 Hudson Avenue Suite 206
Newark, Ohio 43055 Newark, Ohio 43055
Licking County, Case No. 10 CA 117 2

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.

Furthermore, 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, inter 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 herein 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.
Licking County, Case No. 10 CA 117 3

{¶6} “II. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

ITS CALCULATION OF CHILD SUPPORT AND RELATED ISSUES.

{¶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.
Licking County, Case No. 10 CA 117 4

{¶14} “X. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN

ORDERING EACH PARTY TO PAY HIS/HER OWN CREDIT CARDS.

{¶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.
Licking County, Case No. 10 CA 117 5

Tennant v. Martin-Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010-Ohio-3489, ¶ 16,

citing Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA-5758, 1982 WL 2911.

{¶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 grossed $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 R.C. 3119.01 are broad and expansive to protect the child's best interests.”

Vonderhaar-Ketron v. Ketron, Fairfield App.No. 10 CA 22, 2010-Ohio-6593, ¶ 48, citing

Bishop v. Bishop, Scioto App.No. 03CA2908, 2004-Ohio-4643, ¶ 16 (additional citation

omitted). Upon review, we find no abuse of discretion in the trial court’s calculations of

parental income for child support purposes.

{¶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 R.C. 3105.171(B), “[i]n divorce proceedings, the court shall ...

determine what constitutes marital property and what constitutes separate property. In

either case, upon making such a determination, the court shall divide the marital and
Licking County, Case No. 10 CA 117 6

separate property equitably between the spouses, in accordance with this section.” R.C.

3105.171(C)(1) further 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.”

{¶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 proper 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.
Licking County, Case No. 10 CA 117 7

{¶27} “The concept of marital property is derived from the premise that marriage

is a voluntary partnership of co-equal partners with a division of duties and labor that

entitles each partner to a one-half interest in the assets accumulated from the fruits of

the partnership activity while the marriage is functioning.” Tomlin v. Tomlin (March 16,

1987), Montgomery App. No. 10094, citing Wolfe v. Wolfe (1976), 46 Ohio St.2d 399,

350 N.E.2d 413. 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 the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore,

supra.

{¶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.
Licking County, Case No. 10 CA 117 8

{¶30} Appellant's Third, Fourth, and Fifth Assignments of Error are overruled.

VI.

{¶31} In his Sixth Assignment of Error, appellant 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 R.C. 3109.04(B)(1);

Trent v. Trent (May 10, 1999), Preble App. No. CA 98-09-014, 1999 WL 298073. Our

review of a trial court's decision allocating parental rights and responsibilities is under an

abuse-of-discretion standard. Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d

846.

{¶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 to 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.
Licking County, Case No. 10 CA 117 9

VII.

{¶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} R .C. 3105.171(A)(2) creates a statutory presumption that the proper date

for the termination of a marriage, for purposes of the division of marital property, is the

date of the final divorce hearing. Bowen v. Bowen (1999), 132 Ohio App.3d 616, 630,

725 N.E.2d 1165. Therefore, it is presumed the date of the final divorce hearing is the

appropriate termination date of the marriage. Glick v. Glick (1999), 133 Ohio App.3d

821, 828, 729 N.E.2d 1244. However, the trial court has broad discretion in choosing

the appropriate marriage termination date and this decision cannot be disturbed on

appeal absent an abuse of discretion. See Berish v. Berish (1982), 69 Ohio St.2d 318,

321, 432 N.E.2d 183; Budd v. Budd, Summit App.No. 24485, 2009-Ohio-2674, ¶ 12.

{¶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.
Licking County, Case No. 10 CA 117 10

{¶40} An award of attorney's fees lies within the sound discretion of the trial

court. Rand v. Rand (1985), 18 Ohio St.3d 356, 359, 481 N.E.2d 609. R.C. 3105.73(A)

reads as follows: “In an action for divorce, dissolution, legal separation, or annulment of

marriage or an appeal of that action, a court may award all or part of reasonable

attorney's fees and litigation expenses to either party if the court finds the award

equitable. In determining whether an award is equitable, the court may consider the

parties' marital assets and income, any award of temporary spousal support, the

conduct of the parties, and any other relevant factors the court deems appropriate.”

{¶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.
Licking County, Case No. 10 CA 117 11

{¶45} Civ.R. 6(D) states in pertinent part: “A written motion, other than one

which may be heard ex parte, and notice of the hearing thereof shall be served not later

than seven days before the time fixed for the hearing, unless a different period is fixed

by these rules or by order of the court. ***.” Under this rule, a party is entitled to

sufficient notice and time to prepare for a hearing in order to avoid undue prejudice. See

In Re Foreclosure of Liens for Delinquent Taxes (1992), 79 Ohio App.3d 766, 771.

{¶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 of 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 applied 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 ordered that “[p]laintiff and defendant shall pay their own
Licking County, Case No. 10 CA 117 12

credit cards.” Id. We find the court’s remedy in these circumstances to be equitable and

clearly within the bounds of its discretion.

{¶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 persuaded 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 disagree.

{¶58} R.C. 3119.82 reads as follows:
Licking County, Case No. 10 CA 117 13

{¶59} “Whenever a court issues, or whenever it modifies, reviews, or otherwise

reconsiders a court child support order, it shall designate which parent may claim the

children who are the subject of the court child support order as dependents for federal

income tax purposes as set forth in section 151 of the ‘Internal Revenue Code of 1986,’

100 Stat. 2085, 26 U.S.C. 1, as amended. * * * If the parties do not agree, the court, in

its order, may permit the parent who is not the residential parent and legal custodian to

claim the children as dependents for federal income tax purposes only if the court

determines that this furthers the best interest of the children and, with respect to orders

the court modifies, reviews, or reconsiders, the payments for child support are

substantially current as ordered by the court for the year in which the children will be

claimed as dependents. 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.

{¶60} “* * *”

{¶61} The language of R.C. 3119.82 “does not require that the trial court state its

reasons on the record for awarding the exemption.” Streza v. Streza, Lorain App. No.

05CA008644, 2006-Ohio-1315, 2006 WL 709056, ¶ 12. The decision to allocate tax

exemptions is a matter left to the sound discretion of the trial court. In re Custody of

Harris, 168 Ohio App.3d 1, 2006-Ohio-3649, 857 N.E.2d 1235, ¶ 55.
Licking County, Case No. 10 CA 117 14

{¶62} Appellant asserts, without specific caselaw support, that he should at least

be entitled to claim the exemption every other year. However, the trial court presumably

considered the factors under R.C. 3119.82 and determined that “the child will have

more benefit by [appellee] being awarded the exemption according to the IRS

regulations.” Divorce Decree at 12. Upon review, we find no record demonstration of an

abuse of discretion under the facts and circumstances presented.

{¶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.

___________________________________

___________________________________

___________________________________

JUDGES
JWW/d 0413
Licking County, Case No. 10 CA 117 15

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

DANIELLE ROWAN (fka KEMERY) :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
LEE DARREN KEMERY :
:
Defendant-Appellant : Case No. 10 CA 117

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.

___________________________________

___________________________________

___________________________________

JUDGES