[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.
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___________________________________
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.
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JUDGES