Adkins v. Adkins

[Cite as Adkins v. Adkins, 2017-Ohio-8636.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

REGINA G. ADKINS, :

Plaintiff-Appellee, : CASE NO. CA2016-12-227

: OPINION
- vs - 11/20/2017
:

CURTIS M. ADKINS, :

Defendant-Appellant. :

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR2015-08-0654

Frank J. Schiavone IV, 6 South Second Street, Suite 520, Hamilton, Ohio 45011 and Joseph
A. Cesta, 1160 East Main Street, Lebanon, Ohio 45036, for plaintiff-appellee

Mark W. Raines, 246 High Street, Hamilton, Ohio 45011 and Mark A. Conese, 633 High
Street, Suite 102, Hamilton, Ohio 45011, for defendant-appellant

RINGLAND, J.

{¶ 1} Defendant-appellant, Curtis Adkins ("Father"), appeals from a decision of the

Butler County Court of Common Pleas, Domestic Relations Division, following his divorce

from plaintiff-appellee, Regina Adkins ("Mother"). For the reasons detailed below, we affirm.

{¶ 2} Mother and Father were married on March 4, 2000 and had two children by

issue of the marriage. Mother filed a complaint for divorce on September 8, 2015 and Father
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answered. The matter was tried to the court where the parties introduced testimony with

respect to parenting arrangements and allocation of the marital residence and other debts.

{¶ 3} The parties disputed the valuation of the marital residence. Mother testified

that the marital residence was worth $118,510 based on the valuation made by the Butler

County Auditor. Mother also testified that the parties had sold a similar property across the

street for $121,000 after agreeing to pay the Buyer's $3,000 closing costs. Father, however,

contested the Auditor's valuation and stated that the home was worth $140,000. At different

times, Father stated that he would purchase the house for $140,000, but conceded that he

had not obtained financing and would need six months to a year to secure the necessary

financing.

{¶ 4} As to custody and visitation of the children, both parties raised concerns with

each other's drinking. Father completed an addiction assessment, which indicated that he

consumed ten or more drinks per day and engaged in drinking and driving. Two witnesses

described Father's alcohol consumption at his daughter's soccer games. Though alcohol

was commonly shared by the parents during these morning soccer games, the witnesses

described Father's drinking in more concerning terms. One witness stated that Father drank

throughout the soccer tournaments to the point of intoxication. The witness noted that Father

was inappropriate at times and nearly always had a beer in his hand at the games. A witness

also detailed one instance in which Father consumed an entire pitcher of beer in one sitting.

{¶ 5} Following the hearing, the trial court named Mother residential parent and legal

custodian of the children. Father was allocated parenting time in accordance with the

standard parenting schedule. In addition, Mother retained possession of the house, and the

trial court found the fair market value was $118,510. Father now appeals the decision of the

trial court, raising three assignments of error for review. For ease of discussion, we will

address Father's assignments of error out of order.
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{¶ 6} Assignment of Error No. 2:

{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT DENIED DEFENDANT-APPELLANT'S SHARED PARENTING PLAN

WITHOUT TESTIMONY THAT PARENTS WERE UNABLE TO WORK TOGETHER OR A

FINDING AS TO WHY IT WAS IN THE CHILDREN'S BEST INTERESTS.

{¶ 8} In his second assignment of error, Father alleges the trial court erred by

designating Mother as the residential parent and legal custodian of their daughters rather

than granting his request for shared parenting. We disagree.

{¶ 9} R.C. 3109.04 governs the award of parental rights and responsibilities. In

making this determination, the primary concern is the best interest of the child. Albrecht v.

Albrecht, 12th Dist. Butler Nos. CA2014-12-240 and CA2014-12-245, 2015-Ohio-4916, ¶ 22.

{¶ 10} In order to determine the best interest of a child, R.C. 3109.04(F)(1) requires

the trial court to consider all relevant factors. Bristow v. Bristow, 12th Dist. Butler No.

CA2009-05-139, 2010-Ohio-3469, ¶ 8. These factors include, but are not limited to (1) the

wishes of the parents, (2) the child's interaction and interrelationship with his parents,

siblings, and other persons who may significantly affect the child's best interest, (3) the child's

adjustment to home, school and community, (4) the mental and physical health of all persons

involved, and (5) the likelihood that the caregiver would honor and facilitate visitation and

parenting time. Denier v. Carnes-Denier, 12th Dist. Warren No. CA2015-11-106, 2016-Ohio-

4998, ¶ 14.

{¶ 11} With regard to whether shared parenting is in the child's best interest, the court

must consider the additional factors set forth in R.C. 3109.04(F)(2). Id. at ¶ 15. These

factors include (1) the ability of the parents to cooperate and make decisions jointly, (2) the

ability of each parent to encourage the sharing of love, affection, and contact between the

child and the other parent, (3) any history or potential for abuse, (4) the geographic proximity
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of the parents to one another, (5) and the recommendation of the guardian ad litem. R.C.

3109.04(F)(2)(a)-(e).

{¶ 12} An appellate court reviews a trial court's custody determination for an abuse of

discretion. Gibson v. Gibson, 12th Dist. Clinton No. CA2016-01-002, 2016-Ohio-4996, ¶ 15.

An abuse of discretion implies that the court's attitude was unreasonable, arbitrary, or

unconscionable. Denier at ¶ 16. The discretion which a trial court enjoys in custody matters

"should be accorded the utmost respect, given the nature of the proceeding and the impact

the court's determination will have on the lives of the parties concerned." Gibson at ¶ 15.

{¶ 13} After a thorough review of the record, we find no abuse of discretion in the trial

court's decision designating Mother as the residential parent and legal custodian of the

children rather than granting Father's request for shared parenting. The record reflects that

the trial court considered all relevant factors in R.C. 3109.04(F)(1) and applied those factors

in making its decision designating Mother residential parent and legal custodian.

{¶ 14} The court heard testimony that Mother and Father have a strained relationship,

which is in part due to Father's excessive drinking. An alcohol dependency evaluation was

conducted on Father and concluded with a recommendation that Father attend outpatient

treatment for alcohol abuse. Though Father attended a few sessions, he admits that he has

not completed the program and stated that he only attended the evaluation in the hopes of

continuing his marriage.

{¶ 15} Mother testified that she has trouble communicating with Father and that

Father has engaged in physically abusive behavior. Mother alleged that Father had grabbed

her by the throat and became physical. The record reflects that there was a mutual

temporary restraining order between Mother and Father at the time of the final hearing. In

addition, during the final hearing, Father admitted to attaching a GPS tracking device on

Mother's vehicle while the parties were separated.
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{¶ 16} Although Father claims otherwise, we find the trial court's decision was not an

abuse of discretion. In addition to the testimony regarding Father's drinking and the parties'

inability to communicate, Mother testified that she has been the children's primary caregiver

since the separation and Father has had limited contact with the children. Accordingly,

having found no abuse of discretion in the trial court's decision, Father's second assignment

of error is overruled.

{¶ 17} Assignment of Error No. 1:

{¶ 18} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT VALUED THE MARITAL HOUSE AT $118,500.00 USING THE

BUTLER COUNTY AUDITOR'S APPRAISAL INSTEAD OF USING THE DEFENDANT-

APPELLANT'S RECENT OFFER TO PURCHASE THE HOUSE AT THE HIGHER PRICE OF

$140,000.00.

{¶ 19} In his first assignment of error, Father argues that the trial court erred when it

valued the parties' marital residence at $118,510. Father contends that his "offer" to

purchase the home for $140,000 is the more appropriate measure for the value of the house.

We find no merit to Father's argument.

{¶ 20} "A trial court has broad discretion in determining the equitable division of

property in a divorce proceeding." Williams v. Williams, 12th Dist. Warren No. CA2012-08-

074, 2013-Ohio-3318, ¶ 54. "Prior to making an equitable division of marital property, a trial

court must determine the value of marital assets." Dollries v. Dollries, 12th Dist. Butler Nos.

CA2012-08-167 and CA2012-11-234, 2014-Ohio-1883, ¶ 10. When valuing a marital asset,

the trial court is not required to use a particular valuation and is not precluded from using any

method. Sieber v. Sieber, 12th Dist. Butler Nos. CA2014-05-106 and CA2014-05-114, 2015-

Ohio-2315, ¶ 34. However, in determining the value of marital property, the trial court must

have evidence before it to support the figure that it establishes. Id. "An appellate court will
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not reverse a trial court's decision regarding what figures it uses to determine an equitable

division where the decision is supported by the manifest weight of the evidence." Dollries at

¶ 10.

{¶ 21} We find the trial court did not err by finding that the fair market value of the

marital residence was $118,510. The trial court heard credible evidence that the marital

residence was valued at $118,510 by the Butler County Auditor and Mother testified that she

believed that figure reflected the fair market value of the property. Though Father claims that

he offered to purchase, or would purchase the home, for $140,000, there is nothing to

suggest that this figure is more representative of the fair market value of the property than

that of Mother and the auditor.

{¶ 22} Additionally, there is no evidence to suggest that Father's offer is reasonable

or even possible under the circumstances. The testimony reflects that Father has not sought

financing for the home and he admits that he would need a year or "six months to a year" to

obtain financing for the home. In addition, there is evidence that Father also has substantial

credit card debt including maxed out credit cards and collection accounts. In short, Father's

claim that he would pay $140,000 for the home is not reflective of a sincere offer on the

home that would support an increased valuation. As a result, we find the trial court's decision

as to the valuation of the marital property is supported by the manifest weight of the

evidence. Father's first assignment of error is overruled.

{¶ 23} Assignment of Error No. 3:

{¶ 24} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT GRANTED POSSESSION OF THE MARITAL PROPERTY TO

PLAINTIFF-APPELLEE.

{¶ 25} In his third assignment of error, Father argues the trial court erred by awarding

Mother the marital residence. Father's argument is without merit.
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{¶ 26} As previously noted, a trial court has broad discretion when dividing marital

property. Williams at ¶ 54. The trial court will not be reversed absent an abuse of discretion.

Id.

{¶ 27} In dividing marital property, the court must consider R.C. 3105.171(F).

Pursuant to that provision, the trial court shall consider:

(1) The duration of the marriage;

(2) The assets and liabilities of the spouses;

(3) The desirability of awarding the family home, or the right to
reside in the family home for reasonable periods of time, to the
spouse with custody of the children of the marriage;

(4) The liquidity of the property to be distributed;

(5) The economic desirability of retaining intact an asset or an
interest in an asset;

(6) The tax consequences of the property division upon the
respective awards to be made to each spouse;

(7) The costs of sale, if it is necessary that an asset be sold to
effectuate an equitable distribution of property;

(8) Any division or disbursement of property made in a
separation agreement that was voluntarily entered into by the
spouses;

(9) Any retirement benefits of the spouses, excluding the social
security benefits of a spouse except as may be relevant for
purposes of dividing a public pension;

(10) Any other factor that the court expressly finds to be relevant
and equitable.

{¶ 28} We find the trial court did not err by awarding Mother possession of the marital

residence. In the present case, Mother was awarded custody of the children and was

currently residing in the marital residence with the children. Father had been living separately

in an apartment for some time. The record shows that it would not be in the children's best

interest to remove them from their environment. In addition, the record reveals that the
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property is encumbered by a mortgage and there is little equity in the home.

{¶ 29} The majority of Father's argument is again premised on the faulty argument

that because he is allegedly willing to offer more money for the property that he should be

awarded said property. However, as addressed above, Father's position lacks in both

credibility and sincerity. The trial court was not required to accept Father's claim as true. As

a result, we find the trial court did not abuse its discretion by awarding Mother possession of

the marital residence. Father's third assignment of error is overruled.

{¶ 30} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.

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