Dayton, Ohio - Divorce lawyer represented Defendant-Appellant with appealing from a final judgment and decree of divorce.

Jacob and Andrea married in Dover, Delaware, on June 23, 2012. Both had

previously been married, and each had a daughter from the prior relationship. Together

they had a son, J.P., who was born in Delaware in March 2014. After Jacob separated

from the military in 2016, the family moved to Dayton, Ohio, and purchased a home on

Taylorsville Road. Andrea moved from the marital residence on July 2, 2018.

{¶ 3} The next month, Andrea filed a complaint for divorce; Jacob filed an answer

and counterclaim for divorce. Both parties sought custody of J.P. and requested

temporary child support. While their requests for a temporary custody order were

pending, Andrea denied her husband access to J.P.

{¶ 4} On December 5, 2018, after a hearing, a magistrate issued a decision finding

that it was J.P.'s best interest for Andrea to have parenting time from noon on

Wednesdays until 6:00 p.m. on Saturdays and for Jacob to have parenting time from 6:00

p.m. on Sundays until noon on Wednesdays. The parties would "alternate Saturday and

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will coordinate Saturday schedule to coincide with his/her Saturday work schedule.” The

decision ordered, however, that Jacob was to have J.P. from Saturdays at 6:00 p.m. to

Wednesdays at noon. The magistrate declined to issue a custody order in the hopes

that the absence of a custody order would prevent denial of access to the child. Based

on the parties' financial information, no child support or spousal support was ordered.

{¶ 5} The trial court adopted the magistrate's decision without objection from the

parties. During the pendency of the divorce, the parties conducted parenting time with

the alternating Saturday/Sunday schedule mentioned in the magistrate's decision. Tr.

56-57, 254.

{¶ 6} Final hearings on the complaint and counterclaim were held on September

29, 2020, and June 8, 2021. The parties stipulated to several items: the date of the

marriage; the date of separation, which would be used as the termination of marriage

date; their incompatibility; their residency in the county for at least six months prior to the

filing of the pleadings; Jacob would retain the marital residence on Taylorsville Road;

there were no retirement benefits at issue; neither party would receive spousal support

and the trial court would not retain continuing jurisdiction over that issue; Andrea would

return "gun logs” (itemized lists of the family's guns) to Jacob; each party would keep their

own bank accounts; and each party's income was $55,000 for purposes of calculating

child support. They indicated that there was no agreement on automobiles and firearms,

but all other personal property had been divided. In their pretrial statements, both parties

expressed a desire for sole custody of J.P. with a standard order of visitation for the other

parent.

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{¶ 7} The parties testified on their own behalf. In addition, Andrea offered the

testimony of her father and stepmother, and Jacob presented the testimony of a nextdoor neighbor, his stepfather, his girlfriend, and his step-grandfather (his stepfather's

stepfather). Andrea also called the court's family investigator as a witness. The

witnesses and exhibits focused on the ownership of numerous guns and automobiles,

items that Andrea had taken from the Taylorsville residence during the pendency of the

divorce action, the debt on Jacob's credit cards, Andrea's claiming J.P. as a dependent

for tax purposes during the separation, and parenting matters.

{¶ 8} On October 7, 2021, the trial court issued a decision addressing the disputed

matters, during which it detailed the parties' conflicting testimony on those issues. The

court awarded custody of J.P. to Andrea and granted Jacob parenting time generally in

accordance with the standard parenting time order. With respect to the credit cards, the

trial court ordered Jacob to be responsible for all of the credit card debt except for $1,500

that was used to pay for appliances for Andrea. The trial court declined to make an order

regarding the prior tax returns, stating that "[t]he court is not sure what remedy Jacob is

asking for regarding the fact that Andrea claimed the minor child on her tax returns in

2018 and 2019[.]” Decision as amended on Oct 28, 2021. The parties were to claim

J.P. as a tax dependency exemption on alternating years going forward. The trial court's

decision did not address the items that Andrea took from the marital residence.

{¶ 9} Counsel for Andrea was ordered to prepare a final judgment and decree of

divorce consistent with the court's decision and the parties' agreements. A final

judgment and decree of divorce was issued on November 16, 2021. Jacob appeals from

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the trial court's judgment, raising five assignments of error. We will address them in an

order that facilitates our analysis.

II. Property Division

{¶ 10} Jacob claims that the trial court erred in its division of marital property in

three respects. In his first assignment of error, he asserts that his wife engaged in

financial misconduct by taking marital property from the residence and that the trial court

erred in failing to compensate him for those items. The fourth assignment of error raises

that the trial court should have granted him credit for Andrea's claim of the dependent tax

exemption for each year during their period of separation. The fifth assignment of error

claims that the trial court erred in its allocation of marital debts, namely the debt on

Jacob's credit cards.

{¶ 11} Andrea asks that we overrule Jacob's challenges to the property distribution

as moot on the ground that he waived his right to appeal the division of property by

voluntarily satisfying that portion of the trial court's judgment. Alternatively, Andrea

disputes that any error occurred. Jacob has not filed a reply brief or otherwise responded

to Andrea's mootness argument.

A. Mootness

{¶ 12} Before addressing the merits of Jacob's first, fourth, and fifth assignments

of error, we must address whether the issues are now moot.

{¶ 13} "The role of courts is to decide adversarial legal cases and to issue

judgments that can be carried into effect.” Cyran v. Cyran, 152 Ohio St.3d 484, 2018-

Ohio-24, 97 N.E.3d 487, ¶ 9, citing Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d

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371 (1970); State v. Smith, 2d Dist. Montgomery No. 27981, 2019-Ohio-3592, ¶ 8.

Under the mootness doctrine, American courts will not decide cases where an actual legal

controversy no longer exists between the parties. Id., citing In re A.G., 139 Ohio St.3d

572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. "Issues are moot when they lack practical

significance and, instead, present academic or hypothetical questions.” Dibert v.

Carpenter, 2018-Ohio-1054, 98 N.E.3d 350, ¶ 30 (2d Dist.), citing State ex rel. Ford v.

Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396, ¶ 55.

{¶ 14} A court may consider extrinsic evidence from outside the record to

determine mootness. State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126,

2002-Ohio-7041, 781 N.E.2d 163, ¶ 8; Townsend v. Antioch Univ., 2d Dist. Greene No.

2008-CA-103, 2009-Ohio-2552, ¶ 8.

{¶ 15} As a general rule, the voluntary satisfaction of a judgment renders an appeal

from that judgment moot. Blodgett v. Blodgett, 49 Ohio St.3d 243, 245, 551 N.E.2d 1249

(1990). "Where the court rendering judgment has jurisdiction of the subject-matter of the

action and of the parties, and fraud has not intervened, and the judgment is voluntarily

paid and satisfied, such payment puts an end to the controversy, and takes away from

the defendant the right to appeal or prosecute error or even to move for vacation of

judgment.” Id., quoting Rauch v. Noble, 169 Ohio St. 314, 316, 159 N.E.2d 451 (1959),

quoting Lynch v. Lakewood City School Dist. Bd. of Edn., 116 Ohio St. 361, 156 N.E. 188

(1927), paragraph three of the syllabus. "The reason for the general rule is that reversing

a trial court judgment following full voluntary payment would not offer an appellant any

relief.” Dibert at ¶ 30, citing Poppa Builders, Inc. v. Campbell, 118 Ohio App.3d 251,

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253, 692 N.E.2d 647 (2d Dist.1997).

{¶ 16} An appellant's satisfaction of a judgment is not considered involuntary even

when it is made due to collection efforts (such as garnishment of wages), the appellant's

financial circumstances, or other economic considerations. Taylor v. Johnson, 2d Dist.

Montgomery No. 28242, 2019-Ohio-2132, ¶ 10, citing Blodgett and Poppa Builders.

(Other citations omitted.) In Blodgett, the Ohio Supreme Court held that the wife's

acceptance of the full amount of the marital award and her signing a satisfaction of

judgment terminated her appeal from the judgment and decree of divorce, despite her

claims that she felt compelled to accept the payments because she could not afford to

wait for the outcome of the appeal.

{¶ 17} We have stated, however, that "Blodgett does not stand for the proposition

that any payment toward the satisfaction of a judgment while an appeal is pending renders

moot the appeal or any specific issue therein.” Janis v. Janis, 2d Dist. Montgomery No.

23898, 2011-Ohio-3731, ¶ 28. In Janis, Mrs. Janis provided three checks to her husband

while his appeal from the judgment and decree of divorce was pending. Mrs. Janis

contended that two of the checks, which were cashed, represented the entire amount due

to Mr. Janis related to their limited partnership called Manna. Mr. Janis also received a

third check representing his share of the proceeds from the sale of a marital home; that

check was not cashed. Mrs. Janis argued that Mr. Janis's acceptance of payment for

the home and business assets rendered his appeal of those awards moot. We

disagreed, noting that "Mrs. Janis has cited no authority for her suggestion that certain

aspects of an appeal can be rendered moot by the actions of the parties without an

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agreement to that effect and without payment in full.” Id. at ¶ 28. Mrs. Janis further

argued that the judgment was substantially satisfied because Mr. Janis failed to return a

check that was written to him, because he retained access to the funds, although he did

not deposit or cash the check. We rejected the notion that "substantial satisfaction of a

judgment (rather than full satisfaction) can render an appeal moot, or that tendered

payment can constitute satisfaction.” Id. at ¶ 29.

{¶ 18} In this case, we have no evidence that Andrea accepted payment of the full

amount due to her and, consequently, that the monetary aspects of the final judgment

and decree of divorce have been satisfied. In support of her assertion that Jacob

voluntarily satisfied the judgment, Andrea has provided a copy of correspondence from

Jacob's attorney to her attorney, in which Jacob's counsel informed Andrea's counsel that

her client had "given me money orders totaling $2,029.00, which represents the monies

owed your client pursuant to the divorce decree. (See attached copies of the money

orders.) Also my client has provided me with the titles to the vehicles your client was

awarded. (Copies attached.)” Jacob's counsel asked Andrea's counsel whether he

wanted his runner to pick up the items or whether she should mail them.

{¶ 19} The parties have provided no information about what happened to the

money orders and titles after this correspondence. We are left to speculate how and

when they were delivered to Andrea's counsel (if they were delivered at all) and whether

the money orders were cashed or deposited by Andrea. The correspondence from

Jacob's counsel was insufficient to establish that Jacob satisfied the judgment.

Accordingly, Andrea has not established that the property division issues are moot.

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B. Standards for Division of Marital Property

{¶ 20} "When dividing married parties' assets and liabilities upon divorce, a court

must first determine what is marital property and what is not.” Bergman v. Bergman, 2d

Dist. Montgomery No. 25378, 2013-Ohio-715, ¶ 27. The trial court must classify specific

property as marital or separate, and where appropriate, must distribute separate property

to the owner. Id., citing R.C. 3105.171(B) and (D). The trial court's classification must

be supported by competent, credible evidence. Id., citing Mays v. Mays, 2d Dist. Miami

No. 2000-CA-54, 2001 WL 1219345, at *3 (Oct. 12, 2001); Umbaugh v. Stinson, 2d Dist.

Greene No. 2019-CA-62, 2020-Ohio-3299, ¶ 8.

{¶ 21} Courts have broad discretion on how to divide marital property. Jensen v.

Jensen, 2d Dist. Clark No. 2019-CA-29, 2019-Ohio-4703, ¶ 41; Wright v. Cramer, 2018-

Ohio-764, 107 N.E.3d 836, ¶ 11 (2d Dist.). However, when dividing marital property and

determining whether to make and the amount of any distributive award, the court must

consider all of the following factors:

(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

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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.

R.C. 3105.171(F).

{¶ 22} Debts, like assets, are considered property. Montgomery v. Montgomery,

2d Dist. Greene No. 2018-CA-16, 2019-Ohio-1803, ¶ 24. Consequently, orders

assigning debt to one party or another are part of the property division. Id., citing Arnett

v. Arnett, 2d Dist. Montgomery No. 20332, 2004-Ohio-5274, ¶ 8; Kraft v. Kraft, 2d Dist.

Montgomery No. 25982, 2014-Ohio-4852, ¶ 41 ("Since the court, pursuant to R.C.

3105.171(F)(2), must consider both the parties' assets and liabilities, 'an equitable

division of marital property necessarily implicates an equitable division of marital debt.' ”).

The party seeking to have debts classified as a separate (rather than marital) liability must

show "by a preponderance of the evidence, that such debt was the separate obligation of

the other spouse.” Montgomery at ¶ 34, quoting Brady v. Brady, 11th Dist. Portage No.

2007-P-0059, 2008-Ohio-1657, ¶ 38.

{¶ 23} When dividing marital property, the court begins with an equal division, but

it may divide the property unequally if it concludes that an equal division would be

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inequitable. Ulliman v. Ulliman, 2d Dist. Montgomery No. 22560, 2008-Ohio-3876, ¶ 28,

citing R.C. 3105.171(C)(1). We review property divisions in divorce proceedings for an

abuse of discretion. Umbaugh, 2d Dist. Greene No. 2019-CA-62, 2020-Ohio-3299, ¶ 7.

An abuse of discretion occurs when the trial court's decision is unreasonable, arbitrary,

or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

C. Items Removed from Marital Residence

{¶ 24} First, Jacob argues that Andrea engaged in financial misconduct by taking

guns, precious metals, and other items from the marital residence and that he should

have been compensated for the value of that property.

{¶ 25} It was undisputed that Andrea came back to the Taylorsville residence after

the parties separated and retrieved items from the home. According to Jacob, Andrea

took a television from the home in August 2015; he did not ask the court for an offset to

compensate him for its value. Also taken were "most all of everything that [J.P] had in

his room,” including clothing and toys. Andrea also reportedly collected all "female

items” not belonging to his daughter; those included items owned by Beverly Pacheco

Espinosa, Jacob's girlfriend.

{¶ 26} Jacob identified several guns that Andrea allegedly took: a Smith & Wesson

AR-15, valued at $2,800; a Springfield N-1A, valued at $6,000; a Governor, valued at

$625, and a Ruger 10/22 belonging to Jacob's daughter, valued at $250. Jacob testified

that each gun was purchased prior to marriage; none was listed in Jacob's gun book.

Jacob also stated that Andrea took his son's and Andrea's daughter's guns, which were

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bought during the marriage; Jacob did not want an offset for those guns.

{¶ 27} Jacob also testified about silver and gold that was taken when Andrea

returned to the home a second time. One item was a 100-ounce bar of silver that

belonged to him, but which they had used as collateral for a loan from his grandmother.

Jacob estimated the value of the bar to be between $1,800 and $2,000. Andrea also

removed "all of [J.P.s] silver” and all of Andrea's daughter's silver: ”[t]hey each had a gram

of gold, as well.” Tr. 241. Jacob elaborated that J.P. had 20 to 25 ounces of silver

valued at $400. Andrea also took an ounce of gold, which he estimated to be worth

$2,000 to $2,200, and "blue silver,” which he did not value. Jacob testified that he

preferred to have the guns back, but was asking for compensation for the value of the

items removed from the home.

{¶ 28} Andrea acknowledged that she took a television and her son's belongings

in August 2018. She also admitted to taking four or five guns, silver, and possibly gold

from the residence. Andrea testified that there were two bars of silver as well as some

ounces of silver that were divided among the family members. She did not know how

much silver she took, but she said that it "was what my children had,” plus one bar. Tr.

93. She elaborated that there were two bars of silver, but she had taken one. Andrea

sold the guns, silver, and gold and did not give any of the proceeds to Jacob. She denied

taking any of Pacheco Espinosa's belongings.

{¶ 29} The trial court's decision did not address any of the items that Andrea took

from the Taylorsville residence after she had moved out. The disputed silver and gold

was not mentioned. While the decision had a section that dealt with firearms, that

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section determined the disposition of the firearms listed on Defendant's Exhibit 4 and 5;

the firearms taken from the home by Andrea apparently were not included on those lists.

{¶ 30} In her appellate brief, Andrea recognizes that the trial court did not resolve

these disputed items, but she argues that Jacob's assignment of error nevertheless

should be overruled. She argues that the evidence clearly established that Pacheco

Espinosa's belongings were not marital property and, further, that Jacob's testimony

regarding the firearms and precious metals was self-serving, not supported with

documentary evidence, and was not "worthy of belief.” In essence, Andrea asks us to

find that Jacob is not entitled to compensation for any of the property that Andrea

allegedly, and to a large extent, admittedly, took.

{¶ 31} Andrea's argument is unpersuasive. It is the province of the trial court to

make credibility determinations, to decide which items constitute separate property, and

to equitably divide marital property. We cannot, as Andrea asks, place ourselves in the

role of the trial court. Nor can we conclude that the trial court acted within its discretion

in failing to make an award in Jacob's favor with respect to this property. We have held,

in a variety of circumstances, that it is an abuse of discretion for a trial court to fail to

exercise its discretion. This is so even when the failure to exercise discretion is

inadvertent, as may be the case here. See, e.g., Bank of Am. v. Litteral, 191 Ohio App.3d

303, 2010-Ohio-5884, 945 N.E.2d 1114, ¶ 24. On the record before us, there is no

indication that the trial court actually exercised its discretion in failing to address the items

taken from the marital home by Andrea during the separation. Accordingly, the matter

must be remanded for the trial court to make determinations as to whether and/or in what

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amount(s) Andrea took marital and separate property from the Taylorsville residence

during the pendency of the divorce and to make an appropriate disposition.

{¶ 32} Jacob's first assignment of error is sustained.

D. Tax Exemption

{¶ 33} Jacob next asserts that the trial court failed to grant him equitable credit for

Andrea's claiming J.P. as a dependent on her tax returns in 2018 and 2019.

{¶ 34} As noted by Andrea in reply, Jacob did not establish the value of the

dependent tax exemption. Jacob admitted that he did not file taxes for those years,

although he claimed he did not do so because he was waiting for the trial court to

determine who could claim J.P. as a dependent. Regardless of Jacob's motivation for

failing to file his tax returns, he did not provide the court with financial information about

how claiming J.P. as a dependent would have altered his tax obligations.

{¶ 35} Where a party fails to present credible evidence of the value of the disputed

property, a trial court does not abuse its discretion in failing to value or consider the

property. See Bradley v. Bradley, 8th Dist. Cuyahoga No. 109792, 2021-Ohio-2514,

¶ 111 (no abuse of discretion where husband did not provide credible evidence of value

of his assets, income, and liabilities); Pearlstein v. Pearlstein, 11th Dist. Geauga No.

2008-G-2837, 2009-Ohio-2191, ¶ 120 (no abuse of discretion in valuing business at $0

where no credible evidence was presented as to its value). In the absence of any

evidence regarding the value of the dependent tax exemption to Jacob in 2018 and 2019,

the trial court did not err in failing to consider it in making its property distribution.

{¶ 36} Jacob's fourth assignment of error is overruled.

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E. Credit Card Debt

{¶ 37} Third, Jacob contends that his credit cards were used to pay marital

expenses and, therefore, the debt on those cards should have been equitably divided.

{¶ 38} The parties testified about four credits cards: two issued by USAA and two

issued by Navy Federal Credit Union (NFCU). Andrea testified that she had her USAA

credit card and Jacob had his. She stated that she never used Jacob's cards, explaining

Jacob "always said it's his money. He does what he wants with it. I've never had any

contact or control over any of his money.” Tr. 43. Andrea reported that all of her money

went toward house payments, bills, and groceries, and Jacob's money went toward

"[w]hatever he wanted to spend it on.” Tr. 102. Andrea testified that she did all of the

grocery shopping and she paid for them with her pay check or child support money.

During the periods when Jacob was not working, they did not use credit cards to purchase

items for the family. Instead, Andrea worked extra hours (60-70 hours per week). Tr.

103. She could not think of any time when Jacob's credit card was used for household

purchases. Id.

{¶ 39} In contrast, Jacob testified that he believed the four credit cards all

represented marital debt. Tr. 242. According to Jacob's testimony, the balances on the

two USAA credit cards, as of the date of separation, were approximately $11,000 and

$15,000. Printed statements for those two cards showed balances of $14,484.77 (due

June 23, 2020) and $15,872.79 (due October 11, 2020), respectively. Def.'s Ex. K-1 &

K-2. The USAA card with approximately $14,000 due previously had been paid off

before the family moved back to Ohio using $10,000 from Jacob's grandmother. Tr. 245.

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The second USAA card was obtained after the family relocated to Ohio. Jacob testified

that both cards were used to pay bills, because the couple was not making quite enough

to cover all of their expenses. He elaborated that their cash went toward their house

payment, and their groceries, utilities, internet, gas, and the like were charged to the credit

cards. Tr. 246. Jacob stated that Andrea used the cards for grocery shopping and she

was aware that he was using the cards for household items and goods.

{¶ 40} Jacob indicated that the two Navy Federal Credit Union cards also were

obtained during the marriage, one before the move back to Ohio and the second in 2017.

The cards originally were intended to be used for balance transfers from the USAA cards,

because NFCU balance transfers did not accrue interest for a year. Both cards were in

Jacob's name only, but Andrea was aware Jacob was using the cards. He stated that

Andrea also used both cards for groceries and to pay bills. Jacob offered statements for

the two NFCU cards from September 2018, both of which had balances of roughly

$12,000. Def.'s Ex. L-1 & L-2. He testified that, on the date of separation, one card had

a balance closer to $10,000 and the other was closer to $15,000. Tr. 249.

{¶ 41} Jacob testified that he used credit cards to purchase a refrigerator, stove,

and washer and dryer for Andrea when she moved out, at an approximate cost of $1,500.

Andrea agreed that Jacob bought her appliances, although she testified that he had used

their income tax money. Tr. 86.

{¶ 42} Jacob testified that all four cards have gone to collection and are no longer

open. Tr. 248. None of the offered credit card statements showed purchases made.

{¶ 43} In allocating all of the credit card debt (minus $1,500 for the refrigerator,

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stove, and washer and dryer) to Jacob, the trial found that Andrea's testimony was

credible. It specifically found that "Andrea was unaware of the credit cards and that

Jacob has failed to demonstrate that the balances on the credit cards were for marital

purchases.”

{¶ 44} On this record, we cannot conclude that the trial court abused its discretion

in ordering Jacob to be responsible for the credit cards in his name, with the exception of

the $1,500 for Andrea's appliances. Although debts incurred during the marriage are

presumed to be marital, the presumption is rebuttable. In this case, Andrea testified that

she paid all of the household expenses, such as housing, groceries, and other bills, and

that Jacob used his credit cards for his own purposes and not for household expenses.

Jacob disputed Andrea's assertion, but he did not offer any documentary evidence to

support his claim that the credit cards were used for marital purposes. Faced simply with

conflicting testimony, the trial court credited Andrea's version of events. We will not

second-guess its credibility determination. The division of the parties' debt was

supported by the evidence, and the trial court did not act unreasonably in allocating the

credit card debt to Jacob exclusively.

{¶ 45} Jacob's fifth assignment of error is overruled.

III. Child Custody

{¶ 46} In his third assignment of error, Jacob contends that the trial court's decision

to name Andrea as the residential and custodial parent was against the manifest weight

of the evidence.

{¶ 47} Upon satisfactory proof of the causes of divorce, the trial court must "make

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an order for the disposition, care, and maintenance of the children of the marriage, as is

in their best interests, and in accordance with [R.C. 3109.04.]” R.C. 3105.21(A); see also

R.C. 3109.04(A). "The court has two choices in this regard – either ordering shared

parenting or giving residential and legal custody to one parent.” Sivertsen-Kuhn v. Kuhn,

2d Dist. Greene No. 2019-CA-17, 2019-Ohio-3525, ¶ 9. However, if neither parent files

a pleading or motion in accordance with R.C. 3109.04(G) requesting the court to grant

both parents shared parental rights and responsibilities for care of the children, the court

"shall allocate the parental rights and responsibilities for the care of the children primarily

to one of the parents, designate that parent as the residential parent and the legal

custodian of the child, and divide between the parents the other rights and responsibilities

for the care of the children, including, but not limited to, the responsibility to provide

support for the children and the right of the parent who is not the residential parent to

have continuing contact with the children.” R.C. 3109.04(A)(1); Bowling v. Bowling, 2d

Dist. Greene No. 2014-CA-53, 2015-Ohio-2780, ¶ 9.

{¶ 48} In this case, Jacob expressed a preference for shared parenting and

continuation of equal parenting time at the final hearings; Andrea testified that she did not

want shared parenting. Neither had requested shared parenting in their pleadings or any

pretrial motion, nor was a shared parenting plan submitted to the court. Under these

circumstances, the trial court was required to allocate residential and legal custody of J.P.

primarily to one parent.

{¶ 49} When allocating parental rights and responsibilities, the trial court must

consider all relevant factors in determining the best interest of a child, including, but not

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limited to:

(a) The wishes of the child's parents regarding the child's care;

(b) If the court has interviewed the child in chambers * * *, 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 parent pursuant to a child

support order under which that parent is an obligor;

(h) * * * [W]hether 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; * * *

(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

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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.

R.C. 3109.04(F)(1); see also Portis-Phillips v. Phillips, 2d Dist. Clark No. 2016-CA-34,

2016-Ohio-7803, ¶ 19.

{¶ 50} The trial court is not required to discuss the factors in R.C. 3109.04

individually when making its best-interest determination. See Palichat v. Palichat, 2019-

Ohio-1379, 135 N.E.3d 389, ¶ 28 (2d Dist.). Rather, "[t]he critical issue is whether the

record supports the trial court's conclusions and whether it explained its best-interest

determination sufficiently. Id., citing Hutchinson v. Hutchinson, 2d Dist. Montgomery No.

26221, 2014-Ohio-4604, ¶ 33-36.

{¶ 51} A trial court enjoys broad discretion when determining the appropriate

allocation of parental rights and responsibilities. Miller v. Miller, 37 Ohio St.3d 71, 74,

523 N.E.2d 846 (1988); Montei v. Montei, 2d Dist. Clark No. 2013 CA 24, 2013-Ohio5343, ¶ 28. "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.” Id. Absent an

abuse of that discretion, a reviewing court will affirm the trial court's custody

determination. Id.; Montei at ¶ 28.

{¶ 52} The trial court heard extensive testimony regarding the statutory factors

relevant to the custody determination. Both parties testified and presented additional

witnesses and exhibits on their behalf. Cris Olmstead, the court's family investigator,

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also testified, and her report was offered into evidence.

{¶ 53} According to the evidence at the hearings, Andrea is a licensed practical

nurse (LPN), who passed the NCLEX exam in February 2020. She was employed at the

time of the hearings at Bethany Lutheran Village in Kettering, Ohio. Andrea had entered

the United States Coast Guard after high school and received a general discharge

because they did not believe she was suited for the military. She was married for two

years after leaving the Coast Guard and had custody of her daughter, Dixie, from that

relationship. In June 2021, Dixie was 10 years old. Andrea stated that she has a good

relationship with her former husband and his wife, who live in Virginia.

{¶ 54} Jacob was in the military when he and Andrea married. From

approximately July 2014 to January 2015, Jacob was deployed to Qatar, and Andrea took

care of their three children. Jacob separated from the military in 2016, and the family

moved to Ohio. Jacob had periods of unemployment, and he worked for a time at a gun

shop, the postal service, and Wal-Mart. At the time of the June 2021 hearing, Jacob had

been employed as a peace officer at Wright Patterson Air Force Base for two years.

Jacob met Pacheco Espinosa at Wal-Mart in November 2017, and they had been in a

committed relationship throughout the parties' separation. Jacob had custody of his

daughter from his first marriage; in June 2021, she was 13 years old.

{¶ 55} At the time of the June 8, 2021 hearing, J.P. was seven years old and had

finished first grade. He and his sister, Dixie (Andrea's daughter), had a good

relationship, and Andrea testified that her daughter and Jacob's daughter played together.

Susan Fennell, Andrea's stepmother, testified that Jacob's daughter considered Andrea

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to be her mother and Andrea had thrown birthday parties for all the children. Jacob

testified, however, that Andrea and his daughter had not had a good relationship since

before the separation.

{¶ 56} Andrea testified that she was the primary caregiver for the children, and she

took them to doctor and dentist appointments. Andrea's father and stepmother

described Andrea as a very caring mother who wanted the best for her children. Susan

Fennell further stated that the children were well-behaved with Andrea. However, Dodd

Radar, Jacob's stepfather, testified that J.P. was "wild” with Andrea and that Andrea was

not a "great parent.” Vaugh, Jacob's step-grandfather, similarly stated that the children

did not obey Andrea as much as they should. Vaugh and Radar both testified that J.P.

behaved around Jacob.

{¶ 57} Susan Fennell stated that she had seen Jacob with J.P. and Jacob treated

him "rough.” Susan had seen Jacob hit all of the children in the back of the head, thinking

it was funny. She described his behavior as "mean rough,” not "playful rough.” In

contrast, several witness – Robert Seibert, Jacob's next-door neighbor; Vaugh; Radar;

and Pacheco Espinosa – testified that they had seen Jacob and J.P. playing football,

playing board games, working on cars, and watching television together. Seibert never

saw Jacob be mean to J.P. Radar also testified that Jacob engaged in horseplay with

J.P., not mean behavior, and Pacheco Espinosa said that J.P. followed Jacob around and

was not afraid of him.

{¶ 58} Andrea described an incident when Jacob shot Dixie with an airsoft gun

because she reportedly had not been getting ready for school fast enough. Children

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services was contacted about the incident, and after Jacob threatened Dixie, the family

agreed to lie to the investigator, saying that they had been playing a game. Andrea

testified that she had had multiple conversations with Jacob about his shooting airsoft

guns at the children.

{¶ 59} Andrea took items from the marital residence after the parties separated.

Jacob was not there, but Pacheco Espinosa was at the home when Andrea arrived.

Pacheco Espinosa testified that, when Andrea saw her, Andrea started insulting her,

calling her names, and acted aggressively. When Andrea called the police, John Pruitt

came and took Pacheco Espinosa to his house. Pacheco Espinosa listed her belongings

that Andrea had taken from the Taylorsville house.

{¶ 60} Andrea had a three-bedroom home with a yard, and J.P. walked to school.

He had friends from school and played with people he knew at the playground. Jacob

lived on a busier road, but he had five acres. Seibert testified that J.P. came over to his

home and swam with his grandchildren. He described J.P. as polite and well-behaved.

Seibert stated that there were a couple of other neighbors with children around J.P.'s age.

{¶ 61} J.P. had attended preschool and was in elementary school when the final

hearings occurred. J.P. had an individualized education plan (IEP) due to a speech

impairment, and he received speech therapy through the school. During the Covid-19

pandemic, J.P. received homeschooling (remote learning). Andrea stated that she had

frequent communication with J.P.'s teachers and worked with him on his schoolwork.

J.P. was behind and needed additional help. According to Andrea, Jacob had minimal

contact with J.P.'s teachers and had never been to speech meetings. Jacob testified,

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however, that he had participated in parent-teacher conferences.

{¶ 62} Andrea testified that when J.P. is with her, she works with him and he does

well. Andrea expressed concern about the assistance J.P. receives at Jacob's house.

She stated that it appeared that Jacob's daughter was doing some of J.P.'s schoolwork

and, on Wednesdays when she gets J.P., Andrea finds that J.P.'s work either is not done

at all or is done incorrectly because he does not have adequate help.

{¶ 63} Jacob denied that he or his daughter was doing J.P.'s schoolwork for him,

although both helped him with his schooling. Radar confirmed that he had seen Jacob

helping J.P. with his school work, and Pacheco Espinosa also assisted J.P. with his

schoolwork. Pacheco Espinosa indicated that J.P. could not read or write and

expressed the opinion that it would be best for J.P. to be in school with teachers, not

switching back and forth between people with different styles and no teaching experience.

{¶ 64} Andrea had made many unilateral decisions about J.P. Jacob expressed

his disagreement with Andrea's decisions to remove J.P. from preschool and later from

school. Jacob said Andrea had removed J.P. from preschool in reaction to a children

services complaint that she had kicked J.P. in the buttocks and called him a name.

Andrea stated that when she tried to have a conversation with Jacob about what was best

for J.P., Jacob took a contrary position. Andrea expressed that she would like to make

all of the major decisions regarding J.P.

{¶ 65} Andrea testified that J.P. gets upset whenever he has to go to Jacob's

house. When he returns, he has trouble sleeping through the night and comes to

Andrea. Jacob testified that Andrea got J.P. worked up with the exchanges, but J.P.

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settled down by the time they were a block or so away. At some point, Andrea

unilaterally changed the drop-off location from Hardee's to the police station. The parties

provided different versions as to what occurred during the exchange preceding the

change.

{¶ 66} Andrea testified that she took antidepressant medications for approximately

four weeks after Jacob returned from his deployment. She was not taking any

medications at the time of the hearing. Jacob was taking an antidepressant and

medication for anxiety. He stated that his depression and anxiety did not affect his ability

to work or parent his children.

{¶ 67} Andrea testified that she would foster a relationship between Jacob and

J.P., saying "I've never stopped it.” She indicated that Jacob knew that he could call J.P.

every night at 6:00 p.m., but he never did. Andrea admitted that she had kept J.P. from

Jacob for six months because she had been afraid that Jacob would not give J.P. back

to her; she also did not provide Jacob her phone number. Andrea indicated that she had

allowed Jacob's family to see J.P. and she had allowed Jacob to see J.P. once the court

issued a custody order. Andrea stated that she would not deny Jacob access again.

Jacob said that Andrea had rarely been flexible with him regarding parenting time, and

there had been times when she had been late dropping him off.

{¶ 68} Jacob worked Wednesday through Saturday from 4:30 a.m. to 2:30 p.m.,

but he was normally home by 1:00 p.m. Andrea worked full-time but arranged her work

schedule so that she was not working when she had J.P.

{¶ 69} Andrea testified that she planned to move out-of-state as a long-term goal.

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She hoped to move in approximately three years but wanted to become a registered nurse

(RN) first. Jacob testified that she took J.P. out-of-state for spring break, contrary to

court order.

{¶ 70} Several witnesses testified regarding the number of guns in the Taylorsville

home and how they were secured. Jacob told the family investigator, Olmstead, that he

had over 100 guns, many of which he had inherited from his grandfather. Jacob's gun

log with receipts listed 24 guns, and his gun log without receipts listed 49 guns. Sean

Fennell stated that guns were "everywhere” in the home: a gun was at the front door in a

holster, a loaded revolver was on top of the refrigerator, and semi-automatic weapons

were in the bedroom. Susan Fennell had also seen guns lying around the Taylorsville

home, including one in a holster by the front door and another on the refrigerator. Radar

testified that Jacob had two large gun safes in the basement, and most of the guns were

stored there, as well as ammunition. Radar had seen about four guns not in a gun safe.

Pacheco Espinosa further indicated that there were guns in the house, but she had no

concerns about where the guns were. Jacob testified that all of the guns were in a gun

safe at the time of the hearing and that he had taught the children about firearm safety.

{¶ 71} Andrea testified that she had thought the guns were dangerous for the

children, but she had not been brave enough to leave. She had seen Jacob handle guns

recklessly, and he had shot guns outside of the home's back door and windows. Andrea

described an incident where Jacob had twirled a revolver on his finger and it fired close

to Dixie. In contrast, Seibert testified that Jacob had a gun range and was cautious when

he was shooting. Jacob testified that Andrea had never expressed any concern about

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the guns when they were together.

{¶ 72} Andrea expressed concern that Jacob drank two to three bottles of whiskey

per week, whereas she drank alcohol occasionally. Jacob agreed that he drank

excessively between 2015 and 2018, but stated that, since the separation, he has

reduced his drinking and drank socially. Pacheco Espinosa last saw Jacob drink one

glass.

{¶ 73} In May 2019, Olmstead interviewed Andrea, Jacob, and Pacheco Espinosa

and conducted paternal and maternal family sessions, which involved meeting with each

parent and that parents' children as a group. Pacheco Espinosa participated in a portion

of Jacob's family session. Olmstead also conducted home investigations.

{¶ 74} Olmstead completed her 18-page report on June 10, 2019. At that time,

she recommended shared parenting with Andrea's residence designated for school

purposes or, alternatively, that Andrea be named the residential and custodial parent.

Olmstead suggested keeping the parenting time schedule that the court had imposed

during the pendency of the case and provided additional recommendations regarding

mental health treatment (Jacob maintain compliance with his treatment and Andrea obtain

a mental health assessment), refraining from the consumption of alcohol and drugs while

with J.P., not using corporal punishment, securing the firearms, and not making

derogatory comments about the other parent, significant others, and other family

members.

{¶ 75} At the final hearings, Andrea expressed a desire for sole custody of J.P.

Jacob wanted a shared parenting arrangement with him as the residential parent. He

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wanted to maintain a similar parenting time with J.P. as their temporary arrangement,

although modified to allow for a fuller day together on the weekend day. The trial court

interviewed J.P. on June 28, 2021, approximately three weeks after the second hearing.

The court's decision did not disclose J.P.'s wishes and concerns.

{¶ 76} In its October 7, 2021 ruling (as modified on October 14 and 28, 2021), the

trial court designated Andrea as J.P.'s residential parent and legal custodian. It found

that Andrea had been the children's primary caretaker prior to the divorce and that Andrea

had "been the parent who has been much more involved in [J.P.'s] education and given

that [he] has some special needs, it is beneficial that Andrea continue in this role.” The

court expressed concern that Jacob kept loaded guns in the house when J.P. was present

and about Jacob's alcohol consumption. The trial court noted that Andrea had denied

parenting time to Jacob in the past. It admonished her for this behavior and advised her

that Jacob must be provided all of his parenting time and that she must be flexible in

providing parenting time.

{¶ 77} On appeal, Jacob argues that the trial court "lost its way” in awarding

custody of J.P. to Andrea. He describes Andrea as a permissive parent who has

demonstrated an inability to control J.P.'s behavior. Jacob states that Andrea has

engaged in excessively turbulent, volatile behavior in public and in private, including when

she withdrew J.P. from preschool. He notes that Andrea did not follow Olmstead's

recommendation that she receive a mental health assessment. Jacob emphasizes that

Andrea withheld parenting time for approximately six months, made unilateral decisions

regarding J.P., removed items from the marital home, has refused to communicate with

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him, and has expressed a long-term goal of relocating out-of-state. He further argues,

in contrast, that he engages in activities with J.P. and disciplines him appropriately, that

J.P. has friends in his neighborhood, and that he is more likely to honor and facilitate

visitation. Jacob stated that his six-month deployment should not have affected the

custody determination.

{¶ 78} The trial court was presented with substantial testimony about the issues

that Jacob raises. Both parties are bonded to J.P., and J.P. appears to have loving

relationships with his parents, siblings, and extended relatives. J.P. has friends near

both parents' homes. Both parents engage in appropriate activities with him. Although

Jacob's disciplinary style is more strict than Andrea's, the trial court could have

reasonably concluded that Andrea was not overly permissive. Jacob points out that

Andrea engaged in volatile behavior, but the trial court heard evidence that Jacob also

engaged in inappropriate behavior at times. Jacob contends that the trial court ignored

the fact that Andrea refused to communicate with him, but Andrea similarly testified that

Jacob would not communicate meaningfully with her and would take contrary positions

as a matter of course.

{¶ 79} Andrea did not obtain a mental health assessment, but Olmstead indicated

that she merely provided recommendations to the court. Nevertheless, the court heard

testimony that Andrea had previously taken an antidepressant and that Jacob was then

receiving treatment for depression and anxiety. Jacob discussed the medications he

was taking, and the court also had extensive medical records for Jacob from the

Department of Veterans Affairs to review.

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{¶ 80} The trial court's decision reflects that the court found most significant the

facts that Andrea was the children's primary caregiver prior to the divorce, J.P.'s

academic needs, the presence of guns in Jacob's home, and his alcohol consumption.

Jacob was deployed for six months while the parties still lived in Delaware, and there was

no suggestion that his deployment significantly affected the court's determination.

Notably, the court found that Andrea was much more involved in J.P.'s education, and

the parties agreed that J.P. was behind academically and needed additional educational

support, as well as speech therapy for his speech impediment. The trial court reasonably

concluded that it would be beneficial to J.P. for Andrea to continue providing educational

support as the residential and custodial parent.

{¶ 81} The court expressed concern that Jacob kept loaded guns in the home.

That concern was not unreasonable, particularly given the court's skepticism that Jacob

was able to moderate his excessive drinking without outside assistance.

{¶ 82} Andrea acknowledged that she had denied Jacob access to J.P. prior to the

issuance of a parenting schedule and that she intended to move out-of-state in a few

years. The court gave due consideration to the fact that Andrea had previously denied

Jacob parenting time, admonished her for this behavior, and advised her that Jacob must

get all the parenting time that he was accorded and that she must be flexible in providing

parenting time. While Jacob apparently believes that the trial court should have given

Andrea's actions more weight, we cannot conclude that the trial court abused its

discretion in failing to weigh that fact more heavily in Jacob's favor. Although not without

some issues, the parties have successfully provided each other with their scheduled

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parenting time since the court issued a parenting time order.

{¶ 83} Based upon our review of the record, we conclude that the trial court did not

abuse its discretion in designating Andrea as the residential and custodial parent. The

third assignment of error is overruled.

IV. Parenting Time

{¶ 84} In his second assignment of error, Jacob claims that the trial court lost its

way in decreasing his parenting time. In essence, he contends that the trial court should

have continued the week-to-week schedule that was in effect while the divorce case was

pending.

{¶ 85} R.C. 3109.051 governs parenting time of non-residential parents. See

Schwenn v. Schwenn, 2d Dist. Greene No. 2017-CA-48, 2018-Ohio-2755, ¶ 12. In

divorce proceedings involving a child where shared parenting is not ordered, the statute

requires the trial court to make "a just and reasonable order or decree permitting each

parent who is not the residential parent to have parenting time with the child at the time

and under the conditions that the court directs * * *.” R.C. 3109.051(A). R.C.

3109.051(D) directs the trial court to consider 15 specific statutory factors, plus any other

factor in the child's best interest, in determining whether to grant parenting time, in

establishing a specific parenting time schedule, and in determining other parenting time

matters. These factors include the child's relationships with parents and siblings; the

geographical locations of the parents' residences; the child's and parents' available time;

the child's age; the child's adjustment to home, school, and community; the health and

safety of the child; the amount of time the child will spend with siblings; and the mental

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and physical health of all concerned. Shoenfelt v. Shoenfelt, 2d Dist. Montgomery No.

23497, 2009-Ohio-6594, ¶ 8.

{¶ 86} Parenting time is a matter entrusted to the discretion of the trial court.

Schwenn at ¶ 14. Accordingly, we review the trial court's parenting time decision for an

abuse of that discretion. Id.

{¶ 87} During the pendency of the divorce, the parties had equal parenting time.

Jacob had J.P. from either Saturday or Sunday at 6:00 p.m. (alternating weeks) until noon

on Wednesdays, and Andrea had him from noon on Wednesdays until 6:00 p.m. on either

Saturday or Sunday. Jacob asked the trial court to modify the parenting schedule so that

he could pick up J.P. earlier in the day on Saturday/Sunday and drop him off on

Wednesdays after school.

{¶ 88} Andrea did not like the temporary visitation schedule, stating that "[w]e

never get a full weekend.” Tr. 57. Andrea also emphasized that J.P. was behind

academically and "needs consistency.” She explained that his experiences with her and

with Jacob were too different, and that splitting the school week and bouncing back and

forth between houses was too much for him. Andrea also stated that J.P. complains that

he is never home long before he leaves again. Andrea specifically testified that she did

not want shared parenting, that she did not think it was right for J.P., and that he needed

consistency.

{¶ 89} The trial court ordered that Jacob have parenting time every other weekend

from Saturday at 6:00 p.m. until Tuesday at 6:00 p.m. All other parenting time was to be

consistent with the court's standard order of parenting time. We note that the standard

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order of parenting time provides for summer parenting time in alternating one week

increments during summer vacation.

{¶ 90} Given the trial court's findings regarding parental rights and responsibilities,

we find no abuse of the discretion in the trial court's parenting time order. The trial court

expressed that Andrea was more involved in J.P.'s education and that it was beneficial

for Andrea to continue in that role, particularly given J.P.'s special needs. Andrea had

emphasized during her testimony the need for consistency during the school week and

for J.P. not to have to transition between households as frequently. The trial court's

order accomplished those objectives.

{¶ 91} Jacob's second assignment of error is overruled.

The trial court’s judgment will be affirmed in part and reversed in part, and

the matter will be remanded for further proceedings consistent with the opinion