Arthur v. Arthur

• Decision Date: 22 October 1998
• Docket Number: No. 98CA0023., No. 97CA0071
• Citation: 720 NE 2d 176,130 Ohio App.3d 398
• Parties: ARTHUR, Appellant and Cross-Appellee, v. ARTHUR, Appellee and Cross-Appellant.
• Court: Ohio Court of Appeals

130 Ohio App.3d 398

720 NE 2d 176

ARTHUR, Appellant and Cross-Appellee, v. ARTHUR, Appellee and Cross-Appellant.

Nos. 97CACA0023.

Court of Appeals of Ohio, Fifth District, Fairfield County.

Decided October 22, 1998.

Gerald L. Stebelton, for appellant and cross-appellee.

Randy L. Happeney, for appellee and cross-appellant.

WILLIAM B. HOFFMAN, Judge.

Plaintiff-appellant and cross-appellee Cindy A. Arthur ("wife") appeals the October 16, 1997 judgment entry/decree of divorce of the Fairfield County Court of Common Pleas, Domestic Relations Division, granting her a divorce from defendant-appellee and cross-appellant Michael J. Arthur ("husband") and approving a shared parenting plan for the couple's four minor children. Husband appeals that decree as well as the March 31, 1998 judgment entry finding him in contempt of court.

STATEMENT OF THE FACTS AND CASE

Husband and wife were married in Vincennes, Indiana on August 15, 1981. Four children were born as issue of the marriage: Megan Jo (DOB 7/17/83), Eric M. (DOB 4/22/85), Jacob M. (DOB 11/12/87), and Mary K. (DOB 1/10/93).

Upon her graduation from high school in 1978, wife worked in a department store in the Vincennes, Indiana area. Following a brief marriage to another individual, wife met husband, who was working part-time in the same department store while attending Vincennes University. In 1983, husband completed an associate's degree in computer science. While husband attended school, wife supported the couple. After wife gave birth to their first child, Megan, in 1983, the couple decided wife would remain at home full-time.

In 1987, husband accepted a job offer in the Columbus, Ohio area. Around the same time, wife began regularly watching the television ministry of the World Harvest Church ("the Church"), which originates from Columbus. After the family moved to Ohio, they attended the Church. In November, 1987, husband accepted a position with the Church as the Director of Computer Operations.

The Church became the focal point of the family. Their lives centered around the Church, including worship, friendships, and activities. The children attended the World Harvest Christian Academy ("the Academy"), a church-affiliated school. The children's contacts outside the Church were limited.

In 1994, husband left his position with the Church to accept a position with Cap Gemini America, Inc. Prior to leaving his employment with the Church, husband began to disassociate himself from the institution and its members.

In December 1995, husband informed wife he desired a divorce. On or about December 24, 1995, husband moved out of the marital residence. On January 12, 1996, wife filed a complaint for divorce in the Fairfield County Court of Common Pleas, Domestic Relations Division.

Via an agreed magistrate's entry dated March 26, 1996, the trial court entered temporary orders for a shared-parenting arrangement. Pursuant to the temporary orders, wife was designated the residential parent and legal custodian of the four children for school purposes. Husband was granted possession of the children on weekends and for short weeknight visits, subject to timely notice. Throughout the proceedings, husband and wife contested the issues of custody and the children's enrollment at the Academy.

The matter proceeded to trial. At trial, Dr. John Mason, the court-appointed psychologist, reiterated the concerns he voiced in his report to the trial court regarding the children's attendance at the Academy, which, he opined, shielded them from the real world. Mason testified, while in wife's custody, the children's outside contacts were limited to church members. Due to the lack of cooperation between husband and wife, Mason recommended shared parenting in order to avoid the development of parental-alienation syndrome.

Mason met with the three oldest children on several occasions. During the initial visit, the children expressed a desire to stay with wife and continue their education at the Academy. Although the children expressed little interest in living with husband, they indicated their desire to visit him on a regular basis. When the children originally expressed these desires, they had not been visiting husband because of his living arrangements.¹ After visits with husband commenced, the three children told Mason they wanted to live with husband. The children reiterated this position over the course of their visits with Mason.

Mason testified that sports are paramount in the boys' lives. With husband, the boys became involved in organized, competitive sports leagues. When Megan originally saw Mason, she stated that she considered living with husband because she did not want to attend Bible College for two years before she started regular college. During her last meeting with Mason, Megan told him that wife informed her she could make the decision regarding her attendance at Bible College.

Regarding the children's continued enrollment at the Academy, Mason expressed his concerns regarding the cloistering aspect of the school and the limited social contact the children had outside of the Church environment. The testimony revealed that the Academy has below average class sizes, problems with staffing, teachers who lacked practical experience, and a lack of curriculum. The extracurricular activities available to the children were limited and included only noncompetitive activities. A substantial portion of the school day was devoted to bible studies. All of the text books used at the school had a religious emphasis.

Dr. Jerry A. Olsheski, Assistant Professor of Counselor Education at Ohio University, testified regarding the vocational evaluation he conducted of wife at husband's request. Dr. Olsheski testified that wife's current earning capacity was approximately $12,300 per year to $18,148 per year. Wife informed the doctor of her intent to pursue a vocational training program in medical assisting and/or medical office technologies at the Fairfield Career Center. According to Olsheski, if wife completed the medical assisting program, her median annual wage would be $17,940 per year. He noted that the median annual wage for an office supervisor would be $27,196 per year. Wife also informed the doctor that she investigated a two-year associate's degree program in either medical assisting or medical office technologies through the Ohio University-Lancaster Branch.

After hearing all the evidence, the trial court entered findings of fact and conclusions of law on August 12, 1997. On October 16, 1997, the trial court filed the judgment entry/decree of divorce. Pursuant to the divorce decree, wife was named the residential parent for school purposes of Megan and Mary, and husband was named the residential parent for school purposes of Jacob and Eric. The trial court ordered husband to pay $1,359.96 per month plus poundage as child support. The payments were made via payroll deductions. The trial court ordered husband to pay spousal support in the amount of $2,760.60 per month plus poundage, from September 1, 1997, until July 1, 1998. Commencing July 1, 1998, until the sale of the marital residence, the amount was reduced to $2,060.60 per month plus poundage. Following the sale of the marital residence and until June 30, 2000, the amount was further reduced to $1,200 per month plus poundage. On June 30, 2000, husband's spousal support obligation terminates. The trial court did not retain jurisdiction to modify the spousal support award.

It is from the judgment entry/decree of divorce that wife prosecutes this appeal, raising the following assignments of error "I. The trial court abused its discretion by separating the four children and designing the father as residential parent for the parties' two sons pursuant to defendant's shared parenting plan.

"II. The trial court abused its discretion in the amount and duration of spousal support, providing that it was not modifiable and in failing to retain jurisdiction over spousal support."

Husband cross-appeals, raising the following assignments of error:

"I. The trial court erred as a matter of law and abused its discretion in ordering withholding from the appellee's income which exceeded the maximum amount which could be withheld pursuant to Revised Code Section 3113.21(D) and 15 U.S.C. 1673(B).

"II. The trial court abused its discretion in ordering the appellee to pay combined child support and spousal support which exceeded 50% of the appellee/cross-appellant's net income.

"III. The trial court erred and abused its discretion in awarding attorney fees to the appellant in the additional amount of $7,500 when the defendant-appellee/cross/appellant had paid attorney fees and litigation expenses during the pendency of this cause in excess of $15,000.

"IV. The trial court erred in this cause as a matter of law in ruling upon the appellant's motion, filed after the notice of appeal was filed, wherein the court modified the judgment entry-decree of divorce.

"V. The trial court erred and abused its discretion in finding the appellee/cross-appellant in contempt of court. Furthermore, the court's finding that the appellee/cross-appellant was in contempt of court is erroneous as a matter of law. Finally, the trial court erred in failing to find the appellant/cross-appellee in contempt of court."

Any additional facts relevant to our discussion of the assignments of error shall be contained therein.

I

In her first assignment, wife maintains that the trial court abused its discretion in separating the four children by ordering a shared-parenting plan.

The standard of review of an appellate court of a trial court's determination in a custody proceeding is abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846, 849. 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...