David Z. Winters v. Nancy J. Winters, 94-LW-2396

• Decision Date: 24 February 1994
• Docket Number: 94-LW-2396,2112
• Parties: DAVID Z. WINTERS, Plaintiff-Appellant/Cross-Appellee v. NANCY J. WINTERS, Defendant-Appellee/Cross-Appellant CASE
• Court: Ohio Court of Appeals

DAVID Z. WINTERS Plaintiff-Appellant/Cross-Appellee v. NANCY J. WINTERS Defendant-Appellee/Cross-Appellant

No. 2112.

94-LW-2396 (4th)

Court of Appeals of Ohio, Fourth District Scioto

February 24, 1994

COUNSEL FOR APPELLANT:^[1] Richard F. Swope, 6504 East Main Street, Reynoldsbuyg, Ohio 43068.

COUNSEL FOR APPELLEE:^[2] Catherine S. Heid, 116 Washington Blvd., W. Portsmouth, Ohio 45663.

DECISION

ABELE J.

This is an appeal from a Scioto County Common Pleas Court judgment granting David Z. Winters, plaintiff below and appellant and cross-appellee herein (hereinafter appellant), and Nancy J Winters, defendant below and appellee and cross-appellant herein (hereinafter appellee), a divorce on grounds of incompatibility. The court designated appellee as the residential parent of the parties' two minor children, born in 1983 and 1984. The court ordered appellant to pay $484.21 plus poundage per month per child. The court further ordered appellant to pay $500 plus poundage per month spousal support for five years or until either party dies, appellee remarries, or appellee cohabits with a person of the opposite sex.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING CUSTODY (RESIDENTIAL PARENT STATUS) TO THE DEFENDANT-APPELLEE."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ADOPTING THE REFEREE'S REPORT, WHICH ERRONEOUSLY APPLIES THE PRIMARY CAREGIVER AND TENDER YEARS DOCTRINE AS CRUCIAL FACTORS IN DESIGNATING DEFENDANT-APPELLEE RESIDENTIAL PARENT."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ADOPTING THE REFEREE'S FINDINGS OF FACT RELATING TO CRUCIAL FACTS UTILIZED TO RECOMMEND THAT DEFENDANT-APPELLEE BE DESIGNATED RESIDENTIAL PARENT, WHICH ARE NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT DISCLOSING AND SETTING FORTH THE WISHES AND DESIRES OF THE CHILDREN AS WELL AS INFORMATION CONCERNING THEIR CARE WHICH COULD HAVE BEEN REBUTTED OR ARGUED AT THE END OF THE TRIAL."

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN AWARDING DEFENDANT-APPELLEE SPOUSAL SUPPORT FOR A PERIOD OF FIVE YEARS."

SIXTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FAILING TO RULE ON THE MOTION FOR AN EQUITABLE DIVISION OF THE COST OF THE TRANSCRIPT FILED BY THE PARTIES FOR PURPOSES OF OBJECTIONS."

SEVENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT ADJUSTING LOCAL RULE 20 COMPANIONSHIP SCHEDULE TO PROVIDE ALTERNATIVE WEEKEND VISITATION AND OTHER PROVISIONS WHEN BOTH PARTIES AGREED TO SUCH MODIFICATIONS."

EIGHTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO RULE ON PLAINTIFF-APPELLANT'S MOTION TO REQUIRE DEFENDANT TO PAY GUIDELINE ORDER OF SUPPORT AND IN NOT TERMINATING SPOUSAL SUPPORT."

NINTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT SETTING OFF THE PLAINTIFF-APPELLANT'S SEPARATE PROPERTY AS REQUIRED BY SECTION 3105.171(D), REVISED CODE OR MAKING A FINDING AS TO WHY THIS WAS NOT DONE."

TENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT ENTERING AN ORDER AWARDING PLAINTIFF-APPELLANT THE CHILDREN FOR FEDERAL TAX EXEMPTION PURPOSES."

ELEVENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ADOPTING AND APPROVING HIS REFEREE'S REPORT AND RECOMMENDATION REGARDING CUSTODY WHEN HE DID NOT UNSEAL AND CONSIDER THE INTERVIEW OF THE TWO MINOR CHILDREN."

Appellee filed a notice of cross-appeal. Appellee assigns the following errors:

FIRST CROSS-ASSIGNMENT OF ERROR:

"THE COURT'S DETERMINATION OF THE VALUE OF THE PLAINTIFF'S PENSION PLAN IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

SECOND CROSS-ASSIGNMENT OF ERROR:

"THE COURT'S EXCLUSION FROM DISTRIBUTION, OF THE $30,000.00 CASH IN MR. WINTER'S SOLE CONTROL IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW."

THIRD CROSS-ASSIGNMENT OF ERROR:

"PLAINTIFF WAS NOT ENTITLED TO A SETOFF OR CREDIT FOR $3,292.00 AS HIS SEPARATE PROPERTY, PURSUANT TO R.C. 3105.171(A)(6)(b)."

FOURTH CROSS-ASSIGNMENT OF ERROR:

"THE EQUITY IN THE MARITAL RESIDENCE WAS NOT DISTRIBUTED EQUALLY TO THE PARTIES AND THE COURT'S DISTRIBUTION FAILED TO ACCOMPLISH ANY ACTUAL AWARD OR DISTRIBUTION TO MRS. WINTERS OF HER SHARE OF THE EQUITY IN THE RESIDENCE."

FIFTH CROSS-ASSIGNMENT OF ERROR:

"THE COURT FAILED TO ORDER THAT THE ARREARS IN ALIMONY, $2,865.37, BE WAGE WITHHELD UNTIL PAID IN FULL."

The parties married on November 27, 1982 near Toledo, Ohio, when appellee was twenty years old and appellant was thirty-five yearn old. Their daughter, Megan, was born on May 31, 1983 and their son, Matthew, was born on September 29, 1984.

When appellant accepted an administrative position with Shawnee State University in 1989, the family moved to the Portsmouth, Ohio area, leaving behind many extended family members in the Toledo, Ohio area. On or about August 13, 1990, appellee and several friends moved nearly all of the parties' household goods back to Toledo, Ohio without appellant's knowledge or consent. Appellee took the children and $6,500 from the parties' bank accounts back to Toledo with her.On August 24, 1990, appellant filed the instant action for divorce. On that same day, the court granted appellant's motion for temporary custody of the children. The children resided with appellant and traveled to visit appellee every other weekend during the pendency of this action.

The court held a final hearing on January 22nd and 23rd, and on May 19th, 20th, and 21st, 1993. Appellant presented witnesses who testified he is a good parent. Appellant testified he wanted to be named residential parent of the children for the following reasons:

"Briefly, I feel like I've demonstrated that I can do a good job with my children. I've demonstrated that I'll cooperate with Nancy on visitation in every way that I can. I believe that their continued participation at [school], the activities that they're involved in here and the relationship with their friends is important to them. I'm concerned about Matt and Megan's long term development. And I feel very capable of being their custodian parent."

Psychologist James Hagen testified that he believed the disposition caused by changing custody of the children to appellee would outweigh the advantages of a change. Appellant's counselor Warren Throckmorton testified that he believed there would be no advantage in changing custody at this point.

Appellant further testified that a few days after appellee left for Toledo, he cashed a $76,000 certificate of deposit belonging to the parties. He used $46,000 of the amount to pay off a loan of the parties. He used the remaining $30,000 to refurnish the marital residence, to install a swimming pool he claims the parties promised to the children before appellee left for Toledo, and to pay attorney fees he incurred in this action. Appellant earns $69,294 per year as the Dean of Engineering Technologies at Shawnee State University.

Appellee presented various witnesses, including Ken Warfield, a senior instructor at Shawnee State University. Warfield testified the children visited the campus two to three times a week.until recently. One day he found the children unsupervised in a building undergoing some construction. Other days he found the older child coloring at a table in appellant's office when she was too sick to be in school. When asked if he had an opinion concerning appellant's truthfulness, Warfield testified that appellant tends not to tell the whole story or shades the story to his benefit. Warfield further testified that appellant is very manipulative.

Appellee testified that appellant introduced the family bed concept into the family. Upon appellant's urging, all four members of the family slept together. Appellee testified that she did not like this type of sleeping arrangement. Appellee also did not like the fact appellant slept outside in a tent with the children in April despite very cold temperatures. Appellee further testified that appellant limited telephone contact between her and the children.

Many witnesses testified that appellee is a good parent. Before appellant obtained temporary custody of the children, appellee served as primary caretaker of the children.While the parties lived together, appellant only saw his children two hours each weekday. Appellee testified she currently earns approximately $14,000 working full-time, and attends college classes-one night per week.

Appellee presented evidence that while in appellant's temporary custody during the pendency of this action, the children missed sixteen days of school together, and were tardy to school together fourteen times. On only two occasions did one child attend school while the other was absent. Appellant testified that "sometimes emotionally they just needed to not be in school, in my opinion."

On August 17, 1992, the court, inter alia, granted the parties a divorce and named appellee the-residential parent of the children. On December 9, 1992, the court overruled the parties' objections to the referee's report. Appellant filed a timely notice of appeal on January 7, 1993. Appellee filed a timely notice of cross-appeal on January 8, 1993.

I

Due to the fact appellant chose to argue his first three assignments of error together, we will consider them together. In his first assignment of error, appellant asserts the trial court erred by naming appellee as the residential parent. In his second assignment of error, appellant asserts the trial court erred by adopting the referee's report. In particular appellant asserts the...