Janet L. Sellman v. Harold K. Sellman
| Decision Date | 26 September 1996 |
| Docket Number | 96-LW-3344,95CA888 |
| Parties | JANET L. SELLMAN, Plaintiff-Appellant v. HAROLD K. SELLMAN, Defendant-Appellee CASE |
| Court | Ohio Court of Appeals |
Kimpel Hyland, Weinkam & Goodson, L.P.A., Karen A. Brinkman Cincinnati, Ohio, for Appellant.
Jeffrey J. Lyle, Hillsboro, Ohio, for Appellee.
DECISION
This is an appeal from a divorce judgment entered by the Common Pleas Court of Highland County, Ohio, which inter alia divided personal property between Janet L. Sellman plaintiff below and appellant herein, and Harold K. Sellman, defendant below and appellee herein, as well as award custody of two (2) minor children to their father. The following assignments of error have been
posited for our review.
The record reveals the following facts to this appeal. The parties herein were married on December 4, 1982, in Hollowtown, Ohio, and two (2) children, to wit: Erica Sellman (D.O.B. 10-6-84) and Caleb Sellman (D.O.B. 2-6-89), were born as issue of said marriage. Trouble began developing between the parties several years ago when appellant took a job outside of the home. She filed a complaint for divorce on September 15, 1993, alleging gross neglect of duty, incompatibility and extreme cruelty. Appellant requested that she be given, among other things, permanent custody of the minor children as well as an equitable division of personal property. On October 4, 1993, appellee filed his answer denying the allegations set forth by his wife. He also filed a cross-complaint for divorce alleging gross neglect of duty and extreme cruelty and, farther, requested permanent custody of the minor children. Temporary custody of the children was awarded to appellant pendente lite.
The matter came on for a hearing on March 16th and June 8th, 1994, before a referee at which time both sides presented evidence. It would appear from the transcript of those hearings that the parties led a strongly religious life during their marriage and were very involved with their church. The uncontroverted evidence below was that appellant had been a "good" wife and mother for most of the marriage. Her husband testified, however, that this all began to change within "[t]he last year or two" after appellant began working. The new job supposedly led appellant to change "her lifestyle" and her husband was now compelled to do more laundry and cooking around the house. Furthermore, the family missed having "home cooked" meals as appellant would often bring home pizza or some other type of food if she was tired after work. Appellee also testified that his wife was no longer active in church and had "quit pretty much."
Appellant testified in her own defense and stated that the only reason she went to work was because her husband had told her that she "was stupid and ... could never get a job." It was also suggested that both incomes were needed to meet family expenses and that, on occasion, appellee would prioritize his "10% tithing" to the church above payment of bills when finances were tight. Nevertheless, appellant explained, her husband was upset about her joining the work force and that (pursuant to the beliefs of their church) This conflict apparently played a significant part in the unravelling of their marriage. Still, appellant denied charges (leveled against her by opposing counsel during cross-examination) that she had failed to be a "dutiful wife" for not quitting her job when her husband demanded it. Appellant also explained that she no longer attends church with her family because she is "shunned" for having filed for divorce and would be punished and not spoken to by other members of the congregation.
At the conclusion of the hearing on June 8, 1994, the Referee announced that he found appellant "guilty of [g]ross [n]eglect of [d]uty" and would recommend that her husband be granted a divorce as prayed for in his cross-complaint. There appear to have been no objections filed and, on July 1, 1994, the court below entered judgment adopting the Referee's recommendation. The remaining issues of property division and custody of the minor children were continued to a third hearing which was held on August 31, 1994. Although some evidence was presented at that time with respect to amount and value of personal property and household items, the bulk of the hearing was spent addressing issues relative to an award of custody. Considerable evidence was adduced at this hearing (as well as some at previous hearings) that appellant had had "relationships" with other men around, and subsequent to, the time she filed for divorce. It was also uncontroverted that appellant had been leaving the minor children in the care of her family while she had been at work.
A report was issued on September 30, 1994, recommending that both parties be allowed to retain property which was in their possession at that time (free and clear of any claims by the other party). With respect to the issue of custody, it was found to be in the best interests of the minor children to be placed with their father. The Referee opined that, while their mother had been the children's "primary care giver" before starting work she "did not spend as much time with the children after she went to work... " Appellant filed objections to the Referee's Report and requested that the trial court interview the children. On August 8, 1995, Caleb and Erica Sellman were brought to chambers and interviewed by the court below. Both children indicated that, while they enjoyed visiting their father, they preferred to remain with their mother. In particular, Erica stated that she did not want to live with her father because she had "private stuff' she liked to "talk over" with her mother. However, the lower court was not persuaded. A decision and judgment entry was filed the same day overruling appellant's objections and adopting the Referee's Report in toto. This appeal followed.
Appellant argues in her first assignment of error that the lower court erred in its division of household goods and personal property between the parties. We agree. Appellee testified at the March 16, 1994, hearing that the only furniture taken by his wife when she left the marital residence was the living room couch as well as a set of bunk-beds and a dresser from Caleb's room. He also stated that appellant had taken some miscellaneous "housewares and that stuff" when she left their home. Appellant testified as follows at the same hearing concerning the personal property she was permitted to take with her:
On March 16, 1994, appellee filed a detailed statement of property with the court below.
Included within this statement was a list of household property and their estimated value. This list showed the following items:
TV (91) 80.00
VCR (92) 90.00
Washer 125.00
Dryer 50.00
Refrigerator 300.00
Stove 200.00
Water Bed 100.00
Microwave 40.00
Living Room Furniture 900.00
Beds (Calebs) 60.00
Dresser 30.00
Bed (Erica) 40.00
Dresser 10.00
Wood Stove 85.00
Desk 50.00
Misc. Houseware 200.00
Mowers 250.00
Misc. tools etc. 200.00
Table & Chairs 45.00
China Cabinet 150.00
2 Lamps 40.00
Stereo 50.00
It is not entirely clear from the record what items made up the total of "living room furniture." Appellee testified below that there was at least one other loveseat that had been retained by him after his wife left. Nevertheless, for purposes of our analysis, we will allocate the entire $900 value of the living room furniture to appellant. We will similarly allocate the entire $200 of miscellaneous houseware items to appellant for purposes of our calculations even though it is clear from the record that she only took few of these items. That being said, we compute that appellant took only $1,190 (or 22%) of the total household goods valued at $5,420 when she left the property while appellee retained $4,230 (or 78%) of those items. The disparity between these figures would, undoubtedly, be higher if it could be determined precisely how much of the total living room furniture and miscellaneous household items had been retained by appellant. Nevertheless, these figures are sufficient for us to determine that the lower court erred in leaving the parties at status quo.
Trial courts are required by law to divide marital property and separate property equitably between the spouses. R.C....
To continue reading
Request your trial