Lopez v. Lopez, 29368

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWELBAUM, J.
Citation2022 Ohio 3255
PartiesJAVIER E. LOPEZ Plaintiff-Appellee v. KIMBERLY J. LOPEZ Defendant-Appellant
Docket Number29368
Decision Date16 September 2022


JAVIER E. LOPEZ Plaintiff-Appellee

KIMBERLY J. LOPEZ Defendant-Appellant

No. 29368

Court of Appeals of Ohio, Second District, Montgomery

September 16, 2022

Domestic Relations Appeal Trial Court Case No. 2019-DR-701

JENNIFER L. BROGAN, Atty. North Main Street, Suite Attorney for Plaintiff-Appellee

CHARLES D. LOWE, Atty. Washington Village Drive, Suite Attorney for Defendant-Appellant




{¶ 1} Defendant-Appellant Kimberly J. Lopez ("Kimberly") appeals from a final judgment and decree of divorce. According to Kimberly, the trial court erred in deciding that Plaintiff-Appellee Javier E. Lopez ("Javier") should be the custodian of a 529 college savings plan account that was established for the parties' minor child.

{¶ 2} We conclude that the court did not err in designating Javier as custodian of the 529 account. First, Kimberly failed to object to the trial court's treatment of the custodianship as a contested divorce issue. Any alleged error, therefore, can be reviewed only for plain error. However, no plain error or even any error occurred. Kimberly's circumstances caused the court to restrict her parenting time, to require supervised parenting time, and to mandate alcohol testing during the time she spent with her child. In light of the evidence before the court, Javier was an appropriate party to oversee the minor child's college fund. The court also ordered that Kimberly receive quarterly statements for the account; therefore, she could monitor the account and take action if needed. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} Kimberly and Javier were married in June 2009, and they have one child, S.L., who was born in March 2010. On September 11, 2019, Javier filed a complaint for divorce. Kimberly filed an answer to the complaint and a counterclaim for divorce on October 9, 2019.

{¶ 4} The initial contested hearing began on January 8, 2021, but was continued after some evidence was taken from several witnesses, including two police officers who


had investigated a September 2019 domestic violence incident that resulted in criminal charges against Kimberly. The court also heard testimony from Kimberly's mother, who discussed Kimberly's alcohol issues.

{¶ 5} After these witnesses testified, the parties told the court that they had reached a partial agreement about various issues. The agreement included the following matters: (1) Javier would be S.L.'s residential parent and legal custodian; (2) Kimberly's mother would continue supervising Kimberly's parenting time; (3) spousal support would be waived; (4) both parties would retain any and all retirement, checking, and savings accounts that were in their names only; (5) Javier would retain his interest in his business; (6) the parties would retain their own vehicles and any associated debt, and their own insurance policies; and (7) any debt liability on a time-share the parties owned would be split equally. Transcript of January 8, 2021 Proceedings (Tr. 1) p. 42-44, 45, 46, and 47.

{¶ 6} At the hearing, the parties also told the court about items that were still contested. These items included: (1) respective equity in the marital real estate; (2) who would be the custodian for two custodial accounts of the minor child; (3) disposition of household furnishings and personal property; and (4) allocation of child support, health insurance, and expenses for the child. Tr.1 p. 44-46, and 47.

{¶ 7} After the agreement was read into the record, the court questioned both parties about the agreement and its terms. They both said they understood, were satisfied, and had entered into the agreement freely and voluntarily. Tr. 1 at p. 49-52. The court then found the partial agreement fair and equitable and ordered that it be incorporated into the final decree. Tr. 1 p. 52. At no time did Kimberly object to the


assertion that the accounts' custodial status was contested.

{¶ 8} A second hearing was held on April 26, 2021, at which time the court heard testimony from Javier, Kimberly, and a person who had recently purchased the marital property. At that time, the parties said that they had resolved the personal property issues. Transcript of April 26, 2021 Proceedings (Tr. 2), p. 68-69. During the hearing, Javier testified about issues related to child support, health insurance, school expenses, and disposition of proceeds from the sale of the marital home. Tr. 2 p. 62-83.

{¶ 9} In addition, Javier testified that the parties had a 529 account for S.L. and that he wanted the court to name him the custodian for the account. Javier added that if the court decided not to name him as custodian, he wanted the court to require Kimberly to provide him with quarterly statements. Tr. 2 p. 84. During his testimony, Javier identified Plaintiffs Ex. 32, which was a copy of a statement for the "TD Ameritrade 529 account" that had been established for S.L.'s benefit. Id. This document indicated that Kimberly was the current custodian (and that was not...

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