McClure v. McClure, 93
| Decision Date | 05 October 1994 |
| Docket Number | No. 93,93 |
| Citation | 647 N.E.2d 832,98 Ohio App.3d 27 |
| Parties | McCLURE, Appellant and Cross-Appellee, v. McCLURE, Appellee and Cross-Appellant. * CA 79. |
| Court | Ohio Court of Appeals |
Robert D. McClure, pro se.
Paul W. Barrett, Xenia, for appellee and cross-appellant.
Robert D. McClure ("Doug") appeals from the judgment of the Greene County Court of Common Pleas which granted him and Karen S. McClure a divorce. Karen filed a cross-appeal.
A brief statement of the facts follows.
Doug and Karen were married in Minot, North Dakota, on November 4, 1983. At the time of the marriage, Karen had two children, Angela and Joshua, from a previous marriage. Doug adopted Angela and Joshua. Six months into the marriage, Karen gave birth to another daughter, Alexis. Until recently, the parties did not dispute that Doug was Alexis' father.
For approximately the first year of their marriage, Karen, Doug, and the children lived in the house Doug had purchased previous to the marriage. Doug was then transferred to McClellan Air Force Base in Sacramento, California, and Karen and Doug bought a house in Sacramento. In September 1988, the McClures moved to Beavercreek, Ohio. They rented a house for a period of time and, after selling the house in California, they were able to buy a house in Beavercreek.
On May 24, 1992, Doug was arrested for domestic violence for attempting to prevent Angela from leaving the house. An order was issued requiring him to vacate the house in Beavercreek. Doug established a separate residence and never resumed residency in the marital home.
On May 28, 1992, Doug filed a complaint for divorce. Karen filed a counterclaim for divorce. Temporary orders were issued requiring Doug to pay child support and Karen's housing expenses.
On August 3, 1992, Doug was given an ultimatum from the Air Force to accept a voluntary separation or be involuntarily discharged. Doug chose to resign, and he qualified for and began to receive the Voluntary Separation Incentive ("VSI") package offered by the Armed Forces to encourage a reduction in force. Doug has not yet obtained new employment. The VSI pays Doug $17,400 annually in a lump sum on his resignation date.
Upon Doug's motion, the amount of child support was reduced. Temporary spousal support was discontinued.
A hearing was held on June 11, 1993. On September 2, 1993, the trial court filed a "Decision on Divorce," which ordered Doug to prepare and present a final decree in accordance with the decision. On September 21, 1993, Doug filed a motion requesting DNA testing of Doug, Karen, and Alexis to determine the paternity of Alexis. On October 15, 1993, the trial court entered its final judgment and decree of divorce, which was identical in all substantial respects to its September 2 decision. The September 21 motion for DNA testing was not addressed by the trial court.
The final judgment and decree of divorce awarded custody of Alexis and Angela to Karen. Custody of Joshua was not at issue because he was emancipated at the time of the divorce. Doug did not request visitation with Angela. The decree reflected the agreement of counsel at the June 11 hearing that Doug may be granted visitation with Alexis in the future upon the finding of Doug's physician that visitation would be appropriate. The decree ordered Doug to continue to pay $167.50 per child per month until Alexis and Angela are emancipated. The court directed that the child support payments be made out of Doug's VSI directly from the Air Force to the Greene County Child Support Enforcement Agency.
The decree also ordered Doug to pay rehabilitative spousal support to Karen in the amount of $400 per month for two years. The court found this award to be reasonable and appropriate to assist Karen as she attempted to continue her education. The spousal support was to be paid directly from Doug's VSI payment to Karen.
Additionally, the trial court ordered that Doug was entitled to $1,600 from the proceeds of the sale of the marital residence as separate property to compensate him for his equity in the house in Minot, which Doug had purchased prior to the marriage. The court also determined that Doug's VSI payments were his separate property not subject to division.
On appeal, Doug asserts six assignments of error, and Karen asserts four. We will first consider Doug's assignments of error and then address Karen's cross-assignments of error.
In support of this assignment of error, Doug contends that (1) he did not agree to restrict his right to visitation, (2) no mediation report was filed with the trial court, (3) the decision to deny him visitation with Alexis was contrary to the medical evidence, (4) the court violated Civ.R. 60(B), (5) the court violated Civ.R. 75, and (6) the trial court failed to state its findings of fact and conclusions of law.
Doug argues that the agreement among the attorneys regarding his waiver of his right to visitation did not reflect his position. Rather, Doug asserts that the agreement reflected only the attorneys' perceptions of his mental state.
At the conclusion of the June 11 hearing, the following discussion took place:
The decree of divorce stated, in pertinent part, as follows:
"By agreement between the parties, visitation with Alexis may be granted, upon a Court hearing, to the Plaintiff/Father at some future date upon the finding by the Plaintiff's treating physician that visitation would be appropriate."
Doug was present in the courtroom when the attorneys entered into the agreement regarding visitation with Alexis. Doug did not object to this agreement from June 11 through the date of the decree, October 15. There is nothing in the record to support Doug's contention that he did not consent to the agreement entered by his attorney. Accordingly, the trial court did not abuse its discretion in entering judgment in accordance with the apparent agreement of the parties.
Doug also contends that the trial court erred in failing to consider a mediation report. He relies on R.C. 3109.051, which states that "the court shall consider any mediation report filed pursuant to 3109.052 of the Revised Code." Although, as Doug argues, the word "shall" indicates that the provision is mandatory, the provision becomes mandatory only if a mediation report is filed. No mediation report was filed in this case, and there is no indication that any mediation occurred. Thus, the trial court could not have erred by failing to consider a mediation report.
Doug argues that the trial court erred in denying him visitation because his personal physician, Dr. Moon, expressed the opinion that supervised visitation would be appropriate. By acquiescing to the agreement not to grant him visitation, Doug waived his right to have the court determine the propriety of visitation based upon the evidence. Moreover, the trial court was not bound to adopt Dr. Moon's opinion as to the appropriateness of Doug's visitation with Alexis. Dr. Moon diagnosed Doug with major depression, post-traumatic stress disorder, and multiple personality disorders. He further testified that Doug's prognosis was fair and that he required continuing psychiatric treatment. Dr. Moon stated the post-traumatic stress disorder and the personality disorders could be lifelong problems for Doug. In light of this testimony, the trial court would not have abused its discretion in denying Doug visitation with Alexis even if Doug had not agreed to waive his visitation.
The next arguments Doug asserts are that the trial court violated Civ.R. 60(B) and Civ.R. 75. Doug did not move to vacate the judgment of the trial court. Accordingly, the trial court was never called upon to consider Civ.R. 60(B) and could not have violated that rule. Doug argues that Civ.R. 75(L) was violated because "no credible evidence was entered before the trial court to preclude denial of child visitations." To the contrary, Dr. Moon's testimony, as described above, supported the trial court's decision not to grant visitation.
Finally, Doug asserts that the trial court erred by failing to state its findings of fact and conclusions of law. In support of this argument, Doug contends that the trial court failed to answer his "motions for facts and findings," which he filed on May 14, 1993 and July 7, 1993. However, these motions did not refer to the court's decision on visitation; rather, they addressed alleged omissions in the transcript of a February 16, 1993 hearing.
R.C. 3109.051 requires a court to journalize its findings of fact and conclusions of law, when the court determines that it would not be in the best interest of a child to permit a parent to visit the child. The trial court's "Decision on Divorce" and its "Final Judgment and Decree of Divorce" were sufficient to constitute a statement of the court's findings of facts and conclusions of law in this case....
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