Norma J. Eitel v. Myron Keith Eitel, 96-LW-3381

• Decision Date: 23 August 1996
• Docket Number: 96-LW-3381,95CA11
• Parties: Norma J. Eitel, Plaintiff-Appellee v. Myron Keith Eitel, Defendant-Appellant CASE
• Court: Ohio Court of Appeals

Norma J. Eitel, Plaintiff-Appellee v. Myron Keith Eitel, Defendant-Appellant

No. 95CA11.

96-LW-3381 (4th)

Court of Appeals of Ohio, Fourth District Pickaway

August 23, 1996

Melody L. Steely, Circleville, Ohio, for Plaintiff-Appellee.

James R. Kingsley, Circleville, Ohio, for Defendant-Appellant.

DECISION

Kline J.:

This is an appeal from a judgment of the Pickaway County Court of Common Pleas that granted a divorce to plaintiff-appellee Norma J. Eitel and defendant-appellant Myron Keith Eitel. The parties have two children, and the trial court designated each party the residential parent of one of the children. The trial court also divided the marital property and taxed all court costs to appellant. Appellant appeals the trial court's judgment and assigns the following errors:

ASSIGNMENT OF ERROR NO. 1:

DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT DESIGNATED MOTHER AND NOT FATHER RESIDENTIAL PARENT/LEGAL CUSTODIAN OF COLTON LEE EITEL, DOB 2/14/89?

ASSIGNMENT OF ERROR NO. 2:

DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR IN ITS PROPERTY DIVISION?

ASSIGNMENT OF ERROR NO. 3:

DID THE TRIAL COURT PREJUDICIALLY ALLOCATE (OR IGNORE) DEBTS?

ASSIGNMENT OF ERROR NO. 4:

DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT TAXED ALL COSTS TO THE DEFENDANT?

The hearing for this action took place over six months on five separate days. In a pre-trial order, the trial court limited the parties to ten witnesses each, although appellant presented eleven, and restricted the testimony to events occurring since the birth of the parties' youngest child Colton Lee Eitel. The testimony revealed the following pertinent facts.

Appellant and appellee married in 1975. Appellee gave birth to three children: Brandon Keith, born on May 4, 1978; Colton Lee, born on February 14, 1989; and Courtney Kaye, born on February 18, 1992. In her complaint, appellee stated that there were three children from the marriage and requested custody of all three. Appellant counterclaimed for divorce and also requested custody of all three children.

After the complaint was filed, a DNA test showed a 99.99% probability that David L. Perkins, not appellant, was the father of Courtney. Appellee and Mr. Perkins have been engaged in an affair since 1991. Mr. Perkins was permitted to intervene in the action for the purpose of establishing his paternity and was subsequently dismissed.

It is apparent from Brandon's testimony that he is very close to his father and harbors a great amount of hostility and resentment towards his mother. At the hearing, appellee testified that she would like custody of Brandon but understood that Brandon preferred to be with appellant. Consequently, the testimony focused on the question of the appropriate residential parent for Colton and the matter of property division.

The evidence demonstrated that appellant and appellee's marriage was volatile. Much of the testimony concerned appellant's allegation that appellee had affairs with fifteen men during their marriage, including her affair with David Perkins, and that appellee and Mr. Perkins physically abused and otherwise failed to take proper care of Colton. Appellee admitted to affairs with two men, one shortly after she and appellant were married, and the other being Mr Perkins. Appellee testified that she and Mr. Perkins plan to marry eventually and that she and Mr. Perkins provide very well for Colton. Appellee denied that she or Mr. Perkins ever abused Colton.

Appellee submitted testimony concerning appellant's nature and mannerisms. Appellee alleged that appellant was hostile, jealous, and emotionally unstable. Appellee and Brandon testified about several incidents in which appellant threatened to commit suicide. The evidence showed that appellant often calls appellee a whore and a slut in front of their children. Appellee introduced police reports in which she alleged that appellant was harassing her over the telephone and by driving by the D & K Market, which Mr. Perkins owns and where appellee works, shouting obscenities.

On behalf of appellee, friends of the family testified that appellee is a hard worker and a loving and caring mother. Appellee's family therapist testified that appellee has "more than adequate skills for the job in the parenting of Colton," and that there were no signs that appellee abused Colton. The therapist stated that appellant refused to become involved in the family therapy despite repeated requests that appellant join them. Several witnesses testified about appellant's derogatory name-calling and that Colton was heard repeating his father's inappropriate language. Contrary to appellant's assertions, witnesses also testified that appellee kept her house clean and cooked for her children.

On appellant's behalf, several of his relatives, including his father, his sister, and his cousin, testified about the loving relationship appellant has with his children. Appellant's witnesses also testified that the house was much cleaner since appellee left, and they described Colton as frequently appearing tired and having numerous bruises and scrapes. Appellant produced the testimony of a deputy sheriff with the Pickaway County Sheriff's Department who testified about reports of alleged child abuse filed by appellant. The deputy sheriff noted, however, that no charges materialized from the investigation. Appellant's witnesses described incidents in which appellee used foul language and physically assaulted appellant and Brandon.

Appellant objected to a psychological evaluation written by John A. Tarpey, Ph.D. about appellant and appellee. Dr. Tarpey's report included information obtained from both parties dating from the beginning of their marriage. Appellant specifically objected to Dr. Tarpey's observations about appellant's personality. For example, Dr. Tarpey came to the following conclusions:

There was evidence of psychopathology present for Mr. Eitel at the present which tends to suggest a chronic and severe emotional disorder. Mr. Eitel might be described as suspicious, angry and evasive while prone to ruminate angrily about real or imagined injustices done to him. * * * Also noted was the tendency to be impulsive and to show poor judgment or insight. For such an individual suicide attempts are moderately frequent * * * as is assaultiveness and drug abuse/addiction.

* * *

In dealing with his personal level of distress, Mr. Eitel may find it particularly difficult to care adequately for the needs of others as he should tend to become self-absorbed and self-centered in his interpersonal orientation. It is due to this that Mr. Eitel very likely over-involved his son, Brandon, in problems between him and his wife and sought an alliance with his son that clearly was not in Brandon's best interests.

The report was admitted over appellant's objection.

On December 30, 1994, the trial court granted the divorce to both parties and designated appellee the residential parent of Colton and appellant the residential parent of Brandon. The court found that it had insufficient information to make an order concerning property division and therefore requested additional information from appellant. The court also ordered appellant to pay the court costs.

In a supplemental opinion, the trial court ordered the property division, the details of which will be explained as needed. On April 26, 1995, the trial court entered its judgment decree of divorce with findings of fact and conclusions of law.

I.

In appellant's first assignment of error, he challenges the allocation of parental rights and responsibilities to appellee. Appellant raises six issues under this assignment of error, and we will address each issue separately.

A.

The first issue appellant raises is the trial court's order that the evidence be limited to that occurring since Colton's birthday. Appellant argues that this limitation excluded the effect of appellee's behavior on Brandon, which is relevant to appellee's parenting abilities. Specifically, the trial court excluded evidence concerning an incident in which Brandon allegedly witnessed his mother performing fellatio on a man with whom she denies having an affair; an incident in which appellant observed appellee having intercourse with a man with whom appellee denies having an affair; alleged sexual acts with a current county commissioner; and an incident in which appellee received a vibrator as a gift from a man with whom she denies having an affair.

Before examining the propriety of the trial court's order limiting the admissibility of evidence, we must first set forth our standard of review. The admission and exclusion of evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173 paragraph two of the syllabus. An appellate court reviewing the trial court's decision to admit or exclude evidence must limit its review to whether the trial court abused its discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 107. An abuse of discretion involves more than an error of judgment; it implies an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157. When applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-138; Berk v. Matthews (1990), 53 Ohio St.3d 161, 169. An appellate court must be guided by a presumption that the findings of the trial court are correct, since the trial court is in the best position to view the witnesses and weigh the credibility of the proffered testimony. In re Jane Doe 1, 57 Ohio St.3d at 138; Bechtol v. Bechtol ...