Diehl v. Diehl, Unpublished Decision (3-5-2001)
Diehl v. Diehl, Unpublished Decision (3-5-2001)
Opinion of the Court
OPINION
Defendant-appellant Robert Diehl appeals from the July 17, 2000, Judgment Entry of the Stark County Court of Common Pleas, Domestic Relations Division.STATEMENT OF THE FACTS AND CASE, Appellant Robert Diehl and appellee Joan Diehl were married on October 4, 1986. Two children were born as issue of such marriage, to-wit: Jonathan R. Diehl (DOB 10/3/93) and Elizabeth Kay Diehl (DOB 5/9/95). On April 9, 1999, appellee filed a Complaint for Divorce and a Motion for Temporary Orders in the Stark County Court of Common Pleas, Domestic Relations Division. An Answer, Counterclaim and Motion for Temporary Orders were filed by appellant on April 21, 1999. Following a temporary motion hearing held on April 28, 1999, appellant was ordered to pay temporary spousal support in the amount of $1,200.00 per month and to pay child support in the amount of $484.37 per month per child. In addition, appellant was granted visitation one day a week for a twenty four hour period. The April 29, 1999, Judgment Entry stated that appellant was to notify appellee prior to 5:00 p.m. of the day preceding the day for visitation. Subsequently, a final hearing was held in this matter on March 22, 2000, before a Magistrate. Appellant, who was represented by counsel, was not present at such hearing since he was working out of town. Pursuant to a Magistrate's Decision filed on March 27, 2000, and approved and adopted by the trial court, the trial court granted appellee a divorce and dismissed appellant's counterclaim for failure to prosecute. The Magistrate, in his decision, ordered appellee's counsel to submit the final entry. Thereafter, a Final Entry and Judgment of Divorce was filed on the same day. The trial court, in its final entry, ordered appellant to pay spousal support to appellee in the amount of $1,200.00 per month for a period of five years and to pay child support in the amount of $484.00 per month per child plus poundage. The trial court also ordered that appellant would have no companionship with the parties' minor children until appellant had successfully completed counseling, including counseling with the children, with a licensed psychologist. Appellant, on April 5, 2000, filed an objection to the Magistrate's March 27, 2000, Decision, arguing that it was "contrary to law and against the manifest weight of the evidence. . ." Following a July 10, 2000, hearing on the objections, the trial court, pursuant to a Judgment Entry filed on July 17, 2000, overruled appellant's objection and approved and adopted the Magistrate's Decision. It is from the trial court's July 17, 2000, Judgment Entry that appellant now prosecutes his appeal, raising the following assignments of error:
I THE TRIAL COURT FAILED TO AWARD A REASONABLE AMOUNT OF SPOUSAL SUPPORT.
II THE TRIAL COURT FAILED TO CONSIDER ALL OF THE PARTIES' PROPERTY.
III THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT COMPANIONSHIP WITH THE PARTIES' MINOR CHILDREN.
(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section
As is stated above, appellant was not present at the final hearing, which was held in this matter on March 22, 2000. Testimony was adduced at such hearing that appellant, who is employed as a boilermaker, earned $66,948.00 in 1997, and $64,800.00 in 1998. Appellee testified that appellant had flexibility in his job and could work as little or as much as he chose. According to appellee, appellant was able to take several months off from work each year. In contrast, appellee, who has a degree in accounting, has not been employed since 1993. Appellee testified that, during the early years of their over thirteen year marriage, appellee supported appellant while he went back to school full-time. After appellant graduated from college, appellee was forced to quit two different jobs in order to follow her husband. Once the parties' two children were born, appellant was "adamant" that he did not want appellee working and told appellee that if she went back to work, he "would quit working and he would stay home with the kids." Transcript of March 22, 2000, hearing at 11. While, as is stated above, appellee has a degree in accounting, appellee testified that she has been unable to find employment that pays more than nine dollars an hour. According to appellee, during the years that she has been out of the work force, the accounting software has changed drastically. Since she is unfamiliar with the current computer software, appellee has been significantly hampered in her ability to find employment. While a local accounting agency was able to find appellee a job paying nine dollars an hour, appellee testified that she "would pay more in child care and taxes and taking care of everything and going to work forty hours a week than staying home with my kids. . ." Transcript of March 22, 2000, hearing at 13. At the March 22, 2000, hearing, appellee submitted a list of reasonable and necessary monthly expenses totaling $3,079.00. Appellee was receiving a total of $968.74 ($484.37 x 2) in child support from appellant as of the date of the hearing. Based on the foregoing, we find that the trial court did not abuse its discretion in awarding spousal support to appellee in the amount of $1,200.00 per month for a period of five years. The trial court clearly considered the factors set forth in R.C.
(1) The prior interaction and interrelationships of the child with the child's parents, siblings, and other persons related by consanguinity or affinity; * * * (2) The geographical location of the residence of each parent and the distance between those residences; * * * (3) The child's and parents' available time, including, but not limited to, each parent's employment schedule, the child's school schedule, and the child's and the parents' holiday and vacation schedule; * * * (4) The age of the child; (5) The child's adjustment to home, school, and community; (6) If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to visitation by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested the companionship or visitation, as to a specific visitation schedule, or as to other visitation matters, the wishes and concerns of the child, as expressed to the court; (7) The health and safety of the child; (8) The amount of time that will be available for the child to spend with siblings; (9) The mental and physical health of all parties; (10) Each parent's willingness to reschedule missed visitation and to facilitate the other parent's visitation rights, and if the person who requested companionship or visitation is not a parent, the willingness of that person to reschedule missed visitation; (11) In relation to visitation by a parent, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child; (12) In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously has been convicted of or pleaded guilty to a violation of section
A trial court's decision regarding companionship will not be reversed absent an abuse of discretion. Booth v. Booth (1989),
We find that the trial court did not abuse its discretion in awarding appellant companionship under the above conditions since such decision was not arbitrary, unreasonable or unconscionable. At the March 22, 2000, hearing, appellee testified that the parties' children had not seen appellant since April of 1999. While appellant did call once during such period of time, appellee testified that after the phone call, the couple's son was "very upset." Transcript of March 22, 2000, hearing at 20. Appellee further testified that during such period of time, appellee did not send Christmas or birthday gifts or cards or any other type of correspondence. When asked whether their lack of contact with their father was hard on the parties' children, appellee responded as follows: A. Um initially it was very difficult. Jonathan ripped off the wallpaper in his room. He punched through all of the screens on the screened porch. I am currently re-paneling seven screens. He was urinating on the carpet in the family room quite repeatedly because he was angry. He would urinate all over the toilets. He was very angry that daddy was gone and we have worked um I . . . I took him to psychologist for awhile to help him and um the psychologist feels that he's fine. He's doing very well. He's a happy adjusted little boy now. He's doing very well in school. He does great at church. He does great in his activities. He's a happy little boy. Q. Do you believe the children would be negatively affected if their father instantly re [sic] appeared in their lives? A. Absolutely. Elizabeth doesn't even know who he is. She doesn't even remember what he looks like and Jonathan doesn't remember because of ah last summer he cried about I don't remember daddy anymore. I don't remember how tall daddy is. I don't remember how I put my arms around daddy. Why doesn't daddy come to see me.
Transcript of March 22, 2000, hearing at 20-21. Appellee testified that she believed there needed to be some type of intervention with a counselor before appellant reappeared in the children's lives. Based on the foregoing, we find that although the trial court did not expressly address each of the above factors, the trial court clearly considered the factors set forth in R.C.
Accordingly, the judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is affirmed.
By Edwards, J. Gwin, P.J. and Wise, J. concurs
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