O'Brien v. O'brien, Unpublished Decision (12-18-2006)
O'Brien v. O'brien, Unpublished Decision (12-18-2006)
Opinion of the Court
OPINION {¶ 1} Appellant Lisa O'Brien, aka Leisa O'Brien, appeals from her divorce in the Stark County Court of Common Pleas, Domestic Relations Division. Appellee Mark O'Brien is appellant's former spouse. The relevant procedural facts leading to this appeal are as follows.
{¶ 2} Appellant and appellee were married on November 4, 1988. Two children were born of the marriage: Casey (born in 1992) and Connor (born in 1995). Appelleehusband filed a complaint for divorce on January 21, 2004, in the Stark County Court of Common Pleas, Domestic Relations Division. The court thereafter appointed a guardian ad litem for the children. The case was stayed for a time due to appellant's pending bankruptcy action, which resulted from appellant incurring credit card debts of over $200,000.00. The divorce action finally went to trial on January 24, 2006. Appellee appeared and was represented by counsel; appellant proceeded pro se upon the court's denial of her request for appointed counsel.
{¶ 3} On February 2, 2006, the court issued a judgment entry of divorce, ordering inter alia that appellee pay spousal support to appellant in the amount of $2,500 per month for three years.
{¶ 4} On February 24, 2006, appellant filed a notice of appeal. She herein raises the following three Assignments of Error:
{¶ 5} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN MAKING ITS AWARD OF SPOUSAL SUPPORT, WHICH WAS INSUFFICIENT IN AMOUNT AND DURATION.
{¶ 6} "II. THE TRIAL COURT ERRED IN DENYING APPELLANT THE OPPORTUNITY TO CROSS-EXAMINE THE GUARDIAN AD LITEM.
{¶ 7} "III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST TO CONTINUE THE TRIAL, REQUIRING HER TO PROCEED PRO SE."
{¶ 9} A trial court's decision concerning spousal support may only be altered if it constitutes an abuse of discretion. Kunkle v. Kunkle
(1990),
{¶ 10} R.C.
{¶ 11} "(C)(1) In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the court shall consider all of the following factors:
{¶ 12} "(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section
{¶ 13} The record reflects that the parties were married for seventeen years. Appellant has had limited employment since the mid-nineties, although she did have a consistent work history from 1984 to 1991. See Appellant's Deposition, Sept. 9, 2004, at 8-21. Appellant, age 39, took some college courses after high school, but did not obtain a college degree. Id. at 11. She apparently plans to run a home-based business, making chocolate candies for sale. The court found that appellant has been suffering from unspecified mental health issues, resulting in her hospitalization during the pendency of the divorce, although her physical health is good. Judgment Entry of Divorce at 3. The parties had a "comfortable" lifestyle; the marital home was valued at $170,000, with a mortgage balance of $108,059. Id. at 4. Appellee, age 42, has a bachelor's degree and earns approximately $125,000 per year.
{¶ 14} Having reviewed the above facts and the pertinent portions of the record, we are not inclined to substitute our judgment for that of the trial judge, who concluded that $2,500 per month for three years would be appropriate and reasonable under R.C.
{¶ 15} Appellant's First Assignment of Error is overruled.
{¶ 17} R.C.
{¶ 18} In the case sub judice, right after the trial court admitted the written report of the guardian ad litem, Attorney Karen Dummermuth, appellant stated as follows to the court: "I would like to ask [the guardian ad litem] questions. Because she has negligently represented my children. That's the purpose we have an in court camera (sic) interview with my children." Tr. at 31. The court then stated that the guardian ad litem report was "admitted automatically" and did not further address appellant's request. Id. We note appellant did not recite R.C.
{¶ 19} Rule 17.03(A)(5) of the Stark County Local Rules of Court (Family Court Division) prohibits the guardian ad litem from participating in a hearing or trial unless specifically ordered by the court or agreed to by the parties. Furthermore, it is incumbent upon an appellant raising issues pertaining to the denial of crossexamination of a guardian ad litem to show prejudicial error. See Evans v. Evans (Sept. 20, 2001), Franklin App. Nos. 00AP-1459, 00AP-1466, citing Smith v.Smith (Dec. 28, 1999), Franklin App. No. 98AP-1641.1 A prejudicial error is defined as one which affects or presumptively affects the final results of the trial. Linden v. Cooper Hall (Dec. 21, 1984), Ottawa App. No. OT-84-11 (citations omitted). Assuming, arguendo, R.C.
{¶ 20} Accordingly, appellant's Second Assignment of Error is overruled.
{¶ 22} The grant or denial of a continuance is a matter entrusted to the broad, sound discretion of the trial court. Polaris VenturesIV, Ltd. v. Silverman, Delaware App. No. 2005 CAE 11 0080,
{¶ 23} In the case sub judice, appellee filed for divorce in early 2004. Appellant filed her first request for continuance on December 14, 2004, the day set for trial. At a hearing on February 1, 2005, the court permitted appellant's first attorney to withdraw and informed appellant at that time that the case would go forward whether or not she had a new attorney. The trial was next scheduled for March 22, 2005. On March 21, 2005, appellant's second attorney filed a suggestion of stay due to appellant's bankruptcy. The trial was therefore stayed. Thus, during these time frames, appellant retained two different attorneys, but appeared for the twice-rescheduled trial on January 24, 2006 unrepresented. In light of these circumstances, we find no abuse of discretion by the trial court in denying the motion to continue the divorce trial.
{¶ 24} Appellant's Third Assignment of Error is overruled.
{¶ 25} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, P. J. Gwin, J., and Farmer, J., concur.
Costs to appellant.
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