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Miller v. Miller

Court of Appeals of Ohio, Fifth District

December 28, 2006

THOMAS O. MILLER Plaintiff-Appellee
v.
SARAH A. MILLER Defendant-Appellant

Civil Appeal from the Court of Common Pleas, Case No. 04 DV 429

For Defendant-Appellant ROBERT E. WEIR FRASE, WEIR, BAKER & McCULLOUGH

For Plaintiff-Appellee VAN BLANCHARD, II

Hon. John W. Wise, P. J. Hon. Sheila G. Farmer, J. Hon. John F. Boggins, J.

OPINION

Wise, P. J.

{¶1} Appellant Sarah A. Miller appeals her divorce in the Coshocton County Court of Common Pleas. Appellee Thomas O. Miller is appellant's former spouse. The relevant procedural facts leading to this appeal are as follows.

{¶2} The parties were married in Coshocton, Ohio, on July 3, 1982. Two children were born of the marriage, only one of whom remained unemancipated at the time of the final decree. On August 5, 2004, appellee filed a complaint for divorce. Appellant answered and filed a counterclaim on August 17, 2004. The matter proceeded to a trial before a magistrate on April 1, 2005. Both parties acknowledged incompatibility as alleged in appellee's complaint. The magistrate issued a decision on September 16, 2005, ordering, inter alia, that appellee pay appellant spousal support of $400.00 per month for 135 months.

{¶3} On January 3, 2006, appellant filed objections to the magistrate's decision. Appellee filed his response to the objections to the magistrate's decision on January 13, 2006. On February 28, 2006, the trial court issued a judgment entry adopting the magistrate's decision in part, and correcting it in part, (solely as to a math error in dividing an IRA account). On March 30, 2006, appellant filed a notice of appeal. She herein raises the following two Assignments of Error:

{¶4} "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WITH ITS ABUSE OF DISCRETION BY FAILING TO ADOPT AS FACTS PROPOSED FINDINGS OF FACT NOS. (5-7) SUBMITTED BY APPELLANT.

{¶5} "II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ABUSING ITS DESCRETION (SIC) IN AWARDING APPELLANT $400.00 PER MONTH AS AND FOR SPOUSAL SUPPORT.

I.

{¶6} In her First Assignment of Error, appellant argues the trial court committed prejudicial error by failing to adopt paragraphs 5, 6, and 7 of her proposed findings of fact. We disagree.

{¶7} A trial court retains inherent authority to request sua sponte that the parties submit proposed findings of fact and conclusions of law. Roediger Const., Inc. v. Waslyk (April 17, 1997), Cuyahoga App.Nos. 70839, 70844, citing Biehl v. Biehl (June 25, 1996), Washington App. No. 95CA14, f.n.1. When a matter is submitted to the bench, we must presume that the court considers only relevant, competent, and admissible evidence in its deliberations. Baxter v. Kendrick, 160 Ohio App.3d 204, 208, 826 N.E.2d 860, 2005-Ohio-1477, citing State v. Davis (1992), 63 Ohio St.3d 44, 584 N.E.2d 1192. In the case sub judice, the proposed findings at issue are set forth as follows:

{¶8} "(5) The Husband throughout the marriage has exhibited violent behavior with outrageous screaming and yelling. In one of the episodes, he cleared off a kitchen countertop with his arm, shoving the items on the counter onto the floor. He took a bag of potato chips and crushed it, scattering the chips all over the floor. In July of 2003, he beat the dog and threatened to beat the 'shit' out of the Wife. He has been diagnosed with depression and sought counseling at Six County, Inc. The Husband admitted that he has had suicidal thoughts in the past, blaming it on being trapped in the marital relationship. The Husband, a 20 year member of the Eagles, met [a female acquaintance] in July of 2004 and has struck up a relationship with her. She has spent the night at the marital home with ...


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