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Baker v. Baker

Court of Appeals of Ohio, Fourth District

December 31, 2007

Irene M. Baker, Plaintiff-Appellant,
v.
Bryan Baker, Defendant-Appellee.

Steven L. Story and Robert W. Bright, STORY LAW OFFICE, Pomeroy, Ohio, for appellant.

Peter N. Cultice, CULTICE & BROWN, Zanesville, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

Roger L. Kline, Judge.

{¶1} Irene M. Baker (hereinafter "Mother") appeals the judgment of the Washington County Court of Common Pleas regarding her divorce from Bryan Baker (hereinafter "Father"). On appeal, Mother contends that the trial court abused its discretion when it allowed Father unsupervised visitation with their three minor children because the Father's violent temper could harm the children. Because the court heard conflicting stories regarding the Father's temper, and because the trial court is in the best position to view the witnesses and weigh the credibility of the proffered testimony, we disagree. Mother next contends that the trial court erred when it ordered her to pay $15, 715 to Father within six months because it is a distributive award. Because ordering the mother to pay $15, 715 to Father is a distributive award, and because the court did not determine "that a division of the marital property in kind or in money would be impractical or burdensome" as required under R.C. 3105.171(E)(2), we agree. Mother next contends that the trial court erred when it awarded Father the Jeep and awarded her the Hyundai. Because the court did not consider the debt owed on the Hyundai, as required by R.C. 3105.171(F)(2), we agree. Finally, Mother contends that the trial court erred when it ordered her to refinance the marital residence within six months and pay Father one-half of the equity. Because the record does not show that the trial court considered the nine factors in R.C. 3105.171(F), we agree. Accordingly, we overrule Mother's first assignment of error; sustain her second assignment of error; and remand this cause to the trial court for further proceedings consistent with this opinion.

I.

{¶2} Mother and Father married in 1996. They had three children (born in 2000, 2003, and 2005). On July 31, 2006, Mother filed for divorce. In her complaint, she asked for, inter alia, custody of the three children and an equitable division of the marital assets and debt.

{¶3} Mother moved for a temporary order of custody of the three children with Father having supervised visitation. The court granted Mother's motion.

{¶4} At the final divorce hearing, several witnesses testified as to Father's temper.

{¶5} Mother elicited testimony from witnesses to show that Father's violent outbursts led to Father physically striking her and the children. Mother's father testified that Father worked for him for two to three years, and during that time, Father displayed problems with anger. Mother's cousin testified that she witnessed Father yell at his two oldest children and (1) smack one child on the back of the head and (2) pull and yank the other child to get them in the car to leave the cousin's home.

{¶6} Mother testified that she obtained a civil protection order against Father in 2006 when, in front of their oldest child, he slapped her twice on the back of the head; slapped her face; and told her he was going to shoot her. She said that when she attempted to call 911, Father unplugged one phone and grabbed another phone from her hand. She said that was the first time Father ever struck her. She testified to other incidents involving Father throwing objects, including a knife and a digital camera.

{¶7} Father testified and admitted slapping Mother on the "side of the head, " but denied slapping her face and threatening to shoot her. He admitted that during the marriage he threw a knife at a door and punched a refrigerator.

{¶8} Jamie Vuksic, from children's services, testified that he received an alleged neglect complaint regarding the "slapping" incident that occurred in front of the oldest child. After investigating, he concluded that the oldest child faced no risk of suffering physical injuries but did face a moderate risk of emotional injury. Mr. Vuksic's ultimate finding was "substantiated neglect" because of physical contact between Father and Mother. He further concluded that there was no allegation or finding of physical abuse with regard to the child.

{¶9} Mary Barnas, a Ph.D in developmental psychology, testified. She oversees and coordinates the Washington County Supervised Visitation Center. She said that Father attended the weekly supervised visits with his children and did not cause any problems. She said that a couple of problems arose but those problems involved the oldest child telling Father that (1) Mother and grandmother had left them in the home unattended; and (2) Mother told her that Father had hurt Mother. She further stated that one discipline incident involved the Father raising his voice when disciplining the children, but this incident did not raise any concern with the staff at the visitation center.

{¶10} After the hearing, the court, with regard to visitation, ruled that "[s]upervised visits at the visitation center shall end immediately. Based on the testimony of Dr. Barnas and Mr. Vuksic, [Father] is not now a threat nor ever has been, a danger to the parties' children." The court then entered a standard order of visitation.

{¶11} The court, in regards to other issues, ordered Mother to pay Father $15, 715 within six months. Specifically, the court ruled: "In order to divide the marital assets as evenly as possible and considering the effect of social security and pension benefits earned during the marriage, as well as the disparity between incomes, the Court orders [Mother] to pay [Father $15, 715] within six (6) months[.]"

{¶12} The court further awarded the Jeep Grand Cherokee to Father and awarded the Hyundai Elantra to Mother. Mother and Father did not owe anything on the Jeep but owed about $7, 000 on the Hyundai. The court did not mention the $7, 000 debt in its order.

{¶13} Finally, the court awarded the marital residence to Mother but ordered her to refinance it within six months and pay Father one-half of the equity in the home, i.e., $172, 000 minus the mortgage amount at the time of refinance equals the equity. The court further ordered that if Mother fails to refinance the home within six months, then "either party can elect to have the home sold at public ...


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