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Amy Macdonald v. John K. Macdonald

October 20, 2011


JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division Case No. D-319286

The opinion of the court was delivered by: Sean C. Gallagher, J.:

Cite as MacDonald v. MacDonald,


BEFORE: S. Gallagher, J., Stewart, P.J., and Cooney, J.

{¶1} Appellant John MacDonald, Jr., appeals the final decision of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, entered on November 10, 2010. For the following reasons, we affirm.

{¶2} Amy MacDonald ("Amy") and John MacDonald, Jr. ("John"), were married on October 26, 1992, and had two children together. Amy filed a divorce action on December 27, 2007. The minor children, born on June 4, 1997, and August 12, 2001, were represented by a guardian ad litem, Adam Thurman ("GAL").

{¶3} The divorce was contentious. The parties separated on March 31, 2008, when John was 44 years old and Amy was 45. John graduated from Bowling Green University in 1989 and was last employed outside the home in 1994. He consulted on various projects from 1995 through 1998. In 2007, John owned and operated Globalink, Inc., which provided independent contracting services for Medical Mutual. The Medical Mutual contract lasted through 2009. Globalink maintained one account at Charter One Bank, into which all the proceeds from John's contracting work for Medical Mutual were deposited. The deposits totaled $40,083 and $7,800 for 2008 and 2007, respectively. John testified that the sole source of deposits into the Charter One account was income from Globalink. In 2009, 2008, and 2007, John personally claimed gross income of $37,310, $31,856, and $2,214, respectively. At trial, John testified that he was then currently beginning to "sell energy" and expected to earn around $50,000 to $70,000 yearly. John filed for Chapter 7 bankruptcy in 2005 and discharged $124,287 in credit card debt and two mortgages.

{¶4} Amy was employed, since 2006, as a sales manager for a paper company. Amy has an associate's degree and earns about $9,432.25 per month, including the monthly car allowance of $580. In 2010, 2009, and 2008, she received bonuses of $13,676, $9,924, and $34,883, respectively, received in violation of the trial court's temporary restraining order ("TRO"). Amy used the bonuses, at least in part, to take the children on vacations, which happened every year.

{¶5} Immediately before Amy filed for divorce, she liquidated her retirement account. After taxes and penalties, she received $58,593 and used $55,000 to pay off marital debt. She is paying the taxes and any associated penalties through her bankruptcy case, filed during the pendency of the divorce.

{¶6} Amy was the wage earner for the family, and John stayed home to raise the two minor children. The parties disagree as to whether this arrangement was planned or happened because of John's inability or lack of desire to find employment. The marital home was in foreclosure during the trial. Amy paid all the marital expenses during the marriage. During the divorce, she filed a motion to force John to vacate the marital residence. John opposed and refused to leave or pay anything toward the mortgage obligation. Amy vacated the marital home in August 2008 and ceased paying the mortgage. She rented another place near the marital home and within the same school district for the children. John lived in the marital home through the date of the trial. In September 2008, Amy notified John that she would no longer make the mortgage payments on the marital home. John took no action with respect to the mortgage, despite earning some income. In March 2009, he filed a motion for temporary spousal support.

{¶7} Amy filed two petitions for a domestic violence civil protection order against John for an altercation occurring on March 31, 2008. The first petition was dismissed, as noted in the magistrate's decision adopted by the trial court, because John's objection to the full hearing that occurred two days after the statutory deadline had technical merit. The second petition was identical to the original, essentially a "refiling" based on John's objection to the original filing. At the full hearing, the court found that Amy had not met her burden to show by a preponderance of the evidence that John committed acts of domestic violence as defined by R.C. 3113.31. There was no evidence that Amy was injured in the altercation. The court found that John's acts of preventing her from calling the police and grabbing and chasing her, while physical, did not amount to threats of force against Amy. Amy never alleged that the children were in danger.

{¶8} The trial court entered the final judgment entry of divorce on November 10, 2010. The trial court made the following findings of fact and conclusions of law pertinent to John's assigned errors: (1) the parties lived beyond their economic means during their marriage; (2) both parties are guilty of financial misconduct; (3) Amy is to pay $300 per month in spousal support for five years for her improper handling of her bonuses in violation of the trial court's TRO;*fn1 (4) Amy is to pay $700 per month for five years for spousal support based on the income inequality; (5) all personal property and remaining marital assets are to be divided equally; (6) the parties are individually responsible for their own personal debt created during the pendency of the divorce proceedings; (7) the parties are to have equal parenting time with the children, although Amy is designated as the residential parent for school purposes; and (8) Amy is to pay child support in the amount of $510.21 per month if health insurance is provided. John timely appealed, raising six assignments of error. We will address each in turn.

{¶9} We review a trial court's determination in domestic relations cases under an abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142, 144, 541 N.E.2d 1028. The trial court must have discretion to equitably separate the married parties based on the facts of circumstances of each case. Id. Thus, "the term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.

{¶10} John's first assignment of error provides as follows: "The trial court erred and/or abused its discretion by adopting [Amy's] amended shared parenting plan, by ordering equal parenting time, and by designating [Amy] as the residential parent for school purposes." John argues that the court erred by deviating from the GAL's proposed shared parenting plan and additionally erred by not adopting John's proposed plan. His first assignment of error is without merit.

{¶11} "The allocation of parental rights and responsibilities are set forth in R.C. 3109.04, and the statute expresses a strong presumption that shared parenting is in the best interest of the child. The presumption in favor of shared parenting can be overcome, however, by evidence showing that shared parenting would not be in the child's best interest." Kong v. Kong, Cuyahoga App. No. 93120, 2010-Ohio-3180, ¶ 6. If each parent files a separate plan for shared parenting, the trial court must review the plans to determine whether either is in the best interest of the children. R.C. 3109.04(D)(1)(a)(ii). If neither plan is acceptable, the court may order each parent to submit revised plans. Id.

{¶12} R.C. 3109.04(F)(1) and (2) set "forth a number of nonexclusive factors to guide the court's discretion when deciding whether [the children's] best interests favor the adoption of a shared parenting plan." Kong, 2010-Ohio-3180, ¶ 7. Among the enumerated factors are the ability of the parents to cooperate and make joint decisions with respect to the children; the ability of each parent to encourage the sharing of love, affection, and contact between the children and the other parent; the geographic proximity of the parents to each other, as related to the practical considerations of shared parenting; and the recommendation of the GAL.

{¶13} In the current case, the trial court found that neither parent's shared parenting plan was in the best interest of the children, in part based on the GAL's recommendation that neither party should be the residential parent because that party would exclude the other from the children's lives; continuing the parenting-time arrangement in place during the divorce proceeding would give consistency to the children and minimize the interaction of the parents, in consideration of their acrimonious relationship; and since Amy's salary cannot support two overspending households, John would have to seek "gainful employment," thereby limiting his ability to care for the children full-time. The court also found that the GAL's plan promoted too much interaction between the parents and additionally disrupted the children's homework time.

{ΒΆ14} The trial court ordered the parties to submit revised plans pursuant to R.C. 3109.04(D)(1)(a)(ii). Amy ultimately submitted a plan in compliance with the trial court's request that gave each parent 50 percent of the parenting time and made her the residential parent solely for purposes of the children's schooling. John was living in the marital residence that was the subject of a foreclosure proceeding. John filed amended shared parenting plans that were largely similar to ...

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