Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division Case No. DR-12-341664.
ATTORNEY FOR APPELLANT Gregory S. Costabile Buckley King
ATTORNEY FOR APPELLEE Marshall J. Wolf Wolf and Akers
ATTORNEY FOR VICKIE L. JONES, GUARDIAN AD LITEM John H.
BEFORE: Laster Mays, J., McCormack, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE
Defendant-appellant, Nicole Katz ("appellant"),
appeals an adverse determination to the outcome she sought in
the Cuyahoga County Court of Common Pleas, Division of
Domestic Relations, relating to division of property, debt,
spousal support, child support, custody, and attorney fees.
We affirm the trial court's decision.
Background and Facts
Appellant and Adam K. Katz ("appellee") were
married March 20, 2004. Two children were born as issue of
Marital conflict ensued and, in 2008, as the result of a
heated domestic confrontation, appellee was charged with
domestic violence and appellant pled guilty to disorderly
conduct. In fact, as established during the divorce trial,
the relationship was often volatile and fraught with
On April 27, 2012, appellee filed a complaint for divorce
shortly after vacating the family home. Appellant
counterclaimed on June 29, 2012. A long, contentious divorce
In May 2013, the Office of Family Conciliation Services of
the Cuyahoga County Court of Common Pleas Domestic Relations
Division issued a Forensic Family Evaluation Report
("FFE Report"). The FFE Report recommended
continuation of the shared parenting plan schedule with joint
medical appointment schedules, and oversight by a parenting
Appellant filed a motion to adopt the shared parenting plan
on June 11, 2013. Trial was instituted before the magistrate
on July 15, 2013, and lasted for 23 days. Testimony included:
(1) descriptions of appellant's anger issues and lack of
interpersonal skills; (2) appellant's allegations of
inappropriate behavior (texting) between appellee, a swim
coach at a prominent private school, and a student, resulting
in appellee's resignation; (3) appellant's negative
categorizations of appellee and his family members, such as
labeling a paternal grandparent as a child abuser and
appellee as a pedophile. A number of telephone recordings
between the parties were introduced into evidence. Expert
opinions by psychologists regarding parenting and custody
were also entertained, as well as the GAL's report and
The trial concluded March 20, 2014. At the close of trial,
pursuant to the February 6, 2014 agreed entry, the parties
submitted affidavits and exhibits on the outstanding
financial and property issues. Written closing arguments and
proposed findings of fact and conclusions of law were
submitted on April 11, 2014.
On October 7, 2014, the magistrate issued a 128-page decision
granting the divorce, designating appellee as the sole
residential parent and legal custodian of the children,
awarding child support to appellee, and allocating assets and
Appellant's preliminary objections to the Decision were
filed October 20, 2014, accompanied by the request for the 25
volume, 3, 600 page transcript. On November 5, 2014, appellee
and the guardian ad litem ("GAL") were granted an
interim order, over appellant's objections, moving
forward with the ordered parenting plan in the Decision and
suspending appellee's pretrial temporary child support
payments. On November 15, 2014, the trial court denied
appellant's motion to set aside the interim order.
The transcript was filed on March 2, 2015; on April 23, 2015,
with leave of court, appellant filed supplemental objections
to the Decision, on May 14, 2015, which were opposed by
appellee. On August 18, 2015, an emergency motion was granted
without a hearing, directing that appellant refrain from
interfering with the children's school and health care
On October 1, 2015, the trial court issued a judgment entry
overruling the majority of appellant's objections to the
magistrate's "meticulous, * * * well-reasoned and
thoughtful opinion." The trial court sustained
appellant's objection to the finding that the support
arrearage could not be determined as of the date of the
Decision; however, the court determined that the Decision
correctly stated the amount of arrearage as of February 3,
2014, and that the arrearage was preserved as of that date.
The trial court agreed that the gains, losses, and survivor
benefits should be included in the award, and corrected the
entry on these issues.
A sua sponte nunc pro tunc judgment entry was issued on
October 7, 2015, correcting the entry to mirror the Decision,
and including requisite decree language adopting the
Decision. This appeal was filed on November 2, 2015.
Assignments of Error
Appellant offers 11 assigned errors, recited, and addressed
below. We preface our analysis by acknowledging that several
assignments of error fail to cite legal authority required by
App.R. 12(A)(2) and 16(A)(7), entitling this court to
disregard those errors. Thornhill v. Thornhill, 8th
Dist. Cuyahoga No. 92913, 2009-Ohio-5569, ¶ 11.
Citta-Pietrolungo v. Pietrolungo, 8th Dist. Cuyahoga
No. 85536, 2005-Ohio-4814, ¶ 35, citing Cardone v.
Cardone, 9th Dist. Summit Nos. 18349 and 18673, 1998
Ohio App. LEXIS 2028 (May 6, 1998) (it is not this
court's responsibility to create a party's argument
and support it). However, due to the highly contentious
nature of the action, we find it equitable to summarily
entertain the errors.
Standard of Review
We review this divorce proceeding for an abuse of discretion:
When reviewing the propriety of a trial court's
determination in a domestic relations case, an appellate
court generally applies an abuse of discretion standard.
Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d
1028 (1989). This same standard is used in reviewing orders
relating to alimony and a division of marital property.
Id., citing Blakemore v. Blakemore, 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1983), and Martin v.
Martin, 18 Ohio St.3d 292, 480 N.E.2d 1112 (1985).
Likewise, a trial court's decision regarding a child
support obligation will not be reversed on appeal absent an
abuse of discretion. Pauly v. Pauly, 80 Ohio St.3d
386, 390, 686 N.E.2d 1108 (1997). "Since it is axiomatic
that a trial court must have discretion to do what is
equitable upon the facts and circumstances of each case, it
necessarily follows that a trial court's decision in
domestic relations matters should not be disturbed on appeal
unless the decision involves more than an error of
judgment." (Internal citation omitted.) Booth
at ¶ 144. So long as the decision of the trial court is
supported by some competent, credible evidence going to all
the essential elements of the case, this court will not
disturb it. Masitto v. Masitto, 22 Ohio St.3d 63,
66, 488 N.E.2d 857 (1986).
Gray v. Gray, 8th Dist. Cuyahoga No. 95532,
2011-Ohio-4091, ¶ 7.
The trial court erred and abused its discretion when
it designated appellee-plaintiff as sole residential parent
and legal custodian and failed to adopt the filed proposed
shared parenting plan.
Appellant's first argues that the trial court's
failure to adopt the proposed shared parenting plan filed in
this case is in error. This court does not agree.
The discretion of the trial court in a custody determination
is broad, though not absolute. The court's analysis
"must be guided by the language set forth in R.C.
3109.04." In re M.S., 8th Dist. Cuyahoga No.
99563, 2013-Ohio-4043, ¶ 15, citing Miller v.
Miller, 37 Ohio St.3d 71, 74, 523 N.E.2d 846 (1988).
This court's role is to "'review the record to
determine whether there is any evidence in support of the
prevailing party.' Sallee v. Sallee, 142 Ohio
App.3d 366, 370, 755 N.E.2d 941 (12th Dist.2001)."
In re M.S. at ¶ 16.
There is substantial evidence in the record supporting the
trial court's custody determination pursuant to R.C.
3109.04(F). The Decision sets forth detailed, well-supported
findings on each of the requisite factors for determining the
best interests of the children for allocating parental
responsibilities under R.C. 3109.04(F)(1), shared parenting
governed by 3109.04(F)(2), and parenting time pursuant to
The GAL recommended that appellee be granted sole custody.
After an in camera interview with the children, the court
concluded "[i]t is not in the best interest of the
children to determine their wishes and concerns because of
the following special circumstances: their young age, their
lack of maturity and their emotional attachment to both
Appellee's expert witness, Dr. Steven Neuhaus ("Dr.
Neuhaus"), a licensed clinical and forensic
psychologist, met with the parties twice and issued reports
in December 2012 and July 2013. Dr. Neuhaus also reviewed the
psychological report prepared by Dr. Frank Ezzo ("Dr.
Ezzo"), the trial court's forensic and clinical
psychologist, proffered as a witness by appellant.
Dr. Neuhaus determined that,
[I]n his expert opinion based upon his investigation, that
Defendant/Wife was predictably unpredictable while kind and
nurturing. This observation and assessment was considered to
be worrisome by the witness. As a part of the witness's
investigation, he listened to numerous recorded phone-calls
between the Parties. His reaction to these recordings was
that Defendant/Wife was an enraged parent who was unable to
control her rage which in turn created an unhealthy
foundation to parent the children.
(Decision, p. 21.)
Dr. Neuhaus opined that appellee was more "predictable
and stable." He also expressed concern about
appellant's impact on the minor children:
[The] Wife did not allow the children to be innocent.
Instead, she made them afraid to be disloyal to her as the
witness observed from his interactions with the children.
Furthermore, Defendant/Wife attempted to make them victims of
physical abuse by alleging the paternal grandmother harmed
them even though independent investigators all found the
allegations to be unsubstantiated. The witness reported that
Defendant/Wife continued to find fault in the independent
professionals such as counselors, teachers, school
administrators, and police stating that they all failed the
children. Ultimately, the witness stated that the children
live in a minefield.
Id. at p. 23.
Dr. Ezzo proffered a single report in May 2013 determining
that shared parenting was a viable option, but
cross-examination revealed a number of negative indicators
for shared parenting, such as appellant's manifestation
of "narcissistic/talionic rage, " defined as
"revenge and rage as intense episodes of anger."
Appellant's recorded statements to appellee that she
wanted him dead and his mother to die of a massive coronary
exemplify this behavior.
Dr. Ezzo also confirmed that aspects of appellant's
psychological test results did not support shared parenting,
indicating: (1) serious impairment of occupational and social
functions; (2) thought dysfunction, suspicion, and difficulty
with interpersonal relationships; and (3) anger and
dependence issues. Appellant used anti-anxiety medication to
"help take the edge off." Dr. Ezzo also conceded
that much of the information that he relied on in support of
shared parenting was provided to him by appellant.
Following a comprehensive analysis of statutory factors, the
trial court concluded:
For the foregoing reasons, Defendant/Wife's plan for
exercise of shared parenting is not in the best interest of
the children and is not approved. The court denies the
parent's motion requesting shared parenting. It is in the
best interest of the minor children to allocate the parental
rights and responsibilities for the care of the children
primarily to Plaintiff/Husband, and designate him as
residential parent and legal custodian of the children.
It is in the best interest of the minor children for
Defendant/Wife to have limited yet consistent contact with
the minor children because she has established a consistent
history of interfering with Plaintiff/Husband's parenting
time, poisoning the children to act in a negative way toward
their Father and paternal relatives, disrupting the
children's enjoyment of activities, attempting to poison
others to think negatively about ...