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Katz v. Katz

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 15, 2017


         Civil 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 L.P.A.

          ATTORNEY FOR APPELLEE Marshall J. Wolf Wolf and Akers


          BEFORE: Laster Mays, J., McCormack, P.J., and Blackmon, J.



         {¶1} 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.

         I. Background and Facts

         {¶2} Appellant and Adam K. Katz ("appellee") were married March 20, 2004. Two children were born as issue of the marriage.

         {¶3} 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 conflict.

         {¶4} 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 proceeding followed.

         {¶5} 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 coordinator.

         {¶6} 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 recommendation.

         {¶7} 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.

         {¶8} 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 liabilities ("Decision").

         {¶9} 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.

         {¶10} 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 providers.

         {¶11} 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.

         {¶12} 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.

         II. Assignments of Error

         {¶13} 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.

         III. Standard of Review

         {¶14} 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.

         IV. Analysis

         A. 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.

         {¶15} 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.

         {¶16} 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.

         {¶17} 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 R.C. 3109.051.

         {¶18} 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 parents."

         {¶19} 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.

         {¶20} 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.)

         {¶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.[1]

         {¶22} 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.

         {¶23} 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.

         {¶24} 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 ...

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