Frost v. Frost (84 Ohio App. 3d 699, 1992)

John C. Young, Presiding Judge.

This matter is before this court upon the appeal of Robert E. Frost, appellant, from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations. Appellant and appellee, Jeannie Frost, were married in 1974 and subsequently a daughter, Erin (d.o.b. July 7, 1975), and a son, Peter (d.o.b. April 21, 1979), were born to them. After seventeen years of marriage, appellee filed for divorce. Thereafter, the parties submitted an agreed entry, dated September 13, 1990, giving “temporary permanent custody” of Erin to appellee and “temporary and permanent custody” of Peter to appellant. On January 14, 1991, appellee filed a motion requesting a change of custody for the parties’ son, Peter. Thereafter, in April 1991, appellee filed a motion for shared parenting. In May 1991, the trial court heard evidence on the issues of divorce and custody.

At the hearing, testimony was submitted from the court-appointed psychologist, Dr. Meers, Peter’s guardian ad litem, Marcia Zand, the plaintiffs adult daughter from a former marriage, and the parties themselves. The trial court also met with each child in camera to learn his or her wishes, respectively, as to custody. The court-appointed psychologist stated that, due to Peter’s severe behavioral problems, he recommended that custody of Peter remain with the appellant on the basis that appellant was better able to provide a structured environment and discipline for Peter at this point in Peter’s life. It was Dr. Meers’ opinion that appellee’s emotional problems prevented appellee from providing Peter with a structured environment and the discipline he needed to facilitate his own behavioral problems.

The trial court concluded in its August 12, 1991 judgment entry that both parties were entitled to a divorce and granted legal custody of both children to the wife. However, the trial court did not set forth a visitation schedule for the children with appellant, and reserved decision on that matter until the trial court was further advised by the court-appointed psychologist.

The remaining issues of child support, property division and spousal support were introduced at trial on November 12 and November 13, 1991. Appellant is self-employed and is the principal attorney in the law firm known as “Robert Frost & Associates.” His 1990 income tax form reflected income of $151,090. The record also reflects that his 1991 income at the time of trial in November 1991, as of October 31, was $92,000, and that appellant’s law firm has assets in excess of $200,000. Appellant’s premarital assets included cash, which he contributed as a $20,000 down payment to the purchase of the marital residence. Other premarital assets of appellant included a life insurance policy valued at $2,388.

Prior to her 1974 marriage to appellant, appellee was employed as a medical researcher. She has since been a homemaker and primary caretaker of the children, and has not been employed outside the home since the time she married appellant in 1974. Appellee is a manic depressive and, thus, suffers from periods of depression. Although the court-appointed psychologist testified that both parents were in the “normal range,” the record reflects that appellee copes with a borderline personality disorder. Because of her emotional difficulties, the record also reflects that appellee is not capable of sustaining full-time or part-time employment at present. The testimony of Dr. Meers also reflects that appellant was not capable of giving Peter the love or affection which he needed. Although Dr. Meers’ testimony appeared to be conflicting at times, it was his ultimate recommendation that it was in Peter’s best interest to be permanently placed in the custody of his father. At the time the divorce was filed, Peter expressed his desire to live with his father. Appellee agreed to this arrangement because of the severe problems she was experiencing in disciplining Peter. A few months later, Peter expressed his desire to return to live with his mother and sister because, he claimed, he hated his father.

The parties stipulated the values of certain assets, including bank accounts, $152,715 in bonds, $390,093 in retirement accounts, $495,278 in life insurance policies, $43,983 in stocks, and two automobiles, a $21,000 Mercedes and a $3,375 Oldsmobile, to be worth approximately $1,100,000. The marital residence was appraised in excess of $300,000 and is not encumbered by a mortgage. The trial court fixed the amount of $325,000 as the fair market value of the house. The family enjoyed an “above average” standard of living that included membership privileges at the Scioto Country Club, vacations, riding lessons, expensive clothes, dining out, and athletic events, among other things. In its February 20, 1992 journal entry, the trial court ordered appellant to pay child support in the amount of $825 per child, spousal support in the amount of $3,000 per month (to be reevaluated in May 1997), and a lump sum payment of $35,000 for attorney fees. The marital property was evaluated and distributed as follows:

“To Mrs. Frost To Mr. Frost

Frost & Assoc.

“residence ** $325,000 (Profit-sharing) $476,606

“Oldsmobile 3,375 Mercedes 21,000

“ah stock ** 2,801 Metropolitan Life Ins. 43,983

“11 cash accounts

(per Jt. A) ** 77,328 his I.R.A. 13,825

“ah bonds ** 390,093 Vanguard acct. 75,387

“her I.R.A. 4,847 cash, from excess in firm * 191,300

“cash, from excess

(in firm) * 18,700

Total $822,144 Total $822,101

" * represent ‘distributive awards’ per R.C. • 171(A)(1) and (E)(1), (2)

" ** Defendant to convey his interest therein to plaintiff within thirty (30) days of the date of this order." (Emphasis sic.)

After the trial court issued its February 20, 1992 judgment entry, appellant filed a motion for a new trial, which was overruled. Appellant filed a timely appeal and now asserts the following fifteen assignments of error as a result of the trial court’s August 16, 1991, February 20, 1992, and March 11, 1992 judgment entries:

“Assignment of Error No. 1:

“The trial court abused its discretion and made a decision against the manifest weight of the evidence when it designated the appellee wife as residential parent and legal custodian for the parties’ son.

“Assignment of Error No. 2:

“The trial court abused its discretion by allowing the child’s guardian ad litem to serve also as the child’s attorney when there was an obvious conflict between these two roles; and further to call the guardian ad litem/attorney as a witness without any notice to the parties.

“Assignment of Error No. 3:

“The trial court abused its discretion by entering a determination of custody when the court’s predecessor, in these same proceedings, already journalized an agreed entry between the parties as to permanent custody of Peter Frost.

“Assignment of Error No. 4:

“The trial court abused its discretion and made a decision against the manifest weight of the evidence in failing to award specific visitation to the appellant, effectively terminating visitation between the appellant and the children.

“Assignment of Error No. 5:

“The trial court abused its discretion and made a decision against the manifest weight of the evidence in ordering a child support obligation contrary to the Ohio child support guidelines and by failing to consider the income available to the appellee and the children.

“Assignment of Error No. 6:

“The trial court abused its discretion and decided against the weight of the evidence by using stale evidence in its determination of the appellant’s income for purposes of a child support obligation.

“Assignment of Error No. 7:

“The trial court abused its discretion and decided against the manifest weight of the evidence by failing to award an equal or equitable property division.

“Assignment of Error No. 8:

“The trial court abused its discretion and decided against the manifest weight of the evidence by failing to properly and fully consider the differing tax consequences between assets on which taxes have already been paid versus assets on which the payment of taxes has been deferred.

“Assignment of Error No. 9:

“The trial court abused its discretion and decided against the manifest weight of the evidence by finding that the husband had $210,000.00 in separate property available for use as a ‘distributive award’ when a large portion of these funds were [sic ] being held in trust for third-party clients or being held for operating expenses of his law film.

“Assignment of Error No. 10:

“The trial court abused its discretion and decided against the manifest weight of the evidence by dividing the husband’s separate property as though it were marital property and erroneously labeling such division as a ‘distributive award’ and further erred in holding that any distributive award was needed to make an equal or equitable property division award.

“Assignment of Error No. 11:

“The trial court abused its discretion and decided against the weight of the evidence by awarding the appellee additional sums for spousal support when she has the ability to be self-supporting; and by refusing to consider the investment and passive income of the appellee.

“Assignment of Error No. 12:

“The trial court abused its discretion and decided against the weight of the evidence by failing to fix a date certain for the termination of any award of spousal support and reserving jurisdiction to review the spousal support award after five years.

“Assignment of Error No. 13:

“The trial court abused its discretion and decided against the weight of the evidence by using stale evidence in its determination of the appellant’s income for purposes of a spousal support obligation.

“Assignment of Error No. 14:

“The trial court abused its discretion and decided against the weight of the evidence by awarding the appellee additional sums for attorney fees when she has sufficient funds of her own for such expense.

“Assignment of Error No. 15:

“The trial court abused its discretion and decided against the manifest weight of the evidence by refusing to fully acknowledge the appellant’s pre-marital assets.”

In the first and third assignments of error, appellant asserts that the trial court erred when it awarded legal custody of the parties’ son to appellee when the prior September 12, 1990 agreed entry awarded temporary and permanent custody of the parties’ son to appellant. The September 12, 1990 agreed entry states as follows, in pertinent part:

“Upon application and for good cause shown, the Court finds that the parties have reached an agreement with regard to both temporary and permanent custody of the parties minor children.