Ohio Appellate Reports
Unpublished
GALLOWAY v. KHAN, Unpublished Decision (12-12-2006)
2006-Ohio-6637 Gloria Galloway, Plaintiff-Appellant, v.
Nadeem Khan, Defendant-Appellee. No. 06AP-140 (C.P.C. No.
03DR-11-4519). Court of Appeals of Ohio, Tenth District.
December 12, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] APPEAL from the Franklin County Court of
Common Pleas, Division of Domestic Relations.
Isaac Brant Ledman & Teetor, LLP, and Randy S. Kurek, for
appellant.
Edward F. Whipps & Associates, and Bobbie Corley O’Keefe,
for appellee.
Frederick Meister, Guardian ad litem.
OPINION
BRYANT, J.
{¶ 1} Plaintiff-appellant, Gloria Galloway, appeals
from a judgment of the Franklin County Court of Common
Pleas, Division of Domestic Relations, that granted a
divorce, terminating the marriage between plaintiff and
defendant-appellee, Nadeem Khan. Because the trial court
committed no reversible error, we affirm.
{¶ 2} Plaintiff and defendant were married on April
21, 1990. Two sons were born as issue of the marriage,
Nadeem Khan, Jr., born May 6, 1993, and Corey Khan, born
November 26, 1998. Both parties are physicians employed at
Children’s Hospital in Columbus, Ohio. Plaintiff, a
pediatric neurologist, earns approximately $158,000 per
year; defendant, a pediatric critical care specialist,
earns approximately $184,000 per year.
{¶ 3} Plaintiff filed a complaint for divorce on
November 25, 2003 on grounds of extreme cruelty, gross
neglect of duty, and incompatibility; defendant filed an
answer and counterclaim on December 4, 2003 seeking a
divorce from plaintiff on the same grounds. Upon the
parties’ separate motions, the trial court issued
restraining orders enjoining the parties from, among other
things, withdrawing funds from bank accounts other than
checking accounts.
{¶ 4} The trial court appointed a guardian ad litem
(“GAL”) for the parties’ children and through its
magistrate issued temporary orders. As relevant here, the
temporary orders required the parties to pay their own
post-separation credit card debt, required plaintiff to pay
the mortgage on the marital residence, and required
defendant to pay child support to plaintiff in the amount
of $1,050 per month plus processing charge. Upon
plaintiff’s motion, the temporary orders were modified to
increase defendant’s child support obligation to $1,986 per
month plus processing charge, retroactive to February 1,
2004, the date the parties separated. Both parties filed
motions for shared parenting, along with proposed shared
parenting plans.
{¶ 5} Following a four-day trial, the trial court
filed a judgment entry/decree of divorce on January 30,
2006. The trial court granted the parties a divorce,
divided the marital property, allocated parental rights and
responsibilities, and ordered defendant to pay child
support in the amount of $700 per child per month plus
processing charge.
{¶ 6} Plaintiff timely appeals, assigning eleven
errors:
1. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
DISCRETION, AND RENDERED A DECISION WHICH WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN FAILING TO DIVIDE THE
MARITAL ASSETS AND MARITAL LIABILITIES EQUALLY.
2. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
DISCRETION, AND RENDERED A DECISION WHICH WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN ORDERING THAT THE
PROCEEDS FROM THE SALE OF THE JOHNSTOWN ROAD PROPERTY BE
DIVIDED EQUALLY.
3. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
DISCRETION, AND RENDERED A DECISION WHICH WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN DIVIDING THE FUTURE NET
EQUITY IN THE MARITAL RESIDENCE EQUALLY.
4. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
DISCRETION, AND RENDERED A DECISION WHICH WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN FAILING TO CONSIDER
MARITAL FUNDS EXPENDED, WHILE THE DIVORCE WAS PENDING, IN
VIOLATION OF A RESTRAINING ORDER.
5. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
DISCRETION, AND RENDERED A DECISION WHICH WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN FAILING TO CONSIDER
WIFE’S ATTORNEY’S FEES WHICH EXISTED AS OF THE DATE OF
TRIAL.
6. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
DISCRETION, AND RENDERED A DECISION WHICH WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN FAILING TO REIMBURSE
WIFE FOR THE ECONOMIC MISCONDUCT ON THE PART OF HUSBAND.
7. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
DISCRETION, AND RENDERED A DECISION WHICH WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN NOT ORDERING HUSBAND TO
PAY THE CHILD SUPPORT ARREARAGE FROM THE NET PROCEEDS FROM
THE SALE OF THE FORMER MARITAL RESIDENCE.
8. THE TRIAL COURT ABUSED ITS DISCRETION AND RENDERED A
DECISION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN DETERMINING THE AMOUNT OF CHILD SUPPORT TO BE
PAID BY DEFENDANT-APPELLEE.
9. THE TRIAL COURT ABUSED ITS DISCRETION AND RENDERED A
DECISION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE IN DETERMINING THE ALLOCATION OF PARENTAL RIGHTS
AND RESPONSIBILITIES, AND IN ADOPTING HUSBAND’S SHARED
PARENTING PLAN.
10. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS
DISCRETION, AND RENDERED A DECISION WHICH WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN ALLOWING HUSBAND TO
REMOVE THE MINOR CHILDREN TO PAKISTAN.
11. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
A DIVORCE TO DEFENDANT, WHEN THERE WAS NO CORROBORATING
EVIDENCE, AND NO AMENDMENTS TO THE PLEADINGS TO CONFORM TO
THE EVIDENCE WHICH WAS PRESENTED.
I. First Assignment of Error
{¶ 7} Plaintiff’s first six assignments of error
generally contend the trial court erred in failing to
divide the marital assets and liabilities equally; we will
address plaintiff’s specific arguments in turn.
{¶ 8} When dividing marital assets and liabilities,
a domestic relations court must determine what constitutes
marital property and what constitutes separate property; it
then must divide the marital and separate property
equitably between the spouses in accordance with R.C.
3105.171; see R.C. 3105.171(D) (providing that the court
generally disburses a spouse’s separate property to that
spouse). The court must divide the marital property equally
unless an equal division would be inequitable. R.C.
3105.171(C)(1); see, also, Neville v. Neville, 99 Ohio
St.3d 275, 2003-Ohio-3624, at ¶ 5. In addition, the
trial court must make written findings of fact to support
its determination that the marital property has been
equitably divided and must “specify the dates it used in
determining the meaning of `during the marriage.'” R.C.
3105.171(G).
{¶ 9} A domestic relations court enjoys broad
discretion in fashioning a division of marital property,
and its decision will be not reversed absent an abuse of
that discretion. Kaechele v. Kaechele (1988), 35 Ohio St.3d
93, 94; Middendorf v. Middendorf (1998), 82 Ohio St.3d 397,
406. The term “abuse of discretion” connotes more than an
error of law or judgment; rather, it implies that the
court’s attitude was unreasonable, arbitrary, or
capricious. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219. A reviewing court may not substitute its judgment
for that of the trial court unless, considering the
totality of the circumstances, the trial court abused its
discretion. Holcomb v. Holcomb (1989), 44 Ohio St.3d 128,
131. A court should not review discrete aspects of a
property division out of the context of the entire award.
Baker v. Baker (1992), 83 Ohio App.3d 700, 702. Rather, a
court should consider whether the trial court’s disposition
of marital property as a whole resulted in a property
division which was an abuse of discretion. Id.
{¶ 10} Plaintiff’s first assignment of error
challenges the trial court’s decision to make the parties
responsible for their separate post-separation credit card
debt. In its judgment entry/decree of divorce, the trial
court adopted a Stipulation the parties filed on October 5,
2005. As part of the Stipulation, the parties agreed that
the duration of the marriage was from the date the parties
were married, April 21, 1990, to the date of the final
hearing, September 7, 2005. The Stipulation also included
an “Agreed Asset and Liability Statement” which not only
assigned a value to each of the marital assets and
liabilities but also allocated those assets and liabilities
between the parties.
{¶ 11} The trial court adopted the valuations set
forth in the stipulated asset and liability statement but
rejected plaintiff’s request to divide her post-separation
credit card debt and include it on the balance sheet. The
trial court instead determined that each party would be
responsible for his or her own post-separation credit card
debt. Plaintiff contends the court’s determination was
tantamount to using a de facto termination date, the
February 1, 2004 separation date, for the credit card debt
while using the date of final hearing for the remaining
assets and liabilities in contravention of the Stipulation
and R.C. 3105.171(A)(2) and (G). Plaintiff further asserts
the trial court did not support its unequal division of the
marital property with factual findings as required by R.C.
3105.171(G).
{¶ 12} While plaintiff contends the trial court
incorrectly used the separation date to value the parties’
credit card debt, her argument actually contests the trial
court’s allocation of the parties’ liabilities. The
magistrate issued a temporary order requiring the parties
to pay their own credit card debt during the pendency of
the divorce action. The trial court apparently incorporated
that decision into her final order, but plaintiff never
objected to the magistrate’s temporary order. Plaintiff
thus waived her argument by failing to move to either set
aside or modify the magistrate’s temporary order.
{¶ 13} Civ.R. 53(C)(3)(a) permits a magistrate to
enter orders without judicial approval in, among other
things, hearings under Civ.R. 75(N). Spier v. Spier,
Mahoning App. No. 05 MA 26, 2006-Ohio-1289, at ¶ 55;
see, also, Shattuck v. Shattuck, 153 Ohio App.3d 622,
2003-Ohio-4230, at ¶ 31 (holding that Civ.R. 75[N]
impliedly permits a magistrate to issue a temporary order
allocating the parties’ debts while the divorce is
pending). If a party is unsatisfied with a magistrate’s
order entered under Civ.R. 53(C)(3)(a), that party may move
to set the order aside, stating with particularity the
party’s objections, within ten days after the magistrate’s
order is entered. Spier, supra, citing Civ.R. 53(C)(3)(b).
A party also may move to modify a temporary order entered
under Civ.R. 75(N). Id., citing Civ.R. 75(N)(2).
{¶ 14} A party who neither moves to set aside an
order entered under Civ.R.53(C)(3)(a), nor moves to modify
that order, cannot raise any issue which could have been
addressed in that order at the final divorce hearing.
Spier, at ¶ 56, citing Douglas v. Douglas [sic]
(1996), 110 Ohio App.3d 615, 621. In this case, the
magistrate’s temporary order required that each party pay
his or her individual debts. Although plaintiff moved to
modify the temporary order pursuant to Civ.R. 75(N)(2), her
request was limited to modification of temporary child
support. Accordingly, plaintiff waived any argument
regarding the allocation of the parties’ post-separation
credit card debt.
{¶ 15} Moreover, the trial court did not abuse its
discretion in allocating the post-separation credit debt.
The trial court has discretion to make an equitable
division of martial assets and liabilities when an equal
division would be inequitable, R.C.3105.171(C)(1), but it
must make written findings of fact to support its
determination that the marital property has been equitably
divided. R.C. 3105.171(G).
{¶ 16} Here, the Stipulation the trial court adopted
includes valuations of the assets and liabilities per the
parties’ agreement, including the parties’ credit card
debt. Nothing indicates the trial court wavered from those
valuations. To the contrary, the trial court “approve[d]
the Stipulation insofar as the amount of each credit card
debt is concerned.” (Judgment Entry/Decree of Divorce, at
8.) A trial court does not abuse its discretion when it
uses the values the parties provide to determine the value
of marital property. Drake v. Drake, Butler App. No.
CA2001-10-247, 2002-Ohio-6106, at ¶ 7. Noticeably
absent from the Stipulation, however, is an agreed division
of those assets and liabilities. Instead, paragraph 11 of
the Stipulation leaves to the discretion of the trial court
the division, among other things, of credit card debt.
{¶ 17} As the trial court noted, plaintiff testified
she had no credit card debt prior to the time the parties
separated; defendant testified he had minimal credit card
debt; and both parties maintained and paid their own credit
card balances during the marriage. Plaintiff testified she
incurred the credit card debt because her expenses exceeded
her income. Defendant, however, testified he believed
plaintiff had not reduced her spending since the
separation, characterizing plaintiff’s post-separation
credit card spending as “excessive.” (Tr. Vol. II, 337.)
{¶ 18} The trial court determined that each party
should be solely responsible for his or her post-separation
credit card debt, since each party had sufficient income to
pay the debt and could apply a portion of the home equity
proceeds to it. In support, the trial court noted that
plaintiff received child support and was due to receive a
large child support arrearage payment. Moreover, the court
supported its determination with written findings of fact
as required by R.C. 3105.171(G). Insofar as the trial
court’s allocation of credit card debt renders the division
of assets and liabilities unequal, the trial court
explained in writing its rationale for the division, and we
cannot find that such allocation is inequitable or an abuse
of discretion. Plaintiff’s first assignment of error is
overruled.
II. Second Assignment of Error
{¶ 19} By the second assignment of error, plaintiff
contends the trial court erred in dividing the proceeds of
the Johnstown Road property equally between the parties. In
November 1999, the parties purchased a residence on
Johnstown Road in New Albany, Ohio. Plaintiff produced a
copy of the general warranty deed, which lists plaintiff,
defendant, and plaintiff’s mother as owners of the
property. Plaintiff’s mother lived in the residence from
November 1999 to November 2003.
{¶ 20} Shortly after the divorce was filed, the
parties sold the property. According to the parties’
Stipulation, the sale generated net proceeds of $10,268,
which were placed in plaintiff’s counsel’s trust account.
Relying largely on the fact her mother’s name appears on
the deed, plaintiff requested that the trial court divide
the proceeds in one-third increments between her,
defendant, and her mother per the stipulated asset and
liability statement. The trial court rejected plaintiff’s
request and divided the proceeds equally between plaintiff
and defendant.
{¶ 21} Plaintiff argues not only that the trial
court’s decision is contrary to the stipulated asset and
liability statement, but that the trial court abused its
discretion in so dividing the proceeds. The Stipulation,
however, does not include an agreed division of that
account, but gives the trial court discretion to divide the
sale proceeds. The trial court’s decision is not contrary
to the stipulated asset and liability statement.
{¶ 22} Further, the trial court did not abuse its
discretion in refusing to allocate a portion of the net
proceeds from the sale of the property at issue to
plaintiff’s mother. Plaintiff’s mother is not a party to
the action, and the trial court was not required to address
any interest she may have in the property or to award her
proceeds from the sale of the marital asset. Instead, the
trial court appropriately allocated the property between
the only parties to the action, determining their
respective rights in the property, but neither recognizing
nor negating any interest plaintiff’s mother may have in
the property, an interest plaintiff’s mother may pursue if
she chooses. The second assignment of error is overruled.
See Donnelly v. Donnelly, Green App. No. 2002-CA-53,
2003-Ohio-1377, at ¶ 42 (stating that “[i]n the
absence of other parties as third party defendants, the
trial court’s only obligation was to divide the assets
equitably between the parties”).
III. Third Assignment of Error
{¶ 23} Plaintiff’s third assignment of error
contends the trial court erred in equally dividing the
future net equity in the marital residence. Plaintiff
argues that since she paid the mortgage payments on the
marital residence during the pendency of the divorce and is
required to continue making those payments until the
residence is sold, defendant unfairly receives the benefit
of those payments to reduce the principal balance on the
mortgage. Plaintiff contends that by awarding defendant
one-half of the net equity from the sale of the residence,
the trial court valued the marital debt, in the form of the
mortgage, on a date after trial. Plaintiff asserts the
trial court should have “frozen” defendant’s interest in
the net equity in the marital residence as of the date of
trial.
{¶ 24} As in her first assignment of error,
plaintiff purports to dispute valuation dates, when in
reality she contests the trial court’s allocation of
marital assets. As was true in her first assignment of
error, a magistrate’s temporary order was entered, this one
requiring plaintiff to pay the mortgage on the marital
residence but not specifying whether she would receive
credit for those payments. Because plaintiff moved to
modify that order only as to child support, plaintiff
waived her contention that she should receive credit for the
mortgage payments on the marital residence made while the
divorce was pending. Spier; see, also, Shattuck, supra;
Stan v. Stan, Preble App. No. CA2003-01-001,
2003-Ohio-5540, at ¶ 36.
{¶ 25} Further, plaintiff’s argument fails to
acknowledge that she had exclusive use of the marital
residence since the parties separated in February 2004,
while defendant incurred expenses in obtaining and
maintaining a separate residence for himself and the
children. See Stacy v. Stacy, Ashtabula App. No.
2004-A-0076, 2005-Ohio-5289, at ¶ 36 (concluding
trial court did not abuse its discretion in not awarding
husband reimbursement for the portion of mortgage payments
attributable to principal and interest, as husband had
exclusive use of the premises during the pending divorce
litigation, and the wife had to maintain a separate
residence); Patridge v. Matthews (Feb. 20, 2001), Brown
App. No. CA2000-04-007 (determining trial court did not
abuse its discretion in failing to credit wife with
mortgage payments she made on the marital residence after
the parties’ separation, as the wife had the benefit of
living in the house, while the husband did not).
Accordingly, the court here did not abuse its discretion in
failing to credit plaintiff with the mortgage payments she
made during the parties separation and will make until the
house is sold. Thus, the third assignment of error is
overruled.
IV. Fourth and Sixth Assignments of Error
{¶ 26} Plaintiff’s fourth and sixth assignments of
error contend the trial court erred in failing to find that
defendant engaged in financial misconduct. R.C.
3105.171(E)(3) provides that “[i]f a spouse has engaged in
financial misconduct, including, but not limited to, the
dissipation, destruction, concealment, or fraudulent
disposition of assets, the court may compensate the
offended spouse with a distributive award or with a greater
award of marital property.” A “distributive award” is
defined as “any payment or payments, in real or personal
property, that are payable in a lump sum or over time, in
fixed amounts, that are made from separate property or
income, and that are not made from marital property.” R.C.
3105.171(A)(1). The burden of proving financial misconduct
is on the complaining party. Mantle v. Sterry, Franklin
App. No. 02AP-286, 2003-Ohio-6058, at ¶ 31, citing
Jacobs v. Jacobs, Scioto App. No. 02CA2846, 2003-Ohio-3466,
at ¶ 25. The trial court has discretion in
determining whether a spouse committed financial
misconduct. Id., citing Babka v. Babka (1992), 83 Ohio
App.3d 428 and Swartz v. Swartz (1996), 110 Ohio App.3d
218.
{¶ 27} Financial misconduct arises in circumstances
where one spouse engages in some type of knowing wrongdoing
and involves some form of profit or interference with
another’s property rights. Mantle, supra. As examples,
“[t]his court has affirmed findings of financial misconduct
in cases where a party has violated the court’s restraining
orders, dissipated marital assets without the knowledge or
permission of the other party, stolen equipment, inventory
and records of the party’s business so as to interfere with
the continued operation of the business, cashed an
insurance check and used all of the money for the party’s
own purposes, and sold stock owned by the other party,
without the other party’s knowledge or permission.” Id.
(Citations omitted).
{¶ 28} Plaintiff’s financial misconduct argument is
two-fold. Plaintiff first contends that defendant committed
financial misconduct when he withdrew funds from his own
savings account to pay legal fees. The trial court issued
restraining orders enjoining the parties from withdrawing
funds from bank accounts other than checking accounts. At
that time, defendant had $10,321.79 in a savings account
solely in his name and derived from his own income.
Defendant testified that, during the pendency of the
divorce, he withdrew most of the funds from the savings
account to pay his legal fees and was not aware that doing
so violated the restraining order The trial court
determined that although the savings account was a marital
asset, defendant did not engage in financial misconduct in
withdrawing the funds because defendant was entitled to
fund his defense to plaintiff’s complaint.
{¶ 29} The weight of the evidence and credibility of
witnesses are issues left to the sound discretion of the
trial court. White v. White, Gallia App. No. 03CA11,
2003-Ohio-6316, at ¶ 15. The underlying rationale is
that the trier of fact is better situated than an appellate
court to view the witnesses and to observe their demeanor,
gestures, and voice inflections and to use those
observations to weigh and assess credibility. Id.
Accordingly, the trier of fact is free to believe all,
part, or none of the testimony of any witness who appears
before it. Id.
{¶ 30} The trial court apparently believed
defendant’s assertion that he was not aware he violated the
restraining order in removing funds from his savings
account to pay his legal fees. Even assuming defendant’s
actions amounted to financial misconduct, the General
Assembly’s use of the term “may” in R.C. 3105.171(E)(3)
indicates the court has discretion to determine whether to
compensate a party for the financial misconduct of the
opposing party. Peterson v. Peterson, Ashland App. No.
02COA059, 2003-Ohio-4189, at ¶ 46. On these facts,
we cannot conclude that the trial court abused its
discretion in its determination. See, e.g., Schneider v.
Schneider (Mar. 29, 1999), Brown App. No. CA 98-03-007
(holding that trial court did not abuse its discretion in
failing to find wife engaged in financial misconduct when
she removed funds from the parties’ joint checking and
savings accounts in violation of a restraining order, where
she used a portion of the funds to pay legal fees).
{¶ 31} Plaintiff also contends defendant engaged in
financial misconduct by spending over $30,000 of marital
funds from September 2003 through March 2005 on an
extra-marital affair. To substantiate her claim, plaintiff
submitted a detailed summary of defendant’s expenditures
for gifts, flowers, trips, hotels, restaurants, theater
tickets and “other outings” purportedly in connection with
the affair. Plaintiff testified that in compiling the
exhibit, she reviewed defendant’s credit card and bank
statements in an effort to determine expenditures that were
not attributable to the children, the family, or defendant
personally. More particularly, plaintiff testified she
compared the date of the expenditure as it appeared on
defendant’s credit card or bank statement with the dates
defendant was with the children or was scheduled to work.
When the expenditure did not correspond with those dates,
plaintiff attributed the expense to the extra-marital
affair.
{¶ 32} Defendant testified and presented documentary
evidence establishing that plaintiff’s methodology was not
accurate, as it did not take into account that debit card
expenditures on a bank statement often reflect a date other
than that on which the debt actually was incurred. Further,
defendant testified and produced documentary evidence that
the vast majority of the expenditures listed in plaintiff’s
exhibit were for activities other than his extra-marital
affair, including vacations, outings and dinners with the
children, dinners and outings with friends or colleagues,
charitable contributions, automobile repairs, gifts for
friends and colleagues, business trips, and a vacation to
Pakistan to visit family. Defendant admitted, however, that
he could not refute all of the expenditures listed on
plaintiff’s Exhibit 19A and admitted he spent $3,735.22 on
activities involving his girlfriend.
{¶ 33} After hearing the testimony of both parties
and examining the evidence submitted, the trial court
apparently afforded more weight to defendant’s evidence
than to plaintiff’s. Indeed, the trial court determined
that “[plaintiff’s] fastidious methodology of determining
[defendant’s] girlfriend expenses was neither accurate, nor
logical and resulted in a largely inflated conclusion.”
(Judgment Entry, at 11.) The trial court further noted that
defendant admitted to spending $3,735 on activities
involving his girlfriend, most of which were incurred after
the parties separated, and he assumed responsibility for
those expenses by paying his own credit card debt. In light
of its assessment of the evidence, the trial court did not
abuse its discretion in ordering defendant to reimburse
plaintiff $1,850 or one-half of the marital money he spent
on his girlfriend. Plaintiff’s fourth and sixth assignments
of error are overruled.
V. Fifth Assignment of Error
{¶ 34} Plaintiff’s fifth assignment of error
contends the trial court erred in failing to consider her
attorney fees as a marital liability subject to division
between the parties.
{¶ 35} R.C. 3105.73(A) governs the award of attorney
fees and provides “a court may award all or part of
reasonable attorney’s fees and litigation expenses to
either party if the court finds the award equitable.” In
assessing whether an award is proper, “the court may
consider the parties’ marital assets and income, any award
of temporary spousal support, the conduct of the parties,
and any other relevant factors the court deems
appropriate.” Id. A trial court’s decision to award
attorney fees in a divorce action is subject to an abuse of
discretion standard. Ockunzzi v. Ockunzzi, Cuyahoga App. No.
86785, 2006-Ohio-5741, at ¶ 71. A party is not
entitled to attorney fees; rather, the court may decide on
a case-by-case basis whether attorney fees would be
equitable. Id.
{¶ 36} The stipulated asset and liability statement
establishes that as of August 31, 2005 plaintiff owed
attorney fees of $33,004. At trial, plaintiff testified and
produced documentary evidence that she owed $44,369 in
attorney fees through June 30, 2005. Although the two
figures appear to be irreconcilable, the trial court and
both parties seem to have adopted the higher figure.
Plaintiff testified she was unable to pay any of her
attorney fees because her expenditures exceeded her salary
and child support. According to plaintiff, a substantial
portion of the fees arose from her attorney’s numerous
attempts to obtain discovery from defendant related to his
alleged financial misconduct.
{¶ 37} The trial court determined plaintiff
“probably spent far too much time on the topic [of
defendant’s alleged financial misconduct], since most of
the items occurred after the parties separated.” (Judgment
Entry, at 11.) The trial court nonetheless found an award to
plaintiff of $3,000 to be fair due to the extra legal fees
incurred relating to private investigation and financial
misconduct matters. In light of the trial court’s
assessment of the need for the expenditure of fees, the
trial court did not abuse its discretion in failing to
include the remainder of plaintiff’s attorney fees as
marital debt subject to division between the parties. The
fifth assignment of error is overruled.
VI. Seventh and Eighth Assignments of Error
{¶ 38} Plaintiff’s seventh and eighth assignments of
error are interrelated and will be considered together,
albeit in reverse order. Together they challenge the trial
court’s orders regarding child support.
{¶ 39} In the eighth assignment of error, plaintiff
maintains the trial court erred in determining the amount
of child support defendant must pay. More particularly,
plaintiff contends the trial court erred “as a matter of
law” in considering the case a “deviation” case and in
failing to determine the child support obligation on a
case-by-case basis as R.C. 3119.04(B) requires.
{¶ 40} R.C. 3119.04(B) provides that “[i]f the
combined gross income of both parents is greater than one
hundred fifty thousand dollars per year, the court, with
respect to a court child support order, * * * shall
determine the amount of the obligor’s child support
obligation on a case-by-case basis and shall consider the
needs and the standard of living of the children who are
the subject of the child support order and of the parents.”
The statute further provides that “[t]he court * * * shall
compute a basic combined child support obligation that is
no less than the obligation that would have been computed
under the basic child support schedule and applicable
worksheet for a combined gross income of one hundred fifty
thousand dollars, unless the court * * * determines that it
would be unjust or inappropriate and would not be in the
best interest of the child, obligor, or obligee to order
that amount.” Id. Should the court make “such a
determination, it shall enter in the journal the figure,
determination, and findings.” Id.
{¶ 41} The trial court construed R.C. 3119.04(B) to
require it to “first calculate the guideline child support
amount based upon a combined income of $150,000.00 and then
deviate, if necessary.” (Judgment Entry, at 19.) To that
end, the court noted that defendant pays $10,080 per year
for child care expenses and $5,046.96 per year for health
and medical insurance for the children. Utilizing these
figures, the trial court calculated defendant’s child
support obligation at $444.38 per child, per month plus
processing charge. The court found this amount “to be
unjust, inappropriate and not in the best interests of the
children given the needs and standard of living of the
children and their parents, who have a combined income of
$334,472.00.” Id.
{¶ 42} The trial court then observed that plaintiff
submitted a monthly budget of $14,456, slightly more than
one-half of which, or $7,527.43, she allocated as
children’s expenses. The court determined that it was not
bound to follow plaintiff in allocating two-thirds of her
fixed expenses, such as mortgage, maintenance and utilities,
to the children, because plaintiff’s calculations did not
acknowledge defendant’s fixed expenses at his home. The
court further observed that plaintiff’s budget included
items that she did not pay, including medical insurance for
both children and childcare expenses.
{¶ 43} The trial court also noted that defendant
submitted a monthly budget of $9,954.13, but testified that
once the marital residence was sold and he purchased or
rented a larger residence, his housing expenses would
increase. Referencing defendant’s Exhibit NN, the court
concluded that the parties’ after-tax cash to meet living
expenses would be equalized with a child support order of
$1,050, resulting in plaintiff’s receiving slightly more
than one-half of the combined income of the parties
regardless of their budgets. The court noted, however, that
plaintiff would have the children the majority of the time
and would bear most of the everyday expenses such as school
lunches, everyday clothing, shoes, coats, and the like.
Accordingly, the court ordered defendant to pay $700 per
child, per month plus two percent processing fee.
{¶ 44} The trial court followed the mandate of R.C.
3119.04(B) in first computing the combined child support
obligation under the basic child support schedule and
applicable worksheet for a combined gross income of
$150,000. This court held that “[i]f a court finds that the
guideline amount is unjust or inappropriate and not in the
best interest of the children, the court may establish a
child support amount that deviates from the guideline
amount.” Wolfe v. Wolfe, Franklin App. No. 04AP-409,
2005-Ohio-2331, at ¶ 11. (Emphasis added.)
{¶ 45} In Wolfe, where the parties’ income exceeded
$150,000, the trial court determined the child support
obligation by applying the child support guidelines and
then considering the deviation factors in R.C. 3119.23. On
appeal, the obligor argued that the trial court failed to
make the required case-by-case analysis under R.C.
3119.04(B) because it considered the R.C. 3119.23 deviation
factors that do not apply in cases involving combined
incomes greater than $150,000. This court found that
“[w]hile the trial court was not required to consider the
factors pursuant to R.C. 3119.23, it is not an abuse of
discretion to do so in addition to computing the child
support obligation on a case-by-case basis in accordance
with R.C. 3119.04(B).” Id. at ¶ 28.
{¶ 46} Here, the trial court determined that the
guideline amount of $444.38 per child, per month was not in
the best interest of the children in view of their needs
and the standard of living of their parents, whose combined
income is over $334,000. The trial court then deviated
upward from that amount to $700 per child, per month based
upon a thorough examination of all the evidence presented.
In so doing, the trial court explained its reasons for not
accepting the figures provided in plaintiff’s budget, while
still acknowledging that the children would spend more time
with plaintiff than with defendant. The trial court further
recognized that its determination would afford plaintiff
slightly more than one-half of the parties’ combined
incomes. The trial court thus computed defendant’s child
support obligation on a case-by-case basis in accordance
with R.C. 3119.04(B). The eighth assignment of error is
overruled.
{¶ 47} Plaintiff’s seventh assignment of error
challenges the trial court’s decision to permit defendant
to pay the child support arrearage through monthly payments
rather than in a lump sum out of his portion of the
proceeds from sale of the marital residence.
{¶ 48} At the time of trial, defendant had a child
support arrearage of approximately $12,000 resulting from
the retroactive increase in child support following
plaintiff’s pretrial request for additional support. The
trial court ordered defendant to pay the arrearage at the
rate of $500 per month until paid in full. Plaintiff
contends the trial court abused its discretion in failing
to order defendant to pay the arrearage from his portion of
the net marital estate. Plaintiff argues the court’s order
unfairly requires her to wait several more years to receive
child support that is already over two years past due.
{¶ 49} We note initially that defendant contends the
support arrears are paid in full, rendering plaintiff’s
request moot. Defendant submits with his appellate brief
documentation from the Child Support Enforcement Agency
that purportedly supports his contention. Our review on
appeal, however, is limited to those materials in the record
before the trial court. See., e.g., State v. DeMastry, 155
Ohio App.3d 110, 2003-Ohio-5588, at ¶ 40, appeal not
allowed (2004), 101 Ohio St.3d 1488, citing State v.
Ishmail (1978), 54 Ohio St.2d 402. We therefore are unable
to consider the supplemental material outside the appellate
record.
{¶ 50} Alternatively, defendant contends the trial
court did not abuse its discretion in ordering the arrears
be paid via monthly installments. Plaintiff cites no
authority requiring the trial court to order defendant to
pay the arrears in one payment. Indeed, R.C. 3123.21
governs child support arrearages and provides that “[a]n
order to collect current support due under a support order
and any arrearage owed by the obligor under a support order
pertaining to the same child or spouse shall be rebuttably
presumed to provide that the arrearage amount collected
with each payment of current support equal at least twenty
per cent of the current support payment.” R.C. 3123.21(A).
In deviating from “the twenty percent presumption,” a trial
court “may consider evidence of household expenditures,
income variables, extraordinary health care issues, and
other reasons for a deviation from the twenty percent
presumption.” R.C. 3123.21(B).
{¶ 51} The General Assembly thus created a
rebuttable presumption of a minimum monthly payment of 20
percent of the current support payment to address an
arrearage, Lyons v. Bachelder (2005), Morrow App. No.
2004-CA-0018, at ¶ 34, with the opportunity to
deviate upward or downward from the 20 percent presumption.
Here, the current support order is $1,400 per month. Twenty
percent of that amount is $280, meaning the court deviated
upward to a payment of $500. The trial court did not abuse
its discretion in ordering an arrearage payment that is
almost twice the statutory minimum. The seventh assignment
of error is overruled.
VII. Ninth and Tenth Assignments of Error
{¶ 52} Plaintiff’s ninth and tenth assignments of
error are interrelated and will be addressed jointly.
Together they contend the trial court erred in adopting
defendant’s shared parenting plan as it relates to the
parties’ decision-making authority and international
travel. A trial court is vested with broad discretion to
decide matters relating to the allocation of parental
rights and responsibilities for the care of minor children,
and its decision is subject to reversal only upon a
demonstration of an abuse of that discretion. Corradi v.
Corradi, Mahoning App. No. 01-C.A.-22, 2002-Ohio-3011, at
¶ 10.
{¶ 53} Both parties filed motions for shared
parenting, along with proposed shared parenting plans,
pursuant to R.C. 3109.04(G). Defendant’s plan provides that
the parties jointly participate in major decisions
regarding the general health, welfare and education of the
children. Plaintiff’s plan generally echoed that of
defendant, but plaintiff reserved to herself final
decision-making authority in the event the parties could
not come to an agreement on a particular issue. Apparently,
the decision-making plaintiff reserved extended to
decisions regarding international travel with the children
and the children’s religious upbringing.
{¶ 54} In the parties’ Stipulation filed on October
5, 2005, they agreed on the parenting schedule and attached
it to the Stipulation, but they left the issues of
decision-making authority, international travel, and
religious upbringing to the discretion of the trial court.
Plaintiff does not object to the trial court’s findings
regarding the children’s religious upbringing, so we limit
our discussion to the trial court’s resolution of the
remaining two issues.
{¶ 55} In support of her request to be awarded
decision-making authority for the children, plaintiff
offered evidence that when Nadeem Jr. was born in 1993, the
parties lived in Pittsburgh. In 1994, defendant moved to
Pakistan for five months. During the five-month period,
plaintiff had sole responsibility for rearing Nadeem Jr.
Following defendant’s return from Pakistan, plaintiff
obtained employment in Louisiana, and the family moved
there together. Defendant initially could not find
employment in Louisiana; he ultimately took a position in
Oklahoma. While defendant lived in Oklahoma, plaintiff
remained in Louisiana for two years, where she again had
sole responsibility for rearing Nadeem Jr. According to
plaintiff, defendant never objected to plaintiff’s
decision-making ability during either of their lengthy
separations.
{¶ 56} Following Corey’s birth in 1998, plaintiff
was primarily responsible for the children and, without
objection from defendant, made most of the decisions
regarding childcare, medical issues, and extracurricular
activities. The arrangement was in large part due to
plaintiff’s more traditional work schedule of 8:00 a.m. to
5:30 or 6:00 p.m. with no weekends. In contrast,
defendant’s work schedule involved some early morning,
weeknight, and weekend work, including some “on-call”
duties.
{¶ 57} Plaintiff testified she does not believe she
and defendant can effectively communicate to make joint
decisions regarding the children. As an example, plaintiff
testified that since she and defendant separated, most of
their communication regarding the children has been through
e-mail or, on occasion, through messages defendant enlists
the children to relay to plaintiff. Plaintiff acknowledged,
however, that although the process is somewhat difficult,
she and defendant have at times communicated directly when
picking up or dropping off the children, and she would like
to continue direct communication in the future.
{¶ 58} While plaintiff also recognized that
defendant made routine decisions for the children when they
were in his care, she testified she harbors some concern
about defendant’s ability to make decisions in the
children’s best interest. As an example, plaintiff recounted
two incidents in which the children allegedly sustained
injuries while roughhousing with one another while in
defendant’s care. According to plaintiff, Nadeem Jr. has a
permanent one-inch scar under his eye from his injury.
Plaintiff also notes Corey hit the back of his head on a
table, causing significant bleeding, and defendant did not
inform her of the head injury so she could monitor his
condition. As further examples of defendant’s suspect
decision-making skills, plaintiff testified defendant did
not provide any child support from the February 2004
separation date until his wages were garnished in early May
2004, would not accommodate the children when plaintiff’s
home experienced heating or cooling issues, and left the
children unattended in his car for a brief time while he
shopped.
{¶ 59} Plaintiff also testified she is opposed to
defendant’s taking the children to Pakistan to visit his
family. Plaintiff’s main concern is the children’s safety
in the political turmoil in the Middle East, the children’s
unfamiliarity with the country, their inability to speak
the native language, and defendant’s demonstrated inability
to make good decisions concerning their safety. Plaintiff
nonetheless admitted defendant undoubtedly would attempt to
protect the children from harm should the need arise and
would not intentionally put them in harm’s way. She further
acknowledged that she and defendant visited Pakistan twice
during the marriage with no incident.
{¶ 60} Plaintiff further testified she was afraid
defendant would abscond with the children if he were
permitted to take them to Pakistan. As support, plaintiff
noted defendant’s mother and sister live in Pakistan,
defendant lived there until 1989 and has dual citizenship,
and defendant obtained his medical degree in Pakistan and
could practice medicine there. Plaintiff further voiced
that her concern was born of defendant’s lack of candor on
another topic: his initial refusal to admit his
extra-marital affair and his continued lack of
forthrightness concerning the affair.
{¶ 61} Defendant opposed plaintiff’s request to be
designated final decision-maker for issues involving the
children. To that end, defendant testified he was Nadeem
Jr.’s full-time caretaker for approximately one year when
the parties lived in Louisiana. He also testified that
although his relationship with plaintiff was sometimes
tense, he and plaintiff have made joint decisions regarding
the children since the date of separation. He, however,
admitted he and plaintiff communicated face-to-face only
once since they separated; all other communication was via
e-mail. Defendant testified the children had no special
needs that would inhibit joint decision-making, and he
believed the children’s best interest would be best served
if he and plaintiff continued to make joint decisions.
Defendant expressed his belief that once the divorce was
finalized, communication with plaintiff face-to-face would
be much easier.
{¶ 62} Regarding international travel, defendant
testified he wanted to take his children to Pakistan to
visit his mother, as her health precludes her traveling to
the United States. He also stated that due to his
familiarity with Pakistan, he believed he could keep the
children safe. He further testified he never threatened to
take the children to Pakistan and had no intention of
absconding with the children and relocating there.
{¶ 63} The GAL filed a written report and
recommendation stating that the parties are fully capable
of cooperating and collaborating in a shared parenting
arrangement. The GAL noted he previously recommended to the
parties a process for decision-making and urged the parties
to adhere to it. According to the proposal, the party with
parenting responsibilities may make routine, ordinary
decisions without consulting the other parent, but
decisions affecting both parents must be jointly made after
meetings at which each party is encouraged to express his
or her concerns, beliefs and positions regarding the
subject at issue.
{¶ 64} In the event the process does not produce a
satisfactory result, the GAL’s proposal would give
plaintiff final decision-making authority so that the
parties’ inability to jointly decide would not interfere
with the children’s ability to lead their lives. If,
however, defendant believed plaintiff’s decision was not
made in good faith or was unreasonable, depriving him of
appropriate input into the decision-making process,
defendant could ask the court to review plaintiff’s
conduct. If the court determined plaintiff acted in bad
faith, defendant would be granted final decision-making
authority.
{¶ 65} As to international travel, the GAL concluded
child abduction is not a concern, leaving only the issue of
the children’s safety. To that end, the GAL recommended
that since plaintiff harbored significant concerns relating
to the children traveling to Pakistan, defendant should
consider deferring to plaintiff’s concerns. The GAL proposed
that plaintiff’s fears might best be allayed if defendant
took only Nadeem Jr. to Pakistan and postponed a trip with
Corey until he turned 12. The GAL stated defendant must
decide based upon his knowledge and understanding of the
children, as well as their ability to travel abroad and
spend time away from their mother. The GAL further stated
the parties must respect each other’s concerns and realize
that such respect may require a compromise with which
neither party is completely satisfied.
{¶ 66} Confronted with such evidence, the trial
court refused to name one parent the final decision-maker.
The court noted that the parties cooperated on important
decisions regarding the children, such as school placement,
extracurricular activities, childcare, and counseling for
Nadeem Jr., and their testimony indicated they could
continue to do so. The court disagreed with the GAL’s
recommendation that plaintiff should be the final
decision-maker if the parties’ attempts to reach a decision
failed.
{¶ 67} The court further perceived plaintiff’s
request that defendant seek her permission for their
children’s international travel as an attempt to control
defendant’s activities with the children even though he,
like plaintiff, has legal custody of the children. The court
also concluded defendant never threatened to abscond with
the children and would not attempt to permanently remove
the children from their mother.
{¶ 68} After reviewing both shared parenting plans,
the trial court noted that neither plan adequately
addressed the current parenting schedule or Stipulation.
Although the trial court adopted defendant’s shared
parenting plan, it ordered the parties to submit certain
changes to the plan. As pertinent here, the court ordered
that the plan exclude language giving plaintiff final
decision-making authority or preventing either party from
traveling with the children outside the United States. The
court further ordered the parent taking the children out of
the country to provide the other parent with an itinerary,
including hotels and telephone numbers and dates at each
location. The court ordered the traveling parent, in the
event international cell phone communication be available
in the destination country, to rent a cell phone and permit
the children to call the other parent at least every other
day, unless the parties agree otherwise.
{¶ 69} Plaintiff’s disagreement with the trial
court’s decision stems largely from her position that
defendant’s past actions demonstrate his lack of
credibility. We reiterate, however, that credibility
determinations are the province of the trial court and we,
as a reviewing court, may not substitute our judgment for
that of the trial court on such matters. White, supra. If
the trial court believed defendant and the GAL’s
recommendation, then competent, credible evidence exists to
support the trial court’s conclusion that abduction is not
a risk.
{¶ 70} As to plaintiff’s contention that the trial
court ignored the recommendations of the GAL in rendering
its orders, we note the GAL’s recommendation does not bind
the trial court. Baker v. Baker, Lucas App. No. L-03-1018,
2004-Ohio-469, at ¶ 30. “A trial court determines
the guardian ad litem’s credibility and the weight to be
given to any report.” Id. See, also, Ferrell v. Ferrell,
Carroll App. No. 01-AP-0763, 2002-Ohio-3019, at ¶ 43
(holding that although the GAL’s role is to investigate the
child[ren]’s situation and make a recommendation to the
court he or she believe is in the child[ren]’s best
interest, the ultimate decision is for the trial judge and
not a representative of the children). Further, the court
justified its decision to reject the GAL’s report on the
decision-making issue, stating: (1) the GAL provided no
explanation for the basis of his recommendation, (2) the
court had approved hundreds, if not thousands, of shared
parenting plans that did not identify a final
decision-maker, and (3) the GAL acknowledged that the
parties were able to cooperate and collaborate for the sake
of their children. Thus, despite the GAL’s recommendations,
the record contains ample evidence allowing the trial court
to determine otherwise. The ninth and tenth assignments of
error are overruled.
VIII. Eleventh Assignment of Error
{¶ 71} Plaintiff’s eleventh assignment of error
asserts the trial court erred in granting a divorce on
grounds other than those of adultery. A trial court has
broad discretion in determining the proper grounds for
divorce, and a reviewing court will not reverse that
determination absent an abuse of discretion. Buckles v.
Buckles (1988), 46 Ohio App.3d 102, 116.
{¶ 72} Although plaintiff and defendant both
asserted extreme cruelty, gross neglect of duty, and
incompatibility as grounds for divorce, the trial court
granted plaintiff a divorce on the grounds of adultery
under R.C. 3105.01(C); it granted both parties a divorce on
the grounds of living separate and apart without
cohabitation for more than one year under R.C. 3105.01(J)
and incompatibility under R.C. 3105.01(K). Plaintiff
contends the trial court erred in granting a divorce
premised on R.C. 3105.01(J) because neither party alleged
it as grounds for divorce or amended their pleadings to
conform to any evidence relating to it. Plaintiff also
contends the trial court erred in granting a divorce based
on R.C. 3105.01(K) because defendant did not present any
evidence in support, and plaintiff was not asked if the
parties were incompatible.
{¶ 73} R.C. 3105.01(J) provides that a common pleas
court may grant a divorce “[o]n the application of either
party, when husband and wife have, without interruption for
one year, lived separate and apart without cohabitation.”
At the time the parties filed their pleadings, the parties
had not lived separately for one year because defendant did
not leave the marital residence until February 1, 2004. The
parties thus could not allege such basis for divorce.
{¶ 74} Civ.R. 15(B) provides, in part, that “[w]hen
issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings. *
* * Failure to amend as provided herein does not affect the
result of the trial of these issues.” Here, neither party
moved to amend their pleadings under Civ.R. 15. No record
evidence, however, suggests either party challenged that
they had lived separately without cohabiting for one year.
Absent their challenge, the trial court reasonably could
infer that the parties impliedly consented to have the
court try the issue. See Brooks-Lee v. Lee, Franklin App.
No. 03AP-1149, 2005-Ohio-2288, at ¶ 58; Moser v.
Moser (1982), 5 Ohio App.3d 193, 194 (holding that where
evidence relative to ground for divorce was admitted
without objection, failure to amend pursuant to Civ.R. 15[B]
does not affect trial of such issue).
{¶ 75} Both parties testified defendant left the
marital residence in February 2004. The trial court filed
its judgment entry/decree of divorce on January 30, 2006.
Absent evidence to the contrary, sufficient evidence
supports the trial court’s finding that the parties lived
separate and apart without interruption and without
cohabitation for a period in excess of one year. Thus, we
cannot conclude the trial court’s determination as to R.C.
3105.01(J) was in error.
{¶ 76} R.C. 3105.01(K) provides that a court of
common pleas may grant a divorce for “[i]ncompatibility,
unless denied by either party.” “Incompatibility, under
R.C. 3105.01(K), is really not a `ground’ that has to be
proven so much as a status that must be agreed on by both
parties; it is a consensual grounds that is not intended to
be litigated.” Rodgers v. Henninger-Rodgers, Licking App.
No. 02CA79, 2003-Ohio-2642, at ¶ 12, quoting Lehman
v. Lehman (1991), 72 Ohio App.3d 68, 71. “The requirement
that the allegation of incompatibility not be denied by
either party was included to prevent the unilateral
declaration of incompatibility by one party which would
otherwise give the court the jurisdiction to terminate the
marriage and make all concomitant orders.” Id., quoting
Lehman at 71. The phrase “not intended to be litigated” as
utilized in Lehman means that “a divorce on such ground
could not be granted unilaterally over an objection of the
other party * * * . If incompatibility is contested, the
contest is over, and the claim must be dismissed.” Rodgers,
at ¶ 13, quoting Byers v. Byers (Feb. 5, 2001),
Stark App. No. 2000CA000159.
{¶ 77} Here, incompatibility was not contested.
Indeed, both parties alleged it as grounds in the
pleadings, and plaintiff’s reply to defendant’s
counterclaim admitted that the parties are incompatible.
Accordingly, the trial court did not err in granting both
parties a divorce on the ground of incompatibility pursuant
to R.C. 3105.01(K). The eleventh assignment of error is
overruled.
{¶ 78} Having overruled each of plaintiff’s eleven
assignments of error, we affirm the judgment of the
Franklin County Court of Common Pleas, Division of Domestic
Relations.
Judgment affirmed.
McGRATH and TRAVIS, JJ., concur.