Ohio Appellate Reports
Unpublished
O’BRIEN v. O’BRIEN, Unpublished Decision (12-18-2006)
2006-Ohio-6729 MARK O’BRIEN Plaintiff-Appellee v. LISA
O’BRIEN Defendant-Appellant. No. 2006 CA 00058. Court of
Appeals of Ohio, Fifth District, Stark County. DATE OF
JUDGMENT ENTRY: December 18, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Civil Appeal from the Court of Common Pleas,
Domestic Relations Division, Case No. 2004 DR 00083.
Affirmed.
JOYCE A. LAMB, Ohio, For Plaintiff-Appellee.
JEREMY J. FOLTZ, Ohio, For Defendant-Appellant.
Before: Hon. JOHN W. WISE P. J., Hon. W. SCOTT GWIN J.,
Hon. SHEILA G. FARMER FARMER, J.
OPINION
WISE, P. J.
{¶ 1} Appellant Lisa O’Brien, aka Leisa O’Brien,
appeals from her divorce in the Stark County Court of
Common Pleas, Domestic Relations Division. Appellee Mark
O’Brien is appellant’s former spouse. The relevant
procedural facts leading to this appeal are as follows.
{¶ 2} Appellant and appellee were married on
November 4, 1988. Two children were born of the marriage:
Casey (born in 1992) and Connor (born in 1995).
Appelleehusband filed a complaint for divorce on January
21, 2004, in the Stark County Court of Common Pleas,
Domestic Relations Division. The court thereafter appointed
a guardian ad litem for the children. The case was stayed
for a time due to appellant’s pending bankruptcy action,
which resulted from appellant incurring credit card debts
of over $200,000.00. The divorce action finally went to
trial on January 24, 2006. Appellee appeared and was
represented by counsel; appellant proceeded pro se upon the
court’s denial of her request for appointed counsel.
{¶ 3} On February 2, 2006, the court issued a
judgment entry of divorce, ordering inter alia that
appellee pay spousal support to appellant in the amount of
$2,500 per month for three years.
{¶ 4} On February 24, 2006, appellant filed a notice
of appeal. She herein raises the following three
Assignments of Error:
{¶ 5} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN
MAKING ITS AWARD OF SPOUSAL SUPPORT, WHICH WAS INSUFFICIENT
IN AMOUNT AND DURATION.
{¶ 6} “II. THE TRIAL COURT ERRED IN DENYING
APPELLANT THE OPPORTUNITY TO CROSS-EXAMINE THE GUARDIAN AD
LITEM.
{¶ 7} “III. THE TRIAL COURT ERRED IN DENYING
APPELLANT’S REQUEST TO CONTINUE THE TRIAL, REQUIRING HER TO
PROCEED PRO SE.”
I.
{¶ 8} In her First Assignment of Error, appellant
contends the trial court abused its discretion in awarding
spousal support, in terms of amount and duration. We
disagree.
{¶ 9} A trial court’s decision concerning spousal
support may only be altered if it constitutes an abuse of
discretion. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64, 67,
554 N.E.2d 83. An abuse of discretion connotes more than an
error of law or judgment; it implies that the court’s
attitude is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d
1140. R.C. 3105.18(C)(1)(a) thru (n), infra, provides the
factors that a trial court is to review in determining
whether spousal support is appropriate and reasonable and
in determining the nature, amount, terms of payment, and
duration of spousal support. A trial court’s decision not
to acknowledge all evidence relative to each and every
factor listed in R.C. 3105.18(C)(1) does not necessarily
mean the evidence was not considered. Barron v. Barron,
Stark App. No. 2002CA00239, 2003-Ohio-649.
{¶ 10} R.C. 3105.18(C)(1) provides as follows:
{¶ 11} “(C)(1) In determining whether spousal
support is appropriate and reasonable, and in determining
the nature, amount, and terms of payment, and duration of
spousal support, which is payable either in gross or in
installments, the court shall consider all of the following
factors:
{¶ 12} “(a) The income of the parties, from all
sources, including, but not limited to, income derived from
property divided, disbursed, or distributed under section
3105.171 of the Revised Code; (b) The relative earning
abilities of the parties; (c) The ages and the physical,
mental, and emotional conditions of the parties; (d) The
retirement benefits of the parties; (e) The duration of the
marriage; (f) The extent to which it would be inappropriate
for a party, because that party will be custodian of a
minor child of the marriage, to seek employment outside the
home; (g) The standard of living of the parties established
during the marriage; (h) The relative extent of education
of the parties; (i) The relative assets and liabilities of
the parties, including but not limited to any court-ordered
payments by the parties; (j) The contribution of each party
to the education, training, or earning ability of the other
party, including, but not limited to, any party’s
contribution to the acquisition of a professional degree of
the other party; (k) The time and expense necessary for the
spouse who is seeking spousal support to acquire education,
training, or job experience so that the spouse will be
qualified to obtain appropriate employment, provided the
education, training, or job experience, and employment is,
in fact, sought; (l) The tax consequences, for each party,
of an award of spousal support; (m) The lost income
production capacity of either party that resulted from that
party’s marital responsibilities; (n) Any other factor that
the court expressly finds to be relevant and equitable.”
{¶ 13} The record reflects that the parties were
married for seventeen years. Appellant has had limited
employment since the mid-nineties, although she did have a
consistent work history from 1984 to 1991. See Appellant’s
Deposition, Sept. 9, 2004, at 8-21. Appellant, age 39, took
some college courses after high school, but did not obtain a
college degree. Id. at 11. She apparently plans to run a
home-based business, making chocolate candies for sale. The
court found that appellant has been suffering from
unspecified mental health issues, resulting in her
hospitalization during the pendency of the divorce, although
her physical health is good. Judgment Entry of Divorce at
3. The parties had a “comfortable” lifestyle; the marital
home was valued at $170,000, with a mortgage balance of
$108,059. Id. at 4. Appellee, age 42, has a bachelor’s
degree and earns approximately $125,000 per year.
{¶ 14} Having reviewed the above facts and the
pertinent portions of the record, we are not inclined to
substitute our judgment for that of the trial judge, who
concluded that $2,500 per month for three years would be
appropriate and reasonable under R.C. 3105 .18(C). We
further note the court maintained continuing jurisdiction
over spousal support in this case, should circumstances
change. Cf. Tyree v. Tyree, Licking App. No. 03 CA 89,
2004-Ohio-3967, ¶ 34.
{¶ 15} Appellant’s First Assignment of Error is
overruled.
II.
{¶ 16} In her Second Assignment of Error, appellant
contends the trial court erred by declining to allow her to
cross-examine the children’s guardian ad litem.
{¶ 17} R.C. 3109.04(C) states as follows in
pertinent part: “Prior to trial, the court may cause an
investigation to be made as to the character, family
relations, past conduct, earning ability, and financial
worth of each parent and may order the parents and their
minor children to submit to medical, psychological, and
psychiatric examinations. The report of the investigation
and examinations shall be made available to either parent
or the parent’s counsel of record not less than five days
before trial, upon written request. The report shall be
signed by the investigator, and the investigator shall be
subject to cross-examination by either parent concerning
the contents of the report. * * *.”
{¶ 18} In the case sub judice, right after the trial
court admitted the written report of the guardian ad litem,
Attorney Karen Dummermuth, appellant stated as follows to
the court: “I would like to ask [the guardian ad litem]
questions. Because she has negligently represented my
children. That’s the purpose we have an in court camera
(sic) interview with my children.” Tr. at 31. The court
then stated that the guardian ad litem report was “admitted
automatically” and did not further address appellant’s
request. Id. We note appellant did not recite R.C.
3109.04(C) at that time, nor did she assert that Ms.
Dummermuth was acting as an “investigator” pursuant to the
statute.
{¶ 19} Rule 17.03(A)(5) of the Stark County Local
Rules of Court (Family Court Division) prohibits the
guardian ad litem from participating in a hearing or trial
unless specifically ordered by the court or agreed to by
the parties. Furthermore, it is incumbent upon an appellant
raising issues pertaining to the denial of crossexamination
of a guardian ad litem to show prejudicial error. See Evans
v. Evans (Sept. 20, 2001), Franklin App. Nos. 00AP-1459,
00AP-1466, citing Smith v. Smith (Dec. 28, 1999), Franklin
App. No. 98AP-1641.[fn1] A prejudicial error is defined as
one which affects or presumptively affects the final
results of the trial. Linden v. Cooper & Hall (Dec. 21,
1984), Ottawa App. No. OT-84-11 (citations omitted).
Assuming, arguendo, R.C. 3109.04(C) was applicable to Ms.
Dummermuth’s guardian ad litem role in this matter, we find
no demonstration of prejudicial error under the
circumstances of this case. In particular, although
appellant asserts that the court made ” * * * a decision
based on evidence which has not been subjected to the
rigors of the adversarial process” (Appellant’s Brief at
8), appellant does not otherwise articulate a challenge to
the court’s custody award in the present appeal. Since the
details of the custody issue are not otherwise addressed on
the merits, we find no showing of what effect the proposed
cross-examination would have had on the outcome of the
trial.
{¶ 20} Accordingly, appellant’s Second Assignment of
Error is overruled.
III.
{? 21} In her Third Assignment of Error, appellant
argues the trial court erred in denying her a continuance
to obtain counsel.[fn2] We disagree.
{¶ 22} The grant or denial of a continuance is a
matter entrusted to the broad, sound discretion of the
trial court. Polaris Ventures IV, Ltd. v. Silverman,
Delaware App. No. 2005 CAE 11 0080, 2006-Ohio-4138,
¶ 14, citing State v. Unger (1981), 67 Ohio St.2d
65, 423 N.E.2d 1078. In order to find an abuse of
discretion, we must determine that the trial court’s
decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore, supra. A
party does not have a guaranteed or constitutional right to
be represented by counsel in a domestic relations
proceeding. DiGuilio v. DiGuilio, Cuyahoga App. No. 81860,
2003-Ohio-2197, ¶ 16, quoting Rodriquez v. Rodriquez
(April 29, 1983), Wood App. No. WD-82-78.
{¶ 23} In the case sub judice, appellee filed for
divorce in early 2004. Appellant filed her first request
for continuance on December 14, 2004, the day set for
trial. At a hearing on February 1, 2005, the court
permitted appellant’s first attorney to withdraw and
informed appellant at that time that the case would go
forward whether or not she had a new attorney. The trial
was next scheduled for March 22, 2005. On March 21, 2005,
appellant’s second attorney filed a suggestion of stay due
to appellant’s bankruptcy. The trial was therefore stayed.
Thus, during these time frames, appellant retained two
different attorneys, but appeared for the twice-rescheduled
trial on January 24, 2006 unrepresented. In light of these
circumstances, we find no abuse of discretion by the trial
court in denying the motion to continue the divorce trial.
{¶ 24} Appellant’s Third Assignment of Error is
overruled.
{¶ 25} For the reasons stated in the foregoing
opinion, the judgment of the Court of Common Pleas, Stark
County, Ohio, is hereby affirmed.
By: Wise, P. J. Gwin, J., and Farmer, J., concur.
JUDGMENT ENTRY
For the reasons stated in our accompanying
Memorandum-Opinion, the judgment of the Court of Common
Pleas, Domestic Relations Division, Stark County, Ohio, is
affirmed.
Costs to appellant.
[fn1] We recognize that in In re Hoffman, 97 Ohio St.3d 92,
2002-Ohio-5368, syllabus, the Ohio Supreme Court held: “In a
permanent custody proceeding in which the guardian ad
litem’s report will be a factor in the trial court’s
decision, parties to the proceeding have the right to
cross-examine the guardian ad litem concerning the contents
of the report and the basis for a custody recommendation.”
However, the case sub judice does not involve permanent
custody issues. See R.C. 2151.011(B)(30).
[fn2] Technically, appellant asked for appointed counsel
only. Tr. at 4. However, the court stated it would neither
appoint counsel nor grant another continuance for appellant
to hire an attorney. Tr. at 4, 90-91.