[Cite as Ingram v. Ingram, 2012-Ohio-2587.]

 STATE OF OHIO, NOBLE COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

TERRY D. INGRAM, ) 

 ) CASE NO. 11 NO 385 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) OPINION 

 ) 

KITTI J. INGRAM, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 210-0022. 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: No Brief Filed. 

For Defendant-Appellant: Attorney Stephanie L. Mitchell 

Attorney Margaret Boyd Laplante 

Tribbie, Scott, Plummer & Padden 

139 West 8th Street 

P.O. Box 640 

Cambridge, OH 43725 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: June 6, 2012 

DeGenaro, J. 
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{¶1} Defendant-Appellant, Kitti J. Ingram, appeals the May 11, 2011 judgment of 

the Noble County Court of Common Pleas granting a divorce between her and PlaintiffAppellee, Terry D. Ingram. On appeal, Kitti contends that the trial court's decision to 

designate Terry the sole legal custodian and residential parent of the parties' teenage son 

Christopher was an abuse of discretion. Kitti's argument is meritorious. There was 

insufficient evidence presented upon which the trial court could determine an original 

allocation of parental rights and responsibilities. Accordingly, the judgment of the trial 

court is reversed and remanded to the trial court for an evidentiary hearing on the issue of 

parental rights and responsibilities of the parties' minor child, Christopher. 

Facts and Procedural History 

{¶2} Kitti and Terry were married on September 3, 1989. On February 8, 2010, 

Terry filed a complaint for divorce. Kitti answered, and the parties submitted affidavits of 

expenses, income and other financial disclosures. Terry was employed as a material 

handler at Detroit Diesel, earning approximately $32,000 per year. Kitti was unemployed, 

having been a homemaker for the duration of the marriage. Three children were born as 

issue of the marriage. At the time of the divorce, all except Christopher, who was born 

June 25, 1997, had emancipated. While the divorce action was pending, an agreed 

temporary order was issued granting temporary custody of Christopher to Kitti, granting 

Terry parenting time pursuant to the court's standard visitation order, and ordering Terry 

to pay $322.34 per month, plus processing fee, as child support to Kitti. Kitti was granted 

exclusive occupancy of the marital residence during the pendency of the proceedings. 

{¶3} The case proceeded to a final divorce hearing on November 10, 2010, the 

main point of contention being the disposition of the marital residence. Terry asserted he 

should be awarded the home, along with the accompanying mortgage debt, because he 

was actively involved in the constructing of the home and landscaping of the premises. 

Terry presented little evidence regarding the issue of custody, except to state that he 

believed Christopher would want to remain in the marital home. Terry testified that he 

worked second-shift and therefore was only able to visit with Christopher on weekends 

since the parties had separated. 
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{¶4} By contrast, Kitti testified that she wanted to be Christopher's legal 

custodian and residential parent. Throughout the marriage Kitti had stayed at home to 

care for Christopher, along with his older sister Sarah, who, although an adult at the time 

of the divorce, has special needs. 

{¶5} Only Kitti and Terry testified at the final hearing. No in camera interview of 

the minor child was conducted, and in fact, neither party had requested one. At the close 

of the hearing, the trial court asked the parties to submit their respective positions in 

writing, instructing them to be specific regarding requests for property division. The court 

continued: "I don't think there's any real controversy about custody. It appears that Mrs. 

Ingram will be the residential parent of the child. Do me [sic] a child support computation 

on what you guys consider to be the new numbers." 

{¶6} Terry filed proposed findings of fact and conclusions of law on December 

29, 2010. Kitti filed a document entitled "Defendant Kitti Jo Ingram's Property Division 

Request" on January 3, 2011. 

{¶7} On March 29, 2011, Terry's counsel sent an ex parte letter to the court, 

complaining that Kitti was permitting the marital residence to go into foreclosure, and 

requesting that the court quickly issue the final decree. 

{¶8} On May 11, 2011 the trial court issued the final divorce decree, adopting 

Terry's proposed finding of fact and conclusions of law in their entirety. Among other 

things, the court awarded the marital residence to Terry and designated Terry as the legal 

custodian and residential parent of Christopher. No child support was ordered. 

{¶9} Kitti filed a timely notice of appeal from the decree. The trial court granted 

her motion for stay. Therein, the court ordered that Kitti be named the legal custodian 

and residential parent of Christopher pursuant to the terms of the court's earlier temporary 

order, and that Terry be ordered to resume paying child support in the amount of $322.34 

per month. 

Allocation of Parental Rights and Responsibilities 

{¶10} In her sole assignment of error, Kitti asserts: 

{¶11} "The trial court erred and abused its discretion when it named Appellee the 
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primary residential parent and legal custodian of the minor child, Christopher Wayne 

Ingram (DOB: 6/25/1997) where no request for such an order was made by Appellee at 

hearing and where no evidence was presented establishing that such an order would be 

in the best interests of said minor child." 

{¶12} In a divorce action, the court must allocate parental rights and 

responsibilities in accordance with the child's best interests. R.C. 3109.04(A), (B)(1). To 

determine the best interests of the child, the court shall consider all relevant factors, 

including, but not limited to: 

(a) The wishes of the child's parents regarding the child's care; 

(b) If the court has interviewed the child in chambers * * * the wishes 

and concerns of the child, as expressed to the court; 

(c) the child's interaction and interrelationship with the child's 

parents, siblings, and any other person who may significantly affect the 

child's best interest; 

(d) The child's adjustment to the child's home, school, and 

community; 

(e) The mental and physical health of all persons involved in the 

situation; 

(f) The parent more likely to honor and facilitate court-approved 

parenting time rights or visitation and companionship rights; 

(g) Whether either parent has failed to make all child support 

payments, including all arrearages, that are required of that parent pursuant 

to a child support order under which that parent is an obligor; 

(h) Whether either parent or any member of the household of either 

parent previously has [involving certain offenses or adjudications relative to 

the child or family]; 

(i) Whether the residential parent or one of the parents subject to a 

shared parenting decree has continuously and willfully denied the other 
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parent's right to parenting time in accordance with an order of the court; 

(j) Whether either parent has established a residence, or is planning 

to establish a residence, outside this state. R.C. 3109.04(F)(1). 

{¶13} A decision regarding the custody of a child shall not be reversed absent an 

abuse of discretion. Davis v. Flickinger, 77 Ohio St.3d 415, 416-417, 674 N.E.2d 1159 

(1997). In order to find an abuse of discretion, the reviewing court must conclude that the 

trial court's decision was unreasonable, arbitrary or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). "If the trial court's decision 

concerning the child's best interests is not supported by competent, credible evidence, 

then it is unreasonable and may be reversed." Gomez v. Gomez, 7th Dist. No. 06 NO 

330, 2007-Ohio-1559, ¶ 30, citing In re Nice, 141 Ohio App.3d 445, 455, 751 N.E.2d 552 

(7th Dist.2001). 

{¶14} Kitti's contention that Terry did not request custody of Christopher is not 

entirely accurate. In his complaint, Terry requested that he "be named the legal and 

residential parent of the minor child." During opening statements, Terry's counsel stated 

the following with regard to custody: "Mr. Ingram has been able to visit with his son on a 

regular basis. He realizes that if he is awarded the house, the son may want to live there. 

So, we are not here to get into a big custody fight but that's the reality." Thus, Terry made 

some request for custody of Christopher. 

{¶15} Kitti also takes issue with the fact that the trial court adopted Terry's 

proposed findings of fact and conclusions of law verbatim. While "there is nothing that 

per se prohibits a court from adopting a party's findings and conclusions as its own," 

those findings and conclusions must be valid. (Internal citations omitted, emphasis 

added.) Mummey v. Mummey, 7th Dist. No. 10 NO 371, 2010-Ohio-4243, ¶ 16. In this 

case, however, their validity appears questionable. 

{¶16} The decree states as follows with regard to custody: 

 With regard to the allocation of parental rights and responsibilities for 

the care of the minor child, the court has considered all of the factors 
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contained in Revised Code Section 3109.04(F)(1) and in determining the 

best interest of the minor child and makes the findings: 

(a) Both parties requested the court designate them as the 

residential parent and legal custodian of the minor child. The 

child currently resides with his mother. Plaintiff believes the 

child will want to stay at the family residence with the parent who 

owns the property. In the alternative, if Plaintiff does not receive 

custody of the child, he has requested liberal and frequent 

contact with the child. 

(b) The court did not interview the child regarding his wishes and 

concerns as to the allocation of parental rights and 

responsibilities. 

(c) The Court finds that child has good interaction with and 

interrelationship with his parents and other persons who 

significantly affect the child's best interest. 

(d) The child has adjusted well to home, school, and community. 

(e) The child does not suffer any significant mental or physical 

health problems. 

(f) Both parties will honor and facilitate court approved parenting 

time rights or visitation and companionship rights with the child. 

(g) Plaintiff is current on his child support payments for the child. 

Plaintiff has also paid additional necessary expenses for the 

child. 

{¶17} The court designated Terry as the residential parent and legal custodian of 

Christopher, concluding that "Plaintiff [Terry] is a fit and proper person to be the legal 

custodian and residential parent of this child and this is in the best interest of the minor 

child." The court ordered a deviation to $0 per month in child support due to Kitti's 

financial situation. 
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{¶18} Kitti correctly notes that Terry presented no evidence in support of his 

custody request other than his own testimony that he believed Christopher would want to 

remain with the marital residence. The entirety of Terry's testimony regarding custody is 

as follows. 

 

Q. Okay. Now with regard to your son Christopher how often are you 

able to see him now? 

 A. Every other week-end [sic] 

 Q. Okay. And you work second shift right? 

 A. I work second shift, so I don't get to see him during the week. 

 Q. Okay. Have there been any serious problems with regard to your 

ability to see Christopher while this case was going on? 

 A. No. 

 Q. Okay. Do you and Kitti talk at all? 

 A. Very seldom. 

 Q. Okay, ever talk about Christopher? 

 A. No so far we haven't needed to. 

 Q. Okay. Alright. Is it your understanding or is it your belief that your 

son would probably want to remain in the residence? 

 A. My son will stay with the house. 

 Q. Okay. 

 A. That's his comfort zone. 

 Q. You're not trying to take him away from his mother or anything 

like that right? You just know that's where he wants to be? 

 A. That's where he wants to be. 

{¶19} However, the evidence put into the record by Kitti is similarly scant. Kitti 

testified that she was a homemaker for the duration of the marriage and she cared for the 

children while Terry worked and she continued to care for the parties' adult daughter with 

special needs. While there was some testimony that Kitti left the parties' residence for 
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periods of time during the marriage, sometimes to care for aging relatives, she always 

took Christopher with her and there was no evidence that this was problematic for the 

child. After Terry filed for divorce, Christopher remained with Kitti. Kitti also testified that 

Terry had a history of anger problems, and had caused damage to the inside of their 

home, for example, breaking a door off of its hinges and throwing objects at the kitchen 

cupboard door. 

{¶20} The trial court decided to award custody to Terry based solely upon its 

disposition of the marital residence to Terry, which is unreasonable and arbitrary. The 

trial court's custody determination was erroneous as there was insufficient evidence 

presented upon which an original allocation of parental rights and responsibilites could be 

made. Additionally, the trial court's custody determination is puzzling given that, at the 

end of the hearing, the trial court stated that he did not think there was "any real 

controversy about custody," and that it appeared "Mrs. Ingram will be the residential 

parent of the child." 

{¶21} Kitti's sole assignment of error is meritorious. Accordingly, the judgment of 

the trial court is reversed and remanded to the trial court for an evidentiary hearing on the 

issue of parental rights and responsibilities of the parties' minor child, Christopher. 

Donofrio, J., concurs. 

Vukovich, J., concurs.