[Cite as Hall v. Hall, 2010-Ohio-4818.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HARDIN COUNTY 

 

RYAN HALL, CASE NO. 6-10-01 

 PLAINTIFF-APPELLEE, 

 v. 

SHERYL R. HALL, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hardin County Common Pleas Court 

Domestic Relations Division 

Trial Court No. 2007 3144 DRA 

Judgment Affirmed 

Date of Decision: October 4, 2010 

 

APPEARANCES: 

John C. Filkins, for Appellant 

Howard A. Elliott, for Appellee 
Case No. 6-10-01 

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PRESTON, J. 

{¶1} Defendant-appellant, Sheryl R. Hall (hereinafter “Sheryl”), appeals 

the Hardin County Court of Common Pleas’ judgment entry granting plaintiffappellee’s, Ryan L. Hall (hereinafter “Ryan”), complaint for divorce. For the 

reasons that follow, we affirm. 

{¶2} Sheryl and Ryan were married on April 29, 1995. Two children 

were born as issue of the marriage: Shelby Hall (born in 1998) and Nolan Hall 

(born in 2002). The parties separated in August of 2006. At the time the parties 

separated, they were owners of real estate located at 450 East State Road, Elida, 

Ohio, which had been their marital residence. This house was built in 2000 during 

their marriage, and the cost of construction and acquisition of the building lot was 

around $200,000.00. Subsequently, the house was sold in 2006 for $190,000.00, 

and after discharging the existing mortgage on the property and a home equity 

loan, the balance of the sale and remaining equity equaled $68,000.00. This 

amount remains in escrow pending disposition by this Court. 

{¶3} Ryan filed a complaint for divorce on October 12, 2007, and on 

December 12, 2007, Sheryl filed a counterclaim for divorce. A guardian ad litem 

(hereinafter “GAL”) was appointed for purposes of investigating and reporting on 

the best interests of the children. After discovery was conducted, a final hearing 

on the matter was held on September 23-24, 2008. The magistrate issued its 
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decision on April 29, 2008, and subsequently, Sheryl filed objections to the 

magistrate’s decision. On November 20, 2009, the trial court sustained one of 

Sheryl’s objections, which concerned the issue of child support and has not been 

raised in this appeal, and overruled her remaining objections. 

{¶4} Sheryl now appeals and raises nine assignments of error. We elect 

to address Sheryl’s assignments of error out of the order in which they were 

presented in her brief. 

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED IN FINDING THAT THE 

APPELLEE WAS INTITLED [SIC] TO 100% OF THE 

PROCEEDS FROM THE SALE OF THE PARTIES’ 

MARITAL REAL ESTATE FOR THE APPELLEE FAILED 

TO TRACE THE FUNDS AND THE FUNDS WERE 

COMMINGLED. 

{¶5} In her first assignment of error, Sheryl argues that the trial court 

erred in finding that Ryan was entitled to all of the proceeds from the sale of the 

parties’ marital property when he had failed to trace the source of the funds as his 

separate property. 

{¶6} With respect to dividing assets in a divorce proceeding, the trial 

court first must determine whether property is marital or separate property. Schalk 

v. Schalk, 3d Dist. No. 13-07-13, 2008-Ohio-829, ¶6, citing Gibson v. Gibson, 3d 

Dist. No. 9-07-06, 2007-Ohio-6965, ¶29, citing R.C. 3105.171(B), (D). See, also, 

Lust v. Lust, 3d Dist. No. 16-02-04, 2002-Ohio-3629, ¶12. Pursuant to R.C. 
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3105.171(A)(3)(a)(i), marital property consists of “real and personal property that 

currently is owned by either or both of the spouses * * * and that was acquired by 

either or both * * * during the marriage.” Property acquired during a marriage is 

presumed to be marital property unless it can be shown to be separate. Barkley v. 

Barkley (1997), 119 Ohio App.3d 155, 160, 694 N.E.2d 989. With respect to this 

case, separate property, which is defined under R.C. 3105.171(A)(6)(a), among 

other things, specifically includes: “[a]n inheritance by one spouse by bequest, 

devise, or descent during the course of the marriage.” R.C. 3105.171(A)(6)(a)(i). 

Additionally, a party that claims certain property was “separate” bears the “burden 

of proof, by a preponderance of the evidence, to trace the asset to separate 

property.” Peck v. Peck (1994), 96 Ohio App.3d 731, 734, 645 N.E.2d 1300. See, 

also, Shilling v. Shilling, 6th Dist. No. OT-08-042, 2009-Ohio-1476. In order to 

meet this burden “the trier of fact [only needs] to believe that the existence of a 

fact is more probable than its nonexistence before [it] may find in favor of the 

party who has the burden to persuade the [judge] of the fact’s existence.” 

Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal.

(1993), 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539. 

{¶7} For purposes of appeal, this Court reviews a trial court’s 

classification of property as marital or separate property under a manifest weight 

of the evidence standard. Schalk, 2008-Ohio-829, at ¶6, citing Gibson, 2007-
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Ohio-6965, at ¶26, quoting Eggeman v. Eggeman, 3d Dist. No. 2-04-06, 2004-

Ohio-6050, ¶14, citing Henderson v. Henderson, 3d Dist. No. 10-01-17, 2002-

Ohio-2720, ¶28. Accordingly, we will not reverse the trial court’s judgment if the 

decision is supported by some competent, credible evidence. Eggeman, 2004-

Ohio-6050, at ¶14, citing DeWitt v. DeWitt, 3d Dist. No. 9-02-42, 2003-Ohio-851, 

¶10. In determining whether competent, credible evidence exists, “[a] reviewing 

court should be guided by a presumption that the findings of a trial court are 

correct, since the trial judge is best able to view the witnesses and observe their 

demeanor, gestures, and voice inflections, and use those observations in weighing 

the credibility of the testimony.” Barkley v. Barkley (1997), 119 Ohio App.3d 

155, 159, 694 N.E.2d 989, citing In re Jane Doe I (1991), 57 Ohio St.3d 135, 566 

N.E.2d 1181. 

{¶8} Specifically, at issue in this assignment of error is the disposition of 

the proceeds from the sale of the parties’ marital residence at 450 East State Road, 

Elida, Ohio. Sheryl claims that the money remaining from the sale of the marital 

residence was not separate property belonging to Ryan. Specifically, Sheryl 

argues that the trial court erred because Ryan failed to sufficiently trace the funds 

as his separate property when the funds had been commingled. We disagree. 

{¶9} First of all, “[t]he commingling of separate property with other 

property of any type does not destroy the identity of the separate property as 
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separate property, except when the separate property is not traceable.” R.C. 

3105.171(A)(6)(b). Thus, despite the fact that the inheritance may have been 

commingled with marital property, the inheritance could still be considered 

separate property as long as it could be traced. Peck, 96 Ohio App.3d at 734. 

After reviewing the record, we believe that there was some competent, credible 

evidence to support the magistrate’s finding that the proceeds from the sale of the 

marital residence were traced to Ryan’s separate property, which was the 

inheritance he had received from his father’s death. 

{¶10} The evidence presented at the final hearing was undisputed that in 

September 2000, while the parties were still married, Ryan and Sheryl entered into 

a contract with Alexander Homes to construct a house at 450 East State Road, 

Elida, Ohio. The construction contract for the marital residence was valued at 

around $196,000.00 and was secured by both a mortgage ($89,000.00) and a home 

equity loan. Under the terms of the construction contract, the parties agreed to 

first pay $107,000.00 towards the construction of the house before the bank would 

disburse the money for the loan. (Plaintiff’s Ex. 3). While the realty was titled in 

the name of both parties and both parties signed the mortgage, both Sheryl and 

Ryan testified that, as a result of Ryan’s father’s death in November 1999, Ryan 

received around $220,000.00 as an inheritance, and that a significant portion of his 

inheritance (at least $100,000.00) went towards the construction of the parties’ 
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marital residence. (Sept. 22, 2008 Tr. at 28, 52, 105-117); (Plaintiff’s Exs. 1, 2, 4, 

5). While both parties acknowledged that Ryan had received around $200,000.00 

as his inheritance, there was documentation illustrating that at least $101,118.01 

was received by Ryan and subsequently deposited into a bank account that was 

solely in his name. (Plaintiff’s Exs. 4, 16). Furthermore, there was documentation 

illustrating that Ryan had signed and drawn three checks made payable to 

Alexander Homes: (1) a check dated October 27, 2000, for $39,586.25; (2) a 

check dated December 11, 2000, for $19,244.75; and, (3) a check dated January 

16, 2001, for $47,503.50. (Id. at 117-18); (Plaintiff’s Ex. 6). These checks in total 

equaled approximately $107,000.00, which was the amount required under the 

construction contract before the bank would release the $89,000.00 for the loan. 

(Id.). Additionally, there was testimony that these checks were drawn out of 

Ryan’s inheritance money. (Sept. 22, 2008 Tr. at 117-18). 

{¶11} Despite the undisputed evidence, Sheryl attempts to argue that it was 

unclear which bank account Ryan had deposited his inheritance money into prior 

to using it for the construction of the marital house. However, along with Ryan’s 

documents evidencing the amounts he had received from his father’s estate and the 

subsequent amounts he had paid the construction company for the marital 

residence, Sheryl explicitly admitted at the hearing that Ryan had received around 

$200,000.00 as inheritance from his father’s death. (Sept. 22, 2008 Tr. at 23, 52) 
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(Plaintiff’s Exs. 1, 2, 4, 5). In addition, she explicitly admitted that he had used a 

significant portion of his inheritance, possibly at least $100,000.00, for the 

construction of the parties’ marital residence. (Sept. 22, 2008 Tr. at 23, 52). 

{¶12} Therefore, we believe there was competent, credible evidence to 

support the magistrate’s finding that Ryan had sufficiently traced a significant 

portion, which the parties agreed was at least $100,000.00, of the remaining 

proceeds from the sale of the marital residence to his separate property, which was 

his inheritance from his father’s estate. Compare, Freytag v. Freytag (Aug. 15, 

1994), 12th Dist. No. CA93-11-223, at *2-3 (holding that the husband made no 

attempt to trace the supposedly separate property from a joint bank account to an 

inheritance), Burns v. Burns, 12th Dist. Nos. CA2003-04-086, CA2003-04-089, 

2004-Ohio-2296, ¶¶16-17 (finding that despite the fact that the funds had been 

commingled with marital funds, there was competent, credible evidence that the 

funds were traceable from the CDs to the savings account to appellant’s separate 

property). Essentially, the sale of the marital residence only left $68,000.00 

remaining, and because there was considerably less remaining from the sale of the 

marital residence than what Ryan had, at minimum, contributed and successfully 

traced to his inheritance, it was reasonable for the magistrate to have awarded 

Ryan the entire proceeds from the sale of the marital residence. Thus, it was not 

an abuse of discretion for the trial court to have adopted this finding. 
Case No. 6-10-01 

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{¶13} Sheryl’s first assignment of error is, therefore, overruled. 

ASSIGNMENT OF ERROR NO. VII 

THE TRIAL COURT ERRED AS A RESULT OF ITS 

FINDING THAT APPELLANT OWES MONEY TO 

APPELLEE AS A RESULT OF HER USE OF MARITAL 

FUNDS FOR THE PURPOSE OF PROVIDING THE MINOR 

CHILDREN WITH A PLACE TO LIVE. 

{¶14} In her seventh assignment of error, Sheryl argues that the trial court 

erred in finding that she owed Ryan money as a result of her drawing on the 

parties’ home equity loan after the parties had separated. She argues that Ryan 

also had drawn money on their home equity loan, around $5,600.00, for various 

obligations, including his attorney fees and GAL fees. However, she claims that 

the trial court never explained why she had to repay Ryan, while Ryan was able to 

receive his portions of the hone equity loan free and clear. 

{¶15} In addition to what was stated above in the first assignment of error, 

when the parties sold their marital residence there was still an outstanding 

mortgage and a home equity loan remaining on the property, which were 

subsequently paid through the proceeds of the sale. At the final hearing, Ryan 

testified that when he went to close on the property, he discovered that the 

indebtedness of the home equity loan was substantially larger than he had 

expected. (Sept. 22, 2008 Tr. at 119). He later discovered that Sheryl had taken 

two loan advances against the home equity loan, totaling $11,600.00, 
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approximately ten days before Ryan closed on the house. (Id. at 120, 137-38); 

(Plaintiff’s Ex. 7). However, because Ryan had discovered the extra indebtedness 

right around the closing, in order to close on time, he had to sign the paperwork 

and agree to have the extra money deducted from the total, so that he was left with 

about $12,000 less in proceeds than he had originally expected. (Id. at 121). On 

cross-examination, Ryan did admit that he had also taken some advances on the 

equity loan after the parties had separated, which totaled $5,600.00, but said that 

he had been unaware of the two advances taken by Sheryl. (Sept. 24, 2008 Tr. at 

244-47). He stated that the advances he had taken were for the following 

obligations: his Allen County divorce attorney, the GAL for the Allen County 

divorce proceeding, the property taxes for the marital residence, mortgage 

payments for the marital residence, and the warranty insurance for the sale of the 

property. (Id.). 

{¶16} Ultimately, the trial court adopted the magistrate’s decision, who 

found that Sheryl owed Ryan $10,050.00 for the advances of the home equity loan 

she had taken shortly before the marital residence was sold. (Dec. 17, 2009 JE at 

3). The magistrate reasoned as follows: 

 Shortly before the marital residence was sold defendant 

took two loan advances against the parties’ home equity loan in 

the amount of $11,600.00. Plaintiff testified he was not aware of 

the transaction until the date of final closing 

 Defendant provided no accounting of the funds and could 

not recall as to how the monies were spent. 
Case No. 6-10-01 

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 Plaintiff also took loan advances against the home equity 

loan; however, all but $1,550.00 of the funds were used to pay 

real estate taxes and reduce the mortgage balance on the marital 

residence. 

 To the contrary, the actions of Defendant only reduced the 

total amount of sale proceeds from the realty to which Plaintiff 

would have been entitled since the same was determined to his 

separate, non-marital property. 

 Accordingly, Defendant should be ordered to repay and/or 

reimburse Plaintiff the sum of $10,050.00. ($11,600.00-$1,550.00) 

(Apr. 16, 2009 Mag. Dec.). 

{¶17} First, Sheryl claims that the trial court erred because there was no 

explanation given as to why she had to repay Ryan for her draws against the home 

equity loan, while Ryan was able to receive his portions of the hone equity loan 

free and clear. We disagree. The magistrate explicitly stated that Sheryl owed 

Ryan money because: the money from the sale of the marital residence was 

Ryan’s separate property; Sheryl’s draws substantially reduced Ryan’s separate 

property; and her draws were not justified at the final hearing. Furthermore, 

despite Sheryl’s argument, Ryan did not receive his portions of the home equity 

loan free and clear. On cross-examination, Ryan admitted that he had also taken 

several draws out against the parties’ home equity loan. However, Ryan later 

explained each draw he had taken out against the home equity loan, which 

included payments for the marital residence ($3,524.91), the marital residence’s 

property taxes ($1,503.41), his Allen County divorce attorney ($750.00), and the 

GAL’s fees for the Allen County divorce case ($800.00). (Sept. 24, 2008 Tr. at 
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244-48). Ryan explained that when Sheryl had moved out of the marital residence 

she stopped making payments on the house, and because his income alone was 

insufficient, he had to borrow money against the parties’ home equity loan in order 

to pay the debts on the marital residence. (Sept. 24, 2008 Tr. at 249). However, 

just like Sheryl’s unexplained draws, the fees for his divorce attorney and the GAL 

were not related to the marital residence, thus, the magistrate found that they were 

Ryan’s individual obligation, which he had already fulfilled when he sold the 

property, paid off the home equity loan, and received less proceeds out of the sale. 

Therefore, the magistrate did account for Ryan’s unrelated expenses when he 

reduced Sheryl’s original obligation to Ryan, $11,600.00, by $1,550.00 ($800.00 + 

$750.00), which was the amount of Ryan’s unrelated expenses. Therefore, Ryan 

did not receive all of the money from the home equity loan free and clear. 

{¶18} Assuming Ryan’s payments associated with the marital residence 

were justifiable, Sheryl also argues that she should not have to reimburse Ryan 

because she also used her home equity loan money to find a place to live and to 

provide basic necessities for herself and the parties’ children. Sheryl claims that 

she testified that “when she moved out of the marital residence, she had no 

residence of her own and had to obtain a place to live, furnish it, and provide basic 

necessities for herself and the minor children.” (Appellant’s Brief at 19). 

However, despite her claims to the contrary, after reviewing the record, we find 
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that Sheryl never testified about what she did with respect to her draws on the 

parties’ home equity loan, which is consistent with the trial court’s finding in its 

judgment entry. Furthermore, and more specifically, there is nothing in the record 

to support or corroborate the claim that she used the money for a place to live and 

to provide for the children. Therefore, given that the record is silent as far as what 

Sheryl did with the money, and that the proceeds from the sale of the residence 

(Ryan’s separate property) were substantially reduced as a result of Sheryl’s 

actions, we find that it was reasonable for the magistrate to order Sheryl to repay 

Ryan $10,050.00. As a result, we accordingly find that the trial court’s decision 

was not an abuse of discretion. 

{¶19} Sheryl’s seventh assignment of error is, therefore, overruled. 

ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ERRED BY ADOPTING THE SHARED 

PARENTING PLAN AS PRESENTED BY APPELLEE FOR 

THE EVIDENCE AT TRIAL ESTABLISHED THAT THE 

APPELLEE CANNOT COMMUNICATE WITH THE 

APPELLANT AND THE PARTIES ARE NOW RESIDING IN 

TWO DIFFERENT COUNTIES. 

ASSIGNMENT OF ERROR NO. IX 

THE TRIAL COURT ERRED AS A RESULT OF ITS 

FAILURE TO IDENTIFY THE APPELLANT AS THE 

RESIDENTIAL PARENT AND ITS FAILURE TO CONTINUE 

THE MINOR CHILDREN IN THE FINDLAY CITY 

SCHOOLS. 
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{¶20} In her second assignment of error, Sheryl argues that the trial court 

erred when it adopted Ryan’s proposed shared parenting plan when there was 

evidence that Ryan was not willing to communicate or work together with Sheryl. 

Similarly, in her ninth assignment of error, Sheryl argues that the trial court erred 

in failing to name her as the residential parent and failing to continue the minor 

children in the Findlay City Schools. 

{¶21} An appellate court reviews a trial court’s decisions on child custody 

matters for an abuse of discretion. Miller v. Miller (1988), 37 Ohio St.3d 71, 523 

N.E.2d 846; Erwin v. Erwin, 3d Dist. No. 14-05-45, 2006-Ohio-2661, ¶12; Swain 

v. Swain, 4th Dist. No. 04CA726, 2005-Ohio-65, ¶16. Due to the difficult and 

complicated nature of custody determinations, appellate courts must grant wide 

latitude to a trial court’s consideration of the evidence, and, thus, we will not 

reverse a child custody decision that is supported by a substantial amount of 

competent, credible evidence. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 

674 N.E.2d 1159; Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178, 

syllabus. An abuse of discretion connotes more than an error of judgment; rather, 

it implies that the court’s attitude was unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When 

applying the abuse of discretion standard, a reviewing court may not simply 

substitute its judgment for that of the trial court. Id. 
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{¶22} R.C. 3109.04(D)(1)(c) provides that whenever possible the trial 

court should adopt a shared parenting plan unless it is not in the best interests of 

the children. In determining the best interests of the children, the trial court must 

consider a number of factors, one of which includes the ability of the parents to 

cooperate and make decisions jointly, with respect to the children. R.C. 

3109.04(D)(1); (F)(2)(a). 

{¶23} Here, the trial court adopted the magistrate’s recommendation to 

adopt Ryan’s proposed shared parenting plan. (Dec. 17, 2009 JE at 1-2). With 

respect to the shared parenting plan, in his decision, the magistrate stated as 

follows: 

 Despite the parties ongoing problems over the selection of 

an appropriate school for the children, parenting time exchange 

arguments and denials of visitation and companionship they 

each communicated to the Guardian Ad Litem that the other 

party was a good parent and that the children loved them. 

 Both the Guardian Ad Litem and the undersigned place 

significant emphasis on such statements along with the fact that 

the children are very close, significantly attached, and bonded 

with each parent. RC 3109.04(F)(1)(c). 

 Although the parents love their children very much and 

have indicated a willingness to communicate with each other 

regarding the care and upbringing of the children they have not 

always demonstrated it. 

 As noted by the Guardian Ad Litem when not involved in 

court matters the parents can get along sufficiently to be directly 

involved in the cooperative effort required to provide the 

children are raised in a relatively stable environment. 

 Taking into consideration all of the applicable (relevant) 

factors to be considered under RC 3109.04(F)(1)(a) thru (j) in 

making a determination as to residential parent status and 
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consistent with the principle that whenever possible to the order 

or decree shall ensure the opportunity for both parents to have 

frequent and continuing contact with the children it is 

recommended that the Court adopt and approve the shared 

parenting plan presented by plaintiff for the reason that same 

would be in the best interest of the minor children. 

(Apr. 16, 2009 Mag. Dec. at 4-6). 

{¶24} Essentially, Sheryl argues that the trial court erred when it adopted 

Ryan’s proposed shared parenting plan instead of naming her as the residential 

parent. Additionally, and more particularly, Sheryl claims that there was evidence 

that Ryan was not willing to communicate or work together with her. In support 

of her argument, Sheryl cites to the following statements made by Ryan at the 

final hearing. When being questioned about whether he believed the GAL’s 

recommendation for a shared parenting plan utilizing a week on/week off system, 

Ryan was asked whether he believed he and Sheryl communicate about the 

children, and Ryan responded, “[n]ot at all.” (Sept. 22, 2008 Tr. at 123). 

Moreover, when being questioned about the possibility of having the children go 

to Findlay City School (where Sheryl lived), as opposed to Ada public school 

(where Ryan lived), Ryan responded, “[t]here’s no reason the children should ever 

have to live with their mother.” (Sept. 22, 2008 Tr. at 178). Based on this 

testimony, Sheryl argues that the trial court could not and should not have found 

that the parties have demonstrated an ability to cooperate and make decisions 
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together about parenting, and as a result, the trial court should not have adopted 

Ryan’s shared parenting plan. 

{¶25} First of all, the factor that the parties have demonstrated an ability to 

cooperate and make decisions together about parenting is only one factor out of 

many factors the trial court has to consider. Moreover, even though both of the 

parties may have made comments at the final hearing that they could not cooperate 

with one another, we believe that there was evidence in the record that illustrated 

that their actions throughout the proceedings demonstrated otherwise. At the final 

hearing, the GAL recommended that the trial court adopt a shared parenting plan 

because even though the parties had at times not communicated well with one 

another, when it came to their children Sheryl and Ryan were able to communicate 

and get along with one another. (Sept. 24, 2008 Tr. at 308). Furthermore, the 

GAL believed that they were both good parents and that given the circumstances 

the overall goal should be to give the children equal amounts of time with both 

parents. (Id). Moreover, despite their feelings towards one another, both Ryan 

and Sheryl admitted that they believed that the other one was a good parent and 

admitted that the children loved each of them. 

{¶26} Nevertheless, Sheryl argues that the trial court erred in adopting a 

shared parenting plan and not naming her the residential parent. However, we 

believe that the record demonstrates that a shared parenting plan was in the best 
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interest of the children. Moreover, because the weight to be given to the evidence 

and credibility of witnesses is primarily reserved to the trier of fact, we find that 

the trial court did not abuse its discretion in determining that shared parenting was 

in the best interest of the children. Barkley v. Barkley (1997), 119 Ohio App.3d 

155, 159, 694 N.E.2d 989. Furthermore, we find that the magistrate made the 

appropriate findings of fact and conclusions of law in recommending that the trial 

court adopt Ryan’s shared parenting plan. Along with listing a few specific 

findings of fact, the magistrate stated that he had considered all of the relevant 

factors pursuant to R.C. 3109.04(F)(1)(a) thru (j), and we believe that there was 

sufficient evidence for the magistrate to conclude that a shared parenting plan was 

in the best interests of the children. 

{¶27} With respect to the finding that the children should attend Ada and 

not Findlay City Schools, Sheryl cites to evidence she presented at the final 

hearing. In particular, she claims that she established that the children had already 

been attending Findlay City School system, and that there had been no reason to 

remove them and transfer them to the Ada School system. However, after 

reviewing the record, we believe that there was evidence to support the trial 

court’s decision to have the children continue to be enrolled in the Ada school 

system. While the oldest child, Shelby, had gone to Findlay City Schools the 

previous school year, at the time of the final hearing, both of the children were 
Case No. 6-10-01 

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going to school in Ada. Furthermore, the GAL believed that the Ada school 

system was a better school system, and that for stability purposes the children 

should remain enrolled in the Ada school system. (Sept. 24, 2008 Tr. at 298). 

Because Shelby had adjusted to the Findlay school system from her prior school 

system without any problems, the GAL believed that she would be able to adjust 

to the Ada school system similarly without any problems. (Id.). 

{¶28} Therefore, despite the evidence presented by Sheryl at the final 

hearing and as stated above, the weight to be given to the evidence and credibility 

of witnesses is primarily reserved to the trier of fact, and we find that the trial 

court did not abuse its discretion in determining that continuing the children in the 

Ada school system was in their best interest. 

{¶29} Therefore, Sheryl’s second and ninth assignments of error are 

overruled. 

ASSIGNMENT OF ERROR NO. III 

THE TRIAL COURT ERRED AS A RESULT OF ITS 

FINDING THAT THE WISHES OF THE MINOR CHILD 

SHOULD NOT BE CONSIDERED FOR THE CHILD DID 

DEMONSTRATE SUFFICIENT REASONING ABILITY TO 

MAKE A CHOICE. 

{¶30} In her third assignment of error, Sheryl argues that the trial court 

erred when it determined that the parties’ minor child did not demonstrate 

sufficient reasoning ability. 
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{¶31} R.C. 3109.04(B)(2)(b) states that if a trial court interviews a child 

for purposes of the section, the trial court must first determine the reasoning ability 

of the child. “If the court determines that the child does not have sufficient 

reasoning ability to express the child’s wishes and concern with respect to the 

allocation of parental rights and responsibilities for the care of the child, it shall 

not determine the child’s wishes and concerns with respect to the allocation.” 

R.C. 3109.04(B)(2)(b) (emphasis added). 

{¶32} After reviewing the transcript from the in camera interview of the 

parties’ oldest minor child, Shelby R. Hall (who was 10-years-old at the time of 

the interview), we believe that the magistrate’s finding that Shelby did not 

demonstrate sufficient reasoning ability to express her wishes was reasonable 

under the circumstances, and that the trial court did not abuse its discretion when it 

adopted the finding. In re Longwell (Aug. 30, 1995), 9th Dist. Nos. 94 CA 

006006, 94 CA 006007, at *1-2. The magistrate asked questions sufficient to 

ascertain whether the child could express her wishes and concerns with respect to 

the allocation of parental rights and responsibilities, and after reviewing Shelby’s 

answers, we believe that it was reasonable for both the magistrate and GAL to 

determine that Shelby did not demonstrate sufficient reasoning ability. 

Furthermore, we note that a child’s wishes are not controlling upon the trial court 

and are only one of among several factors a trial court considers to determine what 
Case No. 6-10-01 

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is in the child’s best interest. Kellogg v. Kellogg, 10th Dist. No. 04AP-382, 2004-

Ohio-7202, ¶19. And as we stated in our discussion above, we believe that the 

magistrate’s decision to adopt a shared parenting plan was reasonable, and that it 

was in the children’s best interests to adopt a shared parenting plan. Thus, the trial 

court’s subsequent decision was not an abuse of discretion. 

{¶33} Sheryl’s third assignment of error is, therefore, overruled. 

ASSIGNMENT OF ERROR NO. IV 

THE TRIAL COURT ERRED AS A RESULT OF ITS 

FAILURE TO FIND THAT THE APPELLEE HAD 

WITHHELD THE CHILDREN FROM THE APPELLANT BY 

TAKING THE CHILDREN OUT OF STATE FOR TWO 

WEEKS. 

ASSIGNMENT OF ERROR NO. VI 

THE TRIAL COURT ERRED WHEN IT FAILED TO FIND 

THAT THE APPELLEE VIOLATED THE ORDERS OF THE 

COURT WHEN THE APPELLEE ADMITTED THAT HE 

HAD CONSUMED ALCOHOL IN THE PRESENCE OF THE 

MINOR CHILDREN. 

{¶34} In her fourth and sixth assignments of error, Sheryl argues that the 

trial court erred in failing to find Ryan in contempt when Ryan allegedly withheld 

the parties’ minor children from her for a period of two weeks and when he 

admitted to consuming alcohol in the presence of the minor children. 

{¶35} Contempt is a disregard of, or disobedience to, the orders or 

commands of judicial authority. Dozer v. Dozer (1993), 88 Ohio App.3d 296, 
Case No. 6-10-01 

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302, 623 N.E.2d 1272, citing State v. Flinn (1982), 7 Ohio App.3d 294, 455 

N.E.2d 691. A person may be punished for contempt for disobeying or resisting a 

lawful order, judgment, or command of the court. R.C. 2705.02; In re Ayer

(1997), 119 Ohio App.3d 571, 575, 695 N.E.2d 1180. The essential element of a 

contempt proceeding is that the person facing contempt charges has obstructed the 

administration of justice in some manner. State v. Kimbler (1986), 31 Ohio 

App.3d 147, 509 N.E.2d 99. While there must be clear and convincing evidence 

for the trial court to find someone in contempt, the decision of whether to find 

someone in contempt lies within the sound discretion of the trial court, and this 

court will not reverse its decision absent an abuse of discretion. Ayer, 229 Ohio 

App.3d at 575; Dozer, 88 Ohio App.3d at 302, citing Chaudhry v. Chaudhry (Apr. 

8 1992), 9th Dist. No. 15252; Boone v. Brown, 3d Dist. No. 5-06-14, 2006-Ohio5967; State ex rel. Ventrone v. Birkel (1981), 65 Ohio St.2d 10, 11, 417 N.E.2d 

1249. 

{¶36} Here, the trial court overruled all pending motions for contempt 

because there was a lack of competent, credible evidence to support making such 

findings. (Apr. 16, 2009 Mag. Dec. at 17); (Dec. 17, 2009 JE at 3). Nevertheless, 

Sheryl argues that the trial court should have found Ryan in contempt when he 

took the minor children for two weeks on vacation without giving Sheryl the 

proper 30-day notice that was required under the temporary order, and when Ryan 
Case No. 6-10-01 

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admitted to consuming alcohol in the presence of the children, which was in 

contravention of the custody order. However, after reviewing the record, we 

believe that the trial court’s decisions were reasonable given the lack of 

competent, credible evidence to support any findings of contempt. 

{¶37} At the temporary order hearing, Sheryl testified that Ryan had 

improperly taken the children out of state for two weeks and that she had to utilize 

the Ada Police Department in getting them returned to her. (July 22, 2008 Tr. at 

143-46). Conversely, Ryan testified that he was entitled to the vacation time and 

that he had given Sheryl a 32-day notice prior to taking the children on vacation 

with him. (July 22, 2008 Tr. at 66-67). The only other evidence Sheryl relies on 

is the GAL’s testimony, specifically when the GAL acknowledged that she was 

aware Sheryl had to enlist the assistance of the Ada Police Department in 

retrieving the children from Ryan when he had taken them on vacation with him. 

(Sept. 24, 2008 Tr. at 355). However, it is clear that the GAL only said that she 

was aware that Ryan had taken the children on vacation and that Sheryl had called 

the police in connection with the matter, but offered nothing as far as whether 

Ryan had done so in violation of a court order. (Id.). Furthermore, we note that 

the GAL stated that Ryan had given her prior notice that he was planning on 

taking the children out of state on vacation. (Sept. 24, 2008 Tr. at 355-56). 

Overall, this evidence alone does not support a finding that Ryan had acted in 
Case No. 6-10-01 

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violation of the custody order; therefore, we believe that the trial court’s 

determination was reasonable and not an abuse of discretion. 

{¶38} Next, Sheryl claims that the trial court should have found Ryan in 

contempt for admitting that he had consumed alcohol in the presence of the 

parties’ minor children. After a temporary order hearing concerning the allocation 

of parental rights and responsibilities, in its order the court specifically prohibited 

the “parent that has care of the children from consuming alcoholic beverages.” 

(Jan. 7, 2008 JE). Sheryl again cites to the GAL’s testimony in support of her 

position, in which the GAL testified that she was aware of the court order 

prohibiting the use of alcohol during parenting time, and that she was also aware 

that Ryan had admitted to consuming alcohol in the presence of the parties’ minor 

children since that order had been issued. (Id. at 338). However, while the 

statement about the alleged misconduct may have been true, there was no evidence 

about the nature of the conduct or even if the conduct had impacted the children in 

any way. Without more, there is only evidence to show that a technical violation 

may have occurred and this Court has held that technical violations of a court 

order do not necessarily require a finding of contempt. Miller v. Miller, 3d Dist. 

No. 7-03-09, 2004-Ohio-2358, ¶12. Therefore, given the lack of additional 

evidence concerning Ryan’s misconduct, we believe that the trial court’s decision 

was reasonable and not an abuse of discretion. 
Case No. 6-10-01 

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{¶39} Sheryl’s fourth and sixth assignments of error are, therefore, 

overruled. 

ASSIGNMENT OF ERROR NO. V 

THE TRIAL COURT ERRED AS A RESULT OF ITS 

FAILURE TO ORDER THE EQUITABLE DIVISION OF 

PERSONAL PROPERTY. 

{¶40} In her fifth assignment of error, Sheryl argues that the trial court 

erred in not ordering an equitable division of the parties’ personal property. In 

particular, Sheryl challenges only a portion of the division of the marital property, 

specifically those items from the parties’ marital residence that were placed in 

storage by Ryan and, in her opinion, were not equally distributed by the trial court. 

{¶41} R.C. 3105.171(C)(1) governs the division of marital property and 

provides, in part: 

[T]he division of marital property shall be equal. If an equal 

division of marital property would be inequitable, the court shall 

not divide the marital property equally but instead shall divide it 

between the spouses in the manner the court determines 

equitable. 

{¶42} First of all, we note that “[a]lthough an equal division is a starting 

point when allocating marital property and debt, a decision need not be equal to be 

equitable.” Shaffer v. Shaffer, 3d Dist. No. 11-04-22, 2005-Ohio-3884, ¶25, citing 

R.C. 3105.171(C)(1); Lust, 2002-Ohio-3629, at ¶25. Trial courts generally have 

broad discretion in determining the equitable distribution of property in divorce 
Case No. 6-10-01 

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cases; and therefore, we review the overall appropriateness of the trial court’s 

property distribution under an abuse of discretion standard. Martin v. Martin, 3d 

Dist. No. 9-03-47, 2004-Ohio-807, ¶6, citing Lust, 2002-Ohio-3629; Bisker v. 

Bisker (1994), 69 Ohio St.3d 608, 635 N.E.2d 308; Martin v. Martin (1985), 18 

Ohio St.3d 292, 480 N.E.2d 1112. An abuse of discretion implies that the trial 

court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore, 5 

Ohio St.3d at 219. 

{¶43} Here, Sheryl claims that when they separated, Ryan moved out of 

the marital residence and took all of the household items and placed the items in 

storage. Similarly, Ryan testified that, with the exception of the few items he had 

circled on Defendant’s Exhibit K, all the remaining items from the parties’ marital 

residence were either in storage or being used by him – with the larger percentage 

of the items listed in the exhibit being in storage. (Sept. 22, 2008 Tr. at 198-203). 

Ryan argued at the final hearing that he should be given all of the items in the 

storage unit because he had been paying the storage bill, while Sheryl only wanted 

the trial court to make a fair, equitable division of the household goods in the 

storage unit. Ultimately, the trial court adopted the magistrate’s proposed 

alternate selection process for division of the property between the parties: 

 All items of personal property that have not been divided 

and remain in storage (Defendant’s Exhibit K) should be divided 

between the parties as follows: Defendant shall have the option 

to select first, in which case Plaintiff shall select the next two 
Case No. 6-10-01 

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items and thereafter alternate their selection with the party 

having selected first, selecting the fourth item. Each party 

should pay one half of the storage fee. 

 Each party should be awarded, free and clear of any claims 

of the other, all household goods and furnishings presently in 

their possession and pay and hold harmless the other on any 

debt due and owing on same. 

(Apr. 16, 2009 Mag. Dec. at 11-12); (Dec. 17, 2009 JE at 3). 

{¶44} Sheryl claims that the trial court failed to divide the personal 

property Ryan had taken from the marital residence that did not end up in the 

storage unit and that it could not have made an “equitable” division when there 

was no evidence on the value of the household items. Nevertheless, it is clear 

from the trial court’s decision that the magistrate did divide the personal property 

not in the storage unit, and in fact, not only did Ryan retain all the items in his 

possession, but Sheryl was able to keep all the personal property in her possession. 

Furthermore, while generally in order to make an equitable division of property, a 

trial court should first determine the value of marital assets, there are 

circumstances when a trial court does not abuse its discretion when it does not 

value certain marital property. Casper v. DeFrancisco (Feb. 19, 2002), 10th Dist. 

No. 01AP-604, citing Eisler v. Eisler (1985), 24 Ohio App.3d 151, 152, 493 

N.E.2d 975; Richardson v. Richardson, 10th Dist. No. 01AP-1236, 2002-Ohio4390, ¶45. For example, it has been stated that even though “the trial court is 

required to consider the value of the parties’ major assets * * * the trial court 
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cannot be expected to place a value on each individual item of personal property 

owned by the parties.” Beagle v. Beagle, 10th Dist. No. 07AP-494, 2008-Ohio764, ¶41, quoting McCloud v. McCloud (Dec. 23, 2005), 6th Dist. No. F-05-006, 

¶22, citing Zona v. Zona, 9th Dist. No. 05CA0007-M, 2005-Ohio-5194, ¶5, citing 

Kohler v. Kohler (Aug. 14, 1996), 9th Dist. No. 96CA006313. We believe that it 

was well within the trial court’s discretion to order the household goods and 

furnishings in the storage unit be divided by a rotating selection. Motter v. Motter

(July 27, 2000), 3d Dist. No. 16-99-14, at *4-5, citing Frost v. Frost (1992), 84 

Ohio App.3d 699, 618 N.E.2d 198. And after reviewing the trial court’s entire 

division of property, we believe its decision was in fact equitable. 

{¶45} Finally, Sheryl seems to argue that the items in the storage unit have 

been improperly removed by Ryan; however, issues relating to the enforcement of 

a trial court order should be first presented to the trial court and not on appeal. If 

Ryan did improperly remove the household items from the storage unit prior to the 

parties’ utilizing the alternate selection process, the most appropriate remedy 

available to Sheryl would be to file a motion for contempt or show cause with the 

trial court. 

{¶46} Therefore, Sheryl’s fifth assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. VIII 

THE TRIAL COURT FAILED TO PROPERLY DIVIDE THE 

DEPENDENCY EXEMPTIONS AND IMPROPERLY USED 
Case No. 6-10-01 

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THE APPELLEE’S PRIOR INCOME TO DETERMINE 

DIVISION OF THE EXEMPTIONS. 

{¶47} In her eighth assignment of error, Sheryl argues that the trial court 

failed to properly divide the tax dependency exemptions and improperly used 

Ryan’s prior income to determine the division of the exemption. In particular, 

Sheryl claims that at the final hearing Ryan was not employed and his only source 

of income was unemployment compensation calculated at $12,744.00. On the 

other hand, Sheryl did have a job at the time of the final hearing and income of 

$15,184.00, which placed her within the same tax bracket as Ryan. Sheryl claims 

that because she was the only one employed she should have received both 

dependency tax exemptions. 

{¶48} An appellate court reviews a trial court’s award of tax exemptions 

under an abuse of discretion standard. Tuttle v. Tuttle, 10th Dist. Nos. CA2006-07-

176, CA2006-07-177, 2007-Ohio-6743, ¶11. 

{¶49} A trial court’s decision in awarding the federal income tax 

dependency exemption is governed by R.C. 3119.82, which states, in pertinent 

part: 

[w]henever a court issues, or whenever it modifies, reviews, or 

otherwise reconsiders a court child support order, it shall 

designate which parent may claim the children who are the 

subject of the court child support order as dependents for 

federal income tax purposes * * * If the parties agree on which 

parent should claim the children as dependents, the court shall 

designate that parent as the parent who may claim the children. 
Case No. 6-10-01 

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If the parties do not agree, the court, in its order, may permit the 

parent who is not the residential parent and legal custodian to 

claim the children as dependents for federal income tax 

purposes only if the court determines that this furthers the best 

interest of the children and, with respect to orders the court 

modifies, reviews, or reconsiders, the payments for child support 

are substantially current as ordered by the court for the year in 

which the children will be claimed as dependents. In cases in 

which the parties do not agree which parent may claim the 

children as dependents, the court shall consider, in making its 

determination, any net tax savings, the relative financial 

circumstances and needs of the parents and children, the 

amount of time the children spend with each parent, the 

eligibility of either or both parents for the federal earned income 

tax credit or other state or federal tax credit, and any other 

relevant factor concerning the best interest of the children. 

Pursuant to the statute, the custodial parent is presumed to be entitled to claim a 

minor child for income tax purposes, and a trial court may only award the tax 

exemption to a non-custodial parent if it finds that doing so serves the best 

interests of the child. Bobo v. Jewell (1988), 38 Ohio St.3d 330, 332, 528 N.E.2d 

180. However, under a shared parenting arrangement both parties are, in essence, 

deemed to be the residential parent, thus the presumption would not apply. 

Therefore, the trial court is essentially left to allocate the tax dependency 

exemption focusing on what is in the best interest of the children, which includes 

any net tax savings for either of the parents. See Singer v. Dickinson (1992), 63 

Ohio St.3d 408, 588 N.E.2d 805 (holding that a non-residential parent may receive 

the tax exemption when it produces a net tax savings for the parents in the best 

interests of the child); Love v. Rable, 147 Ohio App.3d 63, 2001-Ohio-2174, 768 
Case No. 6-10-01 

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N.E.2d 1185 (finding that a trial court has authority to award the tax exemption to 

the noncustodial parent if it is demonstrated that there will be a net tax savings for 

the parents, which advances the best interest of the child). 

{¶50} Here, based on the evidence the parties’ presented at the final 

hearing, the magistrate found that “[i]n the instant case the worksheet used to 

calculate Plaintiff’s temporary support obligation listed Plaintiff’s income from 

employment at $39,478.00 and Defendant’s income from self-employment at only 

$5,200.00. Defendant’s income places her in the 10% bracket. Plaintiff’s income 

from unemployment for 36 weeks at $12,744.00 places him in the 15% tax 

bracket.” (Apr. 16, 2009 Mag. Dec. at 16-17). As a result, the magistrate awarded 

both tax exemptions to Ryan as opposed to Sheryl, and given the circumstances of 

this case and the evidence in the record, we cannot find that the trial court abused 

its discretion when it adopted the magistrate’s finding and awarded Ryan both tax 

dependency exemptions. 

{¶51} Sheryl’s eighth assignment of error is, therefore, overruled. 

{¶52} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW, J., concurs. 

/jnc 
Case No. 6-10-01 

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ROGERS, J., concurs in part and dissents in part.

{¶53} I concur in the majority’s disposition of the second, third, fourth, 

fifth, sixth, eighth, and ninth assignments of error. However, I respectfully dissent 

from the majority’s finding in the first assignment of error that the home was 

Ryan’s separate property for the reasons set forth in Neville v. Neville, 3d Dist. No. 

9-08-37, 2009-Ohio-3817, ¶¶36-39 (Rogers, J., concurring in part and dissenting 

in part). Having disagreed with the result reached in the first assignment of error, 

I cannot agree with the logic applied by the majority in the seventh assignment of 

error.