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Date: 08-01-2022
Case Style:
ELIZABETH A. CROSS DEVITO vs. RICHARD L. DEVITO
Case Number: C-210523
Judge:
Ginger S. Bock; Presiding Judge
Marilyn Zayas
Beth A. Myers
concur
Court:
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
On Appeal From The Hamilton County Court of Common Pleas, Domestic Relations Division
Plaintiff's Attorney: Andrew G. Ice
Defendant's Attorney:
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Description:
Cincinnati, Ohio - Divorce lawyer represented Defendant-appellant with appealing the court’s entry granting plaintiff-appellee a divorce.
Wife and Husband were married on October 10, 2014. The following
year, Wife gave birth to their daughter. But in 2016, Husband was arrested and jailed
for producing child pornography. Two years later, he pleaded guilty to one count of
producing child pornography. See United States v. DeVito, S.D.Ohio Nos. 1:16-CR-115
and 1:121-CV-093, 2021 U.S. Dist. LEXIS 201884 (Oct. 19, 2021).
{¶3} In 2019, the federal trial court sentenced Husband to a 30-year term of
incarceration in a federal prison in South Carolina. Id. That year, Wife filed for divorce.
In 2021, the magistrate held a hearing to determine the division of property and
parental rights. The evidence consisted of financial documents, text messages, letters
from Husband to Wife, and testimony from Wife, Husband, and Husband’s mother.
Magistrate’s Decision
{¶4} In her decision with findings of fact and conclusions of law, the
magistrate explained, “The division of property is not equal but is an equitable division
given * * * that [Husband] * * * is serving 360 months in a federal prison and will not
be in a position to maintain employment, earn income or help support” the parties’
child. In addition, Wife was “entitled to a distributive award due to [Husband’s]
criminal actions that lead [sic] him to be incarcerated in prison for 360 months.” While
OHIO FIRST DISTRICT COURT OF APPEALS
3
the magistrate found that Husband had insufficient income to support their daughter,
he had “other assets, including his retirement accounts.” The magistrate determined
that Husband “would have been available to pay support and $923.56 for 201 months”
for a total of $185,635.56 if he were not incarcerated.
{¶5} The magistrate awarded Husband an “F350 Truck” and his inheritance
from his deceased father’s estate—interest in real property and a boat. The magistrate
designated the 2017 Ford Explorer as Wife’s separate property. And Wife was awarded
her current residential property. The magistrate found that Husband received
$10,275.32 from Wife and was responsible for $25,899.56 worth of “marital debts and
expenses” related to their daughter. Thus, the magistrate awarded Wife $28,546.72
“currently on deposit in [Wife]’s name” free and clear of any claim of Husband.
{¶6} Next, the magistrate identified five retirement accounts. The magistrate
found that “[Wife] has the following retirement accounts”: a Fidelity Investment Stock
Plan, a U.S. Bank Pension Account, and a U.S. Bank 401(k) Savings Plan. In addition,
the magistrate found that “[Husband] has the following retirement accounts”: a
Linamar Holdings 401(k) Savings and a PNC Bank IRA. The magistrate awarded Wife
“the entirety of the retirement plans and investment accounts, including any separate
property portion, free and clear of any claim of [Husband].”
{¶7} Turning to child custody and parenting time, the magistrate designated
Wife the residential parent and legal custodian of their daughter and ordered:
“[Husband] shall have in-person visitation with their child at [Wife]’s discretion and
shall have phone contact with their child at [Wife]’s discretion.” The magistrate made
detailed findings under the relevant parenting-time factors listed in R.C. 3109.051(D).
The magistrate concluded that it was in the child’s best interest not to require her to
visit Husband in prison, and that “any contact between [Husband] and [his daughter]
OHIO FIRST DISTRICT COURT OF APPEALS
4
take place in the presence and under the supervision of [Wife].”
{¶8} The magistrate found that Husband’s incarceration in a federal prison
in South Carolina limited his relationship and interactions with his daughter. See R.C.
3109.051(D)(1)-(3). At the time, their five-year-old daughter was “well-adjusted” to
life with Wife. See R.C. 3109.051(D)(4)-(5). In addition, Husband was convicted for an
offense involving abused children, and Wife believed unsupervised contact between
Husband and their daughter posed a risk to their daughter’s health and safety. See R.C.
3109.051(D)(7) and (11). The magistrate found that Husband lacked an
“understanding of the seriousness of his own behaviors and conduct” and
demonstrated an “unwillingness to take responsibility for his actions.” See R.C.
3109.051(D)(9) and (16). Further, the magistrate found that Wife had a history of
ensuring Husband access to their daughter. See R.C. 3109.051(D)(10).
{¶9} Wife and Husband filed objections to the magistrate’s decision. The
domestic relations court denied Husband’s objections, sustained Wife’s objection, and
adopted the magistrate’s decision with a modification. The domestic relations court
stated, “Under no circumstance must the child be forced to communicate with
[Husband], especially at a set time or unsupervised, given the nature of [Husband]’s
incarceration.” The domestic relations court identified a Best Buy 401(k) plan in
Husband’s name and awarded Wife “the entirety of the retirement plan free and clear
of any claim of [Husband].”
{¶10} The domestic relations court issued the divorce decree and terminated
the marriage. The decree incorporated the magistrate’s decision, as modified by the
court’s ruling on the objections.
{¶11} Husband appeals and raises three assignments of error.
OHIO FIRST DISTRICT COURT OF APPEALS
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II. Law and Analysis
Parenting Time
{¶12} In his first assignment of error, Husband challenges the allocation of
parenting time. He contends that the discretion afforded to Wife in the parenting-time
order was unjust and unreasonable under R.C. 3109.051.
{¶13} A domestic relations court “enjoys broad discretion when setting
parenting time and determining the conditions under which parenting time will take
place.” Cwik v. Cwik, 1st Dist. Hamilton No. C-090843, 2011-Ohio-463, ¶ 42. A court
abuses its discretion when it “ ‘exercis[es] its judgment, in an unwarranted way, in
regard to a matter over which it has discretionary authority.’ ” State v. Austin, 1st Dist.
Hamilton Nos. C-210140 and C-210141, 2021-Ohio-3608, ¶ 5, quoting Johnson v.
Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. In other words,
an abuse of discretion “implies that the court’s attitude, in reaching its decision, was
unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
{¶14} Parenting time “ha[s]the potential to affect countless aspects of a child’s
life, including the child’s relationships with his or her parents, the child’s relationships
with extended family, the child’s social and cultural upbringing, and even, in some
unfortunate cases, the child’s physical and emotional security.” Kelm v. Kelm, 92 Ohio
St.3d 223, 224-225, 749 N.E.2d 299 (2001). When a divorce proceeding involves a
child, the domestic relations court “shall make a just and reasonable order or decree
permitting each parent who is not the residential parent to have parenting time with
the child at the time and under the conditions that the court directs.” R.C. 3109.051(A).
If possible, the decree “shall ensure the opportunity for both parents to have frequent
OHIO FIRST DISTRICT COURT OF APPEALS
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and continuing contact with the child” unless contact with a parent is not in the best
interest of the child. Id.
{¶15} While a court enjoys discretion when establishing the conditions of
parenting time, it “must follow the dictates of R.C. 3109.051.” Cwik at ¶ 42. And the
court “must apply the factors and determine the parenting time plan that is in the
child’s best interest.” In re J.T., 2d Dist. Montgomery No. 26839, 2016-Ohio-602,
¶ 36, citing Braatz v. Braatz, 85 Ohio St.3d 40, 45, 706 N.E.2d 1218 (1999). When
establishing a parenting-time or visitation schedule, R.C. 3109.051(D) identifies 16
nonexhaustive factors that the domestic relations court must consider, including:
(1) The prior interaction and interrelationships of the child with the
child’s parent * * *;
(2) The geographic location of the residence of each parent * * * ;
(3) The child’s and parents’ available time;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
(6) * * * the wishes and concerns of the child * * *;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with
siblings;
(9) The mental and physical health of the parties;
(10) Each parent’s willingness to reschedule missed parenting time and
to facilitate the other parent’s parenting time rights, and with respect
to a person who requested companionship or visitation, the
willingness of that person to reschedule missed visitation;
OHIO FIRST DISTRICT COURT OF APPEALS
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(11) In relation to parenting time, whether either parent previously has
been convicted of or pleaded guilty to any criminal offense involving
any act that resulted in a child being an abused child or a neglected
child; * * * and whether there is reason to believe that either parent
has acted in a manner resulting in a child being an abused child or a
neglected child;
(12) In relation to requested companionship or visitation by a person
other than a parent* * *
(13) Whether the residential parent or one of the parents subject to a
shared parenting decree has continuously and willfully denied the
other parent’s right to parenting time in accordance with an order of
the court;
(14) Whether either parent has established a residence or is planning to
establish a residence outside this state;
(15) In relation to requested companionship or visitation by a person
other than a parent, the wishes and concerns of the child’s parents,
as expressed by them to the court;
(16) Any other factor in the best interest of the child.
{¶16} The domestic relations court “shall include in its final decree a specific
schedule of parenting time for that parent.” R.C. 3109.051(A). Yet, the court “may limit
or restrict visiting rights of a party in order to further the child’s best interest.”
Callender v. Callender, 7th Dist. Carroll No. 03-CA-790, 2004-Ohio-1382, ¶ 31.
{¶17} The magistrate’s decision, as incorporated into the divorce decree,
ordered that “[Husband] shall have in-person visitation with their child at [Wife]’s
discretion and shall have phone contact with their child at [Wife]’s discretion.” The
OHIO FIRST DISTRICT COURT OF APPEALS
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magistrate found that it was in the child’s best interest that all contact between
Husband and his daughter take place in the presence of Wife. The magistrate found
that “not granting an order requiring [the child] to visit [Husband] at prison” was in
the child’s best interest. The domestic relations court ordered “that under no
circumstance must the child be forced to communicate with [Husband], especially at
a set time or unsupervised, given the nature of [Husband]’s incarceration.”
{¶18} Husband argues that the award of parenting time at the discretion of
Wife was unjust and unreasonable. In particular, Husband maintains that Wife “can
cut off all contact with the child while the child is in her care.” In response, Wife argues
that the magistrate carefully considered the enumerated factors under R.C.
3109.051(D) when determining parenting time. Wife maintains that the magistrate’s
decision is reasonable and just, considering the detailed analysis of statutory factors.
{¶19} After reviewing the record, we find that the domestic relations court’s
parenting-time schedule was not unwarranted or unreasonable. The magistrate
considered, in her detailed findings, the enumerated statutory factors under R.C.
3109.051(D). Those findings were supported by the evidence in the record. At the
hearing, Wife expressed concern about the negative consequences of unsupervised
contact with Husband and mandatory in-person visitation. Still more, Wife testified
that, upon her daughter’s request, she would take her daughter to visit Husband in
prison. When Husband called his daughter, Wife entrusted their daughter with the
decision to speak with Husband. Significantly, testimony established that Husband
“never called on a schedule,” and his daughter’s schedule was “fluid.” That testimony,
combined with the facts and circumstances surrounding Husband’s conviction,
supports the decision to limit the child’s unsupervised contact with Husband at the
discretion of Wife. The parenting-time schedule was reasonable considering evidence
OHIO FIRST DISTRICT COURT OF APPEALS
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produced at trial. Therefore, we find no abuse of discretion and overrule Husband’s
first assignment of error.
Distributive Award
{¶20} Husband’s second and third assignments of error challenge the
distributive award of Husband’s separate property to Wife. In both his second and
third assignments of error, Husband argues that the distributive award of his property
was an abuse of discretion. First, he argues that the court failed to designate the Best
Buy 401(k) Plan, the Linamar 401(k) Plan, and his inheritance of approximately
$7,500 to $8,000 in cash from his deceased grandmother as separate property.
Second, he contends that his separate property was erroneously awarded to Wife.
{¶21} We review a domestic relations court’s property division in a divorce
proceeding for an abuse of discretion. Dunn v. Dunn, 1st Dist. Hamilton Nos. C010282 and C-010292, 2002-Ohio-6247, ¶ 12, citing Cherry v. Cherry, 66 Ohio St.2d
348, 421 N.E.2d 1293 (1981). R.C. 3105.171 governs the division of property in a
divorce, and a distributive award made “without following all of R.C. 3105.171’s
requirements” is an abuse of discretion. Akins v. Akins, 7th Dist. Carroll No. 12 CA
882, 2014-Ohio-4432, ¶ 57, citing Baker v. Baker, 4th Dist. Washington No. 07CA24,
2007-Ohio-7172, ¶ 31.
{¶22} In divorce proceedings, the domestic relations court shall “determine
what constitutes marital property and what constitutes separate property.” R.C.
3105.171(B). The statute imposes a mandatory duty on the trial court to classify
property as marital or separate before it makes any property division. Girton v. Girton,
4th Dist. Athens No. 08CA30, 2009-Ohio-4458, ¶ 6, citing Childers v. Childers, 4th
Dist. Scioto No. 05CA3007, 2006-Ohio-1391, ¶ 14. The findings must be in “sufficient
OHIO FIRST DISTRICT COURT OF APPEALS
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detail to allow for meaningful appellate review.” Girton at ¶ 6, citing Kaechele v.
Kaechele, 35 Ohio St.3d 93, 518 N.E.2d 1197 (1988), paragraph two of the syllabus.
{¶23} The parties’ marital property consists of real or personal property
owned by either spouse, including retirement benefits acquired during the marriage
and interest in those benefits. R.C. 3105.171(A)(3)(i)-(iv). Marital property “does not
include any separate property.” Boolchand v. Boolchand, 1st Dist. Hamilton Nos. C200111 and C-200120, 2020-Ohio-6951, ¶ 7. Separate property consists of, among
other things, “property acquired before the marriage and certain other property, such
as inheritances and gifts, acquired by one spouse during the marriage.” Id. at ¶ 8. A
spouse may retain separate property despite having comingled it with marital
property, because “[a]s long as it is traceable, separate property retains its identity.”
Id., citing R.C. 3105.171(A)(6)(b).
{¶24} Husband argues that the court failed to designate the Linamar and Best
Buy retirement accounts, and approximately $7,500 to $8,000 of inheritance money,
as his separate property. The magistrate and domestic relations court appeared to
designate the two accounts as his separate property. While these findings were not a
model of clarity, the retirement accounts were sufficiently identified as Husband’s
separate property. See Girton at ¶ 6.
{¶25} Yet, we find no mention of Husband’s inheritance money, held in Wife’s
U.S. Bank retirement account, in the decree. Failing to determine whether this money
was separate property was an error. At the hearing, Husband testified that he
deposited approximately $7,500 to $8,000 that he had inherited from his
grandmother into a savings account. Wife testified that she deposited $8,000 into a
joint checking account, before transferring $30,000 into her U.S. Bank retirement
OHIO FIRST DISTRICT COURT OF APPEALS
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account. The property was traceable, and the court should have determined whether
Husband’s inheritance from his grandmother was separate property.
{¶26} Following a determination of whether property is marital or separate,
the court “shall divide the marital and separate property equitably between the
spouses.” R.C. 3105.171(B). The statute requires an equal division of marital property
unless “an equal division of marital property would be inequitable.” R.C.
3105.171(C)(1). Determining what is equitable requires a consideration of the factors
listed in R.C. 3105.171(F). Neville v. Neville, 99 Ohio St.3d 275, 2003-Ohio-3624, 791
N.E.2d 434, ¶ 5.
{¶27} In addition to an equitable division of marital property, the court may
make a distributive award. A distributive award is “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 and do not constitute payments of spousal support.” R.C. 3105.171(A)(1).
{¶28} Distributive awards may be made for several reasons. See R.C.
3105.171(E)(1)-(5). First, a distributive award may properly “facilitate, effectuate, or
supplement a division of marital property.” R.C. 3105.171(E)(1). Second, the domestic
relations court “may make a distributive award in lieu of a division of marital property
in order to achieve equity between the spouses” if dividing the marital property would
be “impractical or burdensome.” R.C. 3105.171(E)(2). But this type of distributive
award requires a finding of impracticability or burden. Akins, 7th Dist. Carroll No. 12
CA 882, 2014-Ohio-4432, at ¶ 57, citing Baker, 4th Dist. Washington No. 07CA24,
2007-Ohio-7172, at ¶ 31. Third, a distributive award is proper “[i]f a spouse has
engaged in financial misconduct.” R.C. 3105.171(E)(4). Fourth, a distributive award is
appropriate if “a spouse has substantially and willfully failed to disclose marital
OHIO FIRST DISTRICT COURT OF APPEALS
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property, separate property, or other assets.” R.C. 3105.171(E)(5). When making a
distributive award, the court is required to “make written findings of fact that support
the determination that the marital property has been equitably divided.” R.C.
3105.171(G).
{¶29} Husband argues that the distributive award was unreasonable or
arbitrary due to the lack of evidence of financial misconduct. While the magistrate
failed to cite to R.C. 3105.171(E) in her decision, she suggested that financial
misconduct under R.C. 3105.171(E)(4) was the statutory basis for making the
distributive award. In her “conclusions of law,” the magistrate explained that a
distributive award may be based on one spouse’s “financial misconduct, including, but
not limited to, the dissipation, destruction, concealment, or fraudulent disposition of
assets.” In her analysis, the magistrate found that Wife “is entitled to a distributive
award due to [Husband]’s criminal actions that lead [sic] him to be incarcerated.” The
magistrate awarded most of the assets to Wife, including Husband’s inheritance
money and retirement accounts.
{¶30} Several appellate districts use a two-part test for determining financial
misconduct. See Elliot-Thomas v. Lewis, 9th Dist. Summit No. 29164, 2019-Ohio3870, ¶ 17. Under that test, a domestic relations court must find “ ‘(1) a wrongdoing by
one spouse that interferes with the other spouse’s property rights and (2) that the
wrongdoing results in profit to the wrongdoer or stems from an intentional act meant
to defeat the other spouse’s distribution of assets.’ ” Id., quoting Bucalo v. Bucalo, 9th
Dist. Medina No. 05CA0011-M, 2005-Ohio-6319, ¶ 30.
{¶31} Based on the reasoning in the magistrate’s decision and the domestic
relations court’s modification, the award was unreasonable and arbitrary. The
magistrate’s decision suggested that the distributive award was made under R.C.
OHIO FIRST DISTRICT COURT OF APPEALS
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3105.171(E)(4). But there is no evidence that Husband’s wrongdoing interfered with
Wife’s property rights, that Husband profited from his wrongdoing, or that the
misconduct was committed to defeat Wife’s property rights.
{¶32} In response, Wife argues that a court’s authority to make a distributive
award exists beyond R.C. 3105.171(E), because R.C. 3105.171(D) states “[e]xcept as
otherwise provided in division (E) of this section or by another provision of this
section, the court shall disburse a spouse’s separate property to that spouse.” She reads
that part of the section broadly to mean that a court may make a distributive award
under R.C. 3105.171(E) or “another provision of” R.C. 3105.171.
{¶33} But this ignores the unambiguous language of R.C. 3105.171(D). As
always, we must read the statutory text as a whole rather than “ ‘pick[ing] out one
sentence and disassociat[ing] it from the context.’ ” Jacobson v. Kaforey, 149 Ohio
St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 9, quoting Black-Clawson Co. v. Evatt,
139 Ohio St. 100, 104, 38 N.E.2d 403 (1941). Furthermore, we must “abstain from
inserting words where words were not placed by the General Assembly.” State ex rel.
Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio1484, 967 N.E.2d 193, ¶ 18, citing State ex rel. Cassels v. Dayton City School Dist. Bd.
of Edn., 69 Ohio St.3d 217, 220, 631 N.E.2d 150 (1994), citing State v. S.R., 63 Ohio
St.3d 590, 594-595, 589 N.E.2d 1319 (1992). In the context of the statutory scheme,
R.C. 3105.171(D) unambiguously establishes a rule requiring disbursement of a
spouse’s separate property to that spouse. This rule, of course, is subject to an
exception for distributive awards issued under R.C. 3105.171(E).
{¶34} We find nothing in the magistrate’s decision to justify a distributive
award under any part of the statute. There is no finding that a distributive award was
made to facilitate, effectuate, or supplement the division of marital property. See R.C.
OHIO FIRST DISTRICT COURT OF APPEALS
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3105.171(E)(1). Nor is there any determination that a division of marital property was
impractical or burdensome, therefore warranting a distributive award. See R.C.
3105.171(E)(2). And nothing suggests that Husband failed to disclose assets to Wife.
See R.C. 3105.171(E)(5).
{¶35} Finally, the statute is clear—distributive awards “do not constitute
payments of spousal support.” R.C. 3105.171(A)(1). The magistrate’s decision
ambiguously found that Husband “would have been available to pay support and
$923.56 for [the child’s support and tuition].” But the child-support worksheet
showed Husband’s child-support obligation to be $0. Because there was a $0 childsupport obligation, the distributive award could have been construed as spousal
support, which is improper under the statute.
{¶36} In sum, the decision suffers from multiple errors. The court failed to
identify, or designate, the money inherited by Husband as marital or separate
property. And without any evidence of financial misconduct by Husband, the
distributive award was improper under R.C. 3105.171(E)(4). The court’s desire to
provide financial support to Wife to balance Husband’s future inability to pay child
support is understandable. And a distributive award may be justified under R.C.
3105.171. But as currently written, the decision does not comport with the statutory
requirements. We sustain Husband’s second and third assignments of error and
remand the matter to the domestic relations court to determine what property is
separate, and to distribute the parties’ property consistent with this opinion.
Outcome: The domestic relations court’s parenting-time order was a reasonable
and warranted exercise of discretion considering the circumstances surrounding
Husband’s conviction and incarceration. But the domestic relations court abused its
discretion when it issued the distributive award under R.C. 3105.171(E)(4). We
therefore affirm the domestic relations court’s parenting-time order and reverse the distributive award. We remand the case to the domestic relations court to reconsider the division of assets and properly determine whether a distributive award is appropriate.
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