COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67301 : PASQUALE MARSALA : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ROSA MARSALA : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from the Domestic Relations Division of the Common Pleas Court Case No. D-214302 JUDGMENT: Affirmed in Part, Reversed in Part, and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: RICHARD A. RABB, ESQ. JOYCE E. BARRETT, ESQ. McCarthy, Lebit, Crystal 800 Standard Building & Haiman 1370 Ontario Street 1800 Midland Building Cleveland, Ohio 44113 101 Prospect Ave., West Cleveland, Ohio 44115 JOHN D. ZOLLER, ESQ. Jerome and Zoller 1010 East Ohio Building 1717 East Ninth Street Cleveland, Ohio 44114-2803 - 2 - KARPINSKI, J.: This appeal arises from an order of the domestic relations court granting shared parenting of the parties' minor child Francesca, dividing the parties' marital property, and allocating various expenses incurred during the course of the litigation. Plaintiff-appellee Pasquale Marsala commenced this case by filing a complaint for legal separation against defendant- appellant Rosa Marsala in the domestic relations court on October 31, 1991. Pasquale Marsala subsequently filed an amended complaint for divorce and other relief during the course of the proceedings. Rosa Marsala, who moved with the parties' daughter Francesca from the marital home in Parma to her parents' home in Buffalo, New York on April 29, 1991, denied the allegations in the amended complaint. The parties engaged in extensive disputes concerning their daughter, Francesca, during the course of the proceedings. Rosa Marsala prevented Pasquale Marsala from visiting Francesca and was found in contempt of court prior to trial. The matter ultimately proceeded to a ten-day trial commencing September 27, 1993. The domestic relations court entered a seven-page journal entry following trial on February 24, 1994, which, among other things, directed Pasquale Marsala to resubmit his proposed shared parenting plan after making various suggested revisions. The court thereafter entered a shared parenting order on March 22, 1994. In a final decree journalized - 3 - on March 25, 1994, the court granted the parties a divorce, divided the parties' property, and allocated various costs. The trial court subsequently denied Rosa Marsala's motion for new trial and entered findings of fact and conclusions of law. Rosa Marsala timely appeals raising four assignments of error. Rosa Marsala's first assignment of error challenges the domestic relations court's shared parenting order as follows: THE TRIAL COURT ERRED IN ORDERING SHARED PARENTING AND ADOPTING A PLAN WHICH IT HAD ORDERED APPELLEE TO FILE. Rosa Marsala's first assignment of error lacks merit. Rosa Marsala argues the domestic relations court improperly adopted its own plan for shared parenting rather than adopting a plan submitted by one of the parties. Rosa Marsala also argues the domestic relations court's shared parenting order violates her constitutional right to travel. Based on our review of the record, Rosa Marsala has failed to show any such violation. The record indicates the domestic relations court followed the proper procedure for establishing a shared parenting plan in this case. R.C. 3109.04(D)(1)(a), which governs the procedure for adopting shared parenting plans, provides in pertinent part as follows: (iii) *** [I]f only one parent makes a request in his pleadings or files a motion and also files a plan, the court in the best interest of the children may order the other parent to file a plan for shared parenting in accordance with division (G) of this section. The court shall review each plan filed to determine if any plan is in the best interest of the children. If the court determines that one of the filed plans is in the best interest of the children, the court may approve the plan. If the court - 4 - determines that no filed plan is in the best interest of the children, the court may order each parent to submit appropriate changes to his own plan or both of the filed plans to meet the court's objections or may select one filed plan and order each parent to submit appropriate changes to the selected plan to meet the court's objections. If changes to the plan or plans are submitted to meet the court's objections, and if any of the filed plans with the changes is in the best interest of the children, the court may approve the plan with the changes. (Emphasis added.) As noted by Rosa Marsala, R.C. 3109.04 provides that a domestic relations court may not unilaterally impose its own shared parenting plan, but may offer suggestions as part of an interactive exchange of shared parenting plans. McClain v. McClain (1993), 87 Ohio App.3d 856, 857. The record demonstrates that Pasquale Marsala filed a motion for shared parenting, accompanied by a proposed plan, on September 25, 1992. Rosa Marsala opposed Pasquale Marsala's motion and plan for shared parenting, but did not file her own proposal. Following the trial in an order journalized February 24, 1994, the domestic relations court suggested modifications to Pasquale Marsala's proposed plan and directed Pasquale Marsala to resubmit a revised shared parenting plan within forty-five days. The record indicates that a "SHARED PARENTING PLAN" embodying these revisions was filed with the domestic relations court. The domestic relations court altered the document captioned "SHARED PARENTING PLAN" into a "SHARED PARENTING ORDER" by obliterating the word "PLAN" and substituting the handwritten word "ORDER." The "SHARED PARENTING ORDER" was journalized on - 5 - March 22, 1994. Under the circumstances, Rosa Marsala has failed to demonstrate the domestic relations court entered its own shared parenting order and ignored the requirements of R.C. 3109.04. Rosa Marsala also argues the SHARED PARENTING ORDER violates her constitutional "right to travel." The SHARED PARENTING ORDER requires the parties' minor daughter Francesca to return from Buffalo to Cuyahoga County and makes the primary residence and visitation of Francesca dependent upon whether Rosa Marsala elects to return. The ORDER provides that Francesca's primary residence be with Rosa Marsala if Rosa Marsala elected to return, and with Pasquale Marsala otherwise. The domestic relations court explained the basis for the SHARED PARENTING ORDER as follows: The Court further finds that immediately upon separation the Defendant [Rosa Marsala], supported by her family, began a course of conduct to remove the Plaintiff [Pasquale Marsala] from the child's life and to alienate the child from the Plaintiff. As a pretext for such conduct, the defendant cited the Plaintiff's alleged mental disorder and alleged acts of violence. These prompted demands for unreasonable supervised visits and many legal actions against Plaintiff. All of these allegations were false and designed solely to drive this man from his child's life. The Court further finds that it was not until February of 1993 that some type of reasonable visitation program was instituted through the intervention of the Court. Unfortunately such program was merely a stopgap measure which did not address the real problems in this case. Such problems are the excessive distance involved in visitations between Buffalo and Cleveland, the Plaintiff's three (3) shift work schedule which limits the number of weekends he is free to visit with his child (Since February, 1993, the Plaintiff has used much of his sick and vacation time to be available for weekends), and defendant's - 6 - undiminished desire to alienate the child from the Plaintiff. Therefore, this Court is faced with two equally unappealing resolutions of this case. To permit the Defendant to be the residential parent in Buffalo, New York will quickly lead to the unacceptable result of the Plaintiff being excluded from his child's life. As an alternative, the placement of the child with the Plaintiff, who has limited child rearing skills, here in Cleveland and the removal of the child from the defendant who has been her nurturing parent, is equally, undesirable. The Court further finds that some radical change must occur which removes the minor child from the negative environment in the Buffalo home and yet retains the Defendant's involvement in this child's life. Both parents must make sacrifices to meet the best interests of this child. (Domestic Relations Court's February 24, 1994, Journal Entry at pp. 3-4.) Since the SHARED PARENTING ORDER concerns the residence and visitation of the child and does not prohibit either party from travelling, Rosa Marsala's constitutional "right to travel" claim lacks merit. See Hunter v. Hunter (Aug. 12, 1992), Madison App. Nos. CA91-10-031 and CA91-11-034, unreported at p. 8. Under the circumstances, Rosa Marsala has failed to demonstrate the domestic relations court erred or abused its discretion concerning the SHARED PARENTING ORDER in this case. Accordingly, Rosa Marsala's first assignment of error is overruled. Rosa Marsala's second and fourth assignments of error challenge the domestic relations court's division of property as follows: - 7 - THE TRIAL COURT ERRED WHEN IT ORDERED THE RETURN OF CERTAIN PERSONAL PROPERTY TO APPELLEE WHICH WAS CLEARLY AND UNEQUIVOCALLY THE SEPARATE PROPERTY OF APPELLANT. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ITS DIVISION OF PROPERTY. Rosa Marsala's second assignment of error is well taken in part, but her fourth assignment of error lacks merit. Rosa Marsala argues the domestic relations court improperly found that (1) gifts of jewelry given by Pasquale Marsala to her during their marriage were not her separate property, (2) $100,000 of the value of the marital residence constituted Pasquale Marsala's separate property, and (3) she was entitled to less than one-half the marital value of Pasquale Marsala's PERS pension. Rosa Marsala also argues the domestic relations court improperly valued marital property as of April 29, 1991, the date when the parties separated, rather than the date of trial, approximately two and-one half years later, September 27, 1993. R.C. 3105.171 governs the division of property in divorce actions filed after January 1, 1991, as in this case. Schulte v. Schulte (1994), 71 Ohio St.3d 41, 44-45. Gifts acquired by either spouse during the course of a marriage are presumed to be marital property pursuant to R.C. 3105.171(A)(6)(a) unless there is clear and convincing evidence that the donor intended the item to be the exclusive property of the recipient spouse. Focke v. Focke (1992), 83 Ohio App.3d 552, 558. The record supports the finding of the domestic relations court that the items of women's jewelry were not the separate - 8 - property of Rosa Marsala. Although Pasquale Marsala purchased and gave the jewelry to Rosa Marsala during their marriage for her personal use, the domestic relations court determined there was not clear and convincing evidence that Pasquale intended to waive all his rights and interest in the items as marital property. As a result, contrary to Rosa Marsala's argument, the domestic relations court was not required to award the jewelry to her as separate property. However, the domestic relations court should not have awarded the jewelry to Pasquale Marsala as his separate property since there was no evidence tracing the purchase of these items to his separate funds. Based on our review of the record, the items constitute marital property and on remand should be divided by the domestic relations court accordingly. Rosa Marsala argues the domestic relations court improperly found that the original cost paid by Pasquale Marsala to construct the marital residence constituted his separate property. R.C. 3105.171(H) specifically provides, however, that the mere fact that property is titled to both spouses as in this case does not determine whether the property constitutes marital property or separate property. Moreover, a residence purchased by one spouse does not become marital property when the purchase is traceable to separate property such as Pasquale Marsala's $100,000 cash in this case. R.C. 3105.171(A)(6)(b); Green v. Green (1989), 64 Ohio App.3d 37, 40-41. The domestic relations court properly concluded that only the $48,000 appreciation - 9 - during the marriage after building the residence constituted marital property. Rosa Marsala also argues in passing that the domestic relations court improperly awarded her less than one-half the marital value of Pasquale Marsala's PERS pension. However, it is well established that, absent an abuse of discretion, a reviewing court will not substitute its judgment for that of the domestic relations court concerning the division of vested pension benefits and other marital property. Bisker v. Bisker (1994), 69 Ohio St.3d 608, 609. Contrary to Rosa Marsala's argument, the division of vested pension benefits need not be equal. Id. The domestic relations court in this case recognized that the uncertain and contingent nature of Pasquale Marsala's future PERS benefits warranted an unequal division. Under the circumstances, Rosa Marsala has failed to demonstrate the division of the PERS pension by the domestic relations court was inequitable, unreasonable, arbitrary or unconscionable. Finally, Rosa Marsala has failed to demonstrate the domestic relations court abused its discretion by using the date of their separation, rather than the date of trial, to value the marital property in this case. Berish v. Berish (1982), 69 Ohio St.2d 318; Gullia v. Gullia (1994), 93 Ohio App.3d 653, 666-667. Given the extended period of time between the parties' separation on April 21, 1991, and the trial date, approximately two and one- half years later, on September 27, 1993, the domestic relations - 10 - court could properly conclude that the earlier date was more appropriate for purposes of evaluating property. In fact, one court of appeals has held under similar circumstances that using the later date, as Rosa Marsala requests in this case, constitutes an abuse of discretion. Spychalski v. Spychalski (1992), 80 Ohio App.3d 10. Accordingly, Rosa Marsala's second assignment of error is well taken, in part, and her fourth assignment of error is overruled. Rosa Marsala's third assignment of error challenges the domestic relations court's order allocating attorney and guardian ad litem fees as follows: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO AWARD APPELLANT'S ATTORNEY FEES AND ORDERING HER TO PAY A CERTAIN PORTION OF THE GUARDIAN AD LITEM FEES. Rosa Marsala's third assignment of error lacks merit. Rosa Marsala argues the domestic relations court improperly (1) refused to order Pasquale Marsala to pay her attorney fees, and (2) ordered her to pay $3,500 of the guardian ad litem fees. It is well established, however, that a domestic relations court's determination concerning the award of attorney fees will not be reversed on appeal absent an abuse of discretion. Ingalls v. Ingalls (1993), 88 Ohio App.3d 570, 579-580. The domestic relations court's final decree explains its reasoning for the allocation of these expenses as follows: The Court further finds that both parties and the guardian ad litem have requested awards of fees in this case which far exceed what the parties should have - 11 - incurred. The sole reason for such excessive fees is the Defendant's [Rosa Marsala's] unending attempts to alienate the minor child from the Plaintiff and to deny the Plaintiff any contact with his child. After considering the factors set forth in Swanson v. Swanson 48 Ohio App.2d 85 (1976), the Court finds that it would be warranted in assessing all costs and expenses against the Defendant. Unfortunately, the defendant is without funds to meet such burden (except as to the bank account previously noted) and each party shall be responsible for their own attorney fees and expenses. As to the guardian ad litem fees, the Court has been greatly impressed with the services of the guardian ad litem and a full fee of $6,812.59 would easily be justified. However, the parties lack sufficient funds to adequately compensate the guardian ad litem. Those fees must therefore be reduced to $3,500.00 and are assessed against the Defendant. Plaintiff shall pay $3,500.00 to the guardian ad litem on or before July 1, 1994 and shall reduce the division of property payment then due to the Defendant by such sum. (Domestic Relations Court's March 25, 1994, Journal Entry at p. 6.) Based on our review of the record, Rosa Marsala has failed to demonstrate the domestic relations court abused its discretion concerning the allocation of these expenses. Accordingly, Rosa Marsala's third assignment of error is overruled. The judgment of the domestic relations court is hereby affirmed in part, reversed in part, and remanded for further proceedings concerning the disposition of the items of women's jewelry. - 12 - Judgment accordingly. It is ordered that appellee and appellant shall share the costs equally. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the domestic relations division of the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and .