COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67814 & 68044 CAROL PISANI, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION GLEN PISANI, : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 25, 1996 CHARACTER OF PROCEEDING : Civil appeals from : Common Pleas Court : Case No. D-219910 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Michael Terrence Conway MICHAEL TERRENCE CONWAY & ASSOCIATES 18848 Canyon Road Fairview Park, Ohio 44126 Carol Pisani 30 Commons Court Chagrin Falls, Ohio 44022 For defendant-appellee: Richard S. Koblentz Peter A. Russell 75 Public Square Suite 1025 Cleveland, Ohio 44113 Guardian Ad Litem: William J. Heine 950 Standard Building 1370 Ontario Street Cleveland, ohio 44113 -3- NAHRA, J.: Appellant, Carol A. Pisani, is appealing the trial court's order concerning the allocation of parental rights between herself and appellee, Glen T. Pisani, in Case No. 67814. She is also appealing the court's order concerning division of property, in Case No. 68044. Appellee is cross-appealing the trial court's ruling that appellant's child support obligation is not retroactive to the date of appellee's motion for child support in Case No. 68044. For the following reasons, we affirm. The referee's report dated May 11, 1994, concerning the allocation of parental rights states the following facts: The parties were married in 1976 and had two children, Carly (d.o.b. September 1, 1980) and Kyle (d.o.b. May 12, 1985). In the summer of 1992, divorce proceedings were initiated. The children resided in the marital home with their mother. A series of emotionally charged events occurred, precipitated by the conduct of appellant. Appellant's conduct included hitting and pinching the children, pulling Carly's hair, depriving the children of food as punishment for appellee, and physically attacking appellee in front of the children. Appellant asserted that appellee manipulated her to do these things, and that he had beat her and cheated on her. The police were sometimes called to intervene in these conflicts. Dr. McPherson, a psychologist, was appointed by the court to conduct a custody evaluation. In September of 1992, after another incident occurred, Dr. McPherson determined that the children -4- should then be placed in their father's custody. Appellee moved into the marital home with the children, and appellant moved out. Appellant had supervised visitation in the office of psychologist, Dr. Crawford. A transcript of Dr. Crawford's testimony was available for this court's review. Dr. Crawford testified that the children stated they were afraid of their mother because she would lose control. The doctor felt appellant posed a danger to the children because she easily went out of control. The children were upset about their mother's constant phone calls to their residence, sometimes thirty or more calls in one day, often late at night. Appellant's driving by their home, in violation of court order, also upset the children. During visitation, appellant discussed inappropriate topics such as divorce and sexual issues. Appellant provoked the children if they made any negative comments. Dr. Crawford felt appellant's behavior alienated the children. She made suggestions of how appellant could change her behavior, but appellant did not change. Dr. Crawford believed the children's fear of their mother would be alleviated if she stopped the phone calls and drive-bys. Around November or December, 1992, Mrs. Pisani was permitted unsupervised visits with the children. In June of 1993, the unsupervised visits were suspended, following an incident where appellant tailgated appellee and the children. Dr. Crawford conducted supervised visitations for a period, and then unsupervised visits were allowed. In December, 1993 another incident occurred which caused visitation to cease. Mrs. Pisani -5- then refused to attend supervised visits because she did not approve of Dr. Crawford. Dr. Crawford opined that the children should not have unsupervised visits with their mother. Supervised visits would be totally unworkable at present, unless Mrs. Pisani changed her behavior. Mrs. Pisani's behavior became increasingly out of control. In February, 1994, Mrs. Pisani continued her excessive phone calls, in violation of court order, and left phone messages that upset the children. The appellant's expert, Dr. Rosewater, testified that appellant had battered women's syndrome. Appellant's loss of control and anger are manifestations of this syndrome. Dr. Rosewater felt that appellee should not be awarded custody, and benefit from his battering of appellant. Appellee denied battering appellant. Dr. McPherson testified that appellant did not fit the profile of battered women's syndrome, although appellant may have been battered. A transcript of Dr. McPherson's testimony was available to this court. Dr. McPherson testified that although both parties had personality problems, the appellee was better able to make a safe and secure place for the children. Appellant's impulsive and destructive actions placed the children in a psychologically and sometimes physically unsafe situation. Dr. McPherson believed that extraordinary efforts were made for appellant to have visitation. Dr. McPherson recommended custody to the appellee, and unsupervised visitation with appellant, with a "check-in" by a supervisor. -6- Visits should be conditional upon obeying court orders concerning phone calls to the father's and childrens' residence, and driving by their residence; and, also, no discussion of divorce or adult issues. If appellant disobeys the conditions, visitation should be curtailed for that week. If a crisis happens, visitation should cease, the crisis should be resolved therapeutically, and then visits start up again "rather immediately." Eventually, appellant should have normal, unsupervised visits, provided she complies with the above conditions. The referee interviewed both children in camera. Carly stated she wanted to live with her father. She does not trust her mother and does not want to be alone with her. Kyle also indicated he did not trust his mother. The Guardian Ad Litem testified that the appellee is functioning better at the present time, in terms of parenting the children. The Guardian reluctantly stated that visitation may not be appropriate at all at the present time. The referee heard testimony of other witnesses, including school officials, grandparents, family friends and police officers. During the hearing, appellant interrupted witnesses and threatened to sue one witness. On several occasions, she had to be removed from the courtroom. The referee commented that this behavior raised serious concerns about the safety of the children, physically and emotionally, when in appellant's care. The referee concluded that regularly scheduled visitation is not in the best interest of the children at this time. Visitation -7- may be had after a substantial period free of negative behavior by appellant. The trial court adopted this recommendation. I. Appellant's first assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL AND CONSTITUTIONAL ERROR BY REFUSING TO AWARD REASONABLE CHILD VISITATION AND CUSTODY TO THE APPELLANT AT THE CONCLUSION OF THE PLAINTIFF'S CASE BELOW. A noncustodial parent's right of visitation with his children is a natural right and should be denied only under extraordinary circumstances, such as unfitness of the noncustodial parent or a showing that visitation with the noncustodial parent would cause harm to the children. Pettry v. Pettry (1984), 20 Ohio App.3d 350, syllabus. See also, Johntonny v. Malliski (1990), 67 Ohio App.3d 709, R.C. 3109.051(A). If there is clear and convincing evidence that visitation presents a significant risk of serious emotional or physical harm to the child, the court may deny visitation. Pettry, Johntonny, supra. Such a situation may arise due to the mental illness of the non- custodial parent. Davis v. Davis (1988), 55 Ohio App.3d 196. In this case, there was evidence appellant had physically and emotionally harmed the children. The emotional harm even continued in supervised visitations. Two psychologists testified that appellant presented a danger to her children, and that appellant is out of control. Dr. Crawford and the guardian ad litem felt that even supervised visits were not workable, unless appellant changed her behavior. At the time of trial there was no indication appellant improved or was willing to improve her behavior. Dr. McPherson believed supervised visitation was possible, but -8- recommended that visits be conditional upon appellant's cessation of phone calls and drive-bys. In accordance with this evidence, the court ordered that visitation cease, but noted that visitation may resume after a period free of negative behavior by the appellant. Denial of visitation was proper here, because there was clear and convincing evidence that visitation presented a significant risk of serious emotional and physical harm to the children. The facts of this case are similar to Johntonny, supra, where visitations were suspended because the father verbally abused the child. Visitation was suspended in that case until the father recognized and resolved the problem, similar to the trial court's resolution of this case. Appellant contends that denial of visitation cannot be used as a sanction for contempt for her violating court orders concerning telephone calls and drive-bys, or as a sanction for appellant's courtroom outbursts. See Andrulis v. Andrulis (1985), 26 Ohio App.3d 164, Truitt v. Truitt (1989), 65 Ohio App.3d 126. The trial court did not use denial of visitation as a sanction. The trial court did note that the telephone calls, drive-bys and courtroom behavior were evidence of appellant's out of control behavior. The psychologists suggested that visitation cease until appellant could demonstrate she was in control by stopping these negative behaviors. It was also necessary for the phone calls and drive- bys to stop, because they caused the children to fear and distrust their mother, which in turn made visitation difficult. -9- We find that the trial court did not abuse its discretion in denying visitation to appellant while leaving the door open for restoration of visitation upon a proper showing by appellant pursuant to the court's order. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ORDERING THE PLAINTIFF TO PAY APPROXIMATELY EIGHTY PERCENT OF THE GUARDIAN AD LITEM'S FEE BILLS. The referee's report dated July 26, 1994, stated that the guardian ad litem fees totalled $49,838. $19,700 of this amount resulted from the guardian's participation in the 40-day trial. The referee found the parties each responsible for half of the $19,700. $3,600 of the guardian's fees resulted from appellant's firing her attorney, which postponed trial for three months. The referee found appellant responsible for the $3,600. The remaining $26,538 of the fees was allocated 80% to appellant and 20% to appellee. The referee reasoned that appellant was responsible for much of the fees because of her excessive phone calls to the guardian, and the actions of appellant which caused problems for the children, requiring appellee to contact the guardian. The referee found that the guardian's hourly rate was reasonable, and all the work performed was necessary. The trial court has broad authority to tax the guardian ad litem fees as costs. Pruden-Wilgus v. Wilgus (1988), 46 Ohio -10- App.3d 13, Civ.R. 75(B)(2). The court has discretion over the amount of the fees, as well as the allocation to either or both of the parties. Davis v. Davis (1988), 55 Ohio App.3d 196, 200, Robbins v. Ginese (1994), 93 Ohio App.3d 370. Fees may be allocated based on the parties' litigation success and economic status. Davis, supra. It is proper to allocate guardian ad litem fees based on which party caused the work of the guardian ad litem. Marsala v. Marsala (July 6, 1995), Cuyahoga App. No. 67301, unreported. In this case, it was proper for the court to allocate the majority of the fees to appellant, because her actions caused the fees to be incurred. Appellant contends the amount of fees was unreasonable, because the guardian billed for "non-productive time" spent on appellant's phone calls. Appellant further asserts that this work did not require legal training. Certain compensable guardian ad litem services may not require legal training. Robbins, supra. Communications to a party are not necessarily unproductive. If these calls were unproductive, it was due to appellant, and the guardian had no choice in the matter. Appellant apparently believed the calls were necessary at the time they were made. Under these circumstances, the trial court did not abuse its discretion in finding that all the work performed by the guardian was necessary. Accordingly, this assignment of error is overruled. III. -11- Appellant's third assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN MISCALCULATING THE PROPER DIVISION OF MARITAL ASSETS. This assignment of error contains two sub-assignments of error, the first of which states: 16K SEPARATE PROPERTY AWARDED TO DEFENDANT NOT SUPPORTED BY EVIDENCE. The referee's report dated July 26, 1994 states that appellee testified he purchased the parties' first home before the parties were married, using $16,000 of his separate property as the entire down payment. $3,000 came from appellee's personal savings, and $5,000 came from a loan from appellee's parents. Appellee's mother's testimony corroborated these two sources of funds. The rest came from appellee's selling his car, a fact admitted by appellant. Appellant testified that she contributed half of the down payment. The referee excluded testimony by Vincent Pinzone. Appellant submitted an affidavit of Pinzone as a proffer. The affidavit said the parties purchased the home through Pinzone's real estate brokerage firm. Pinzone represented the seller, while appellant's father (Pinzone's employee) presumably represented appellant and appellee. Appellant contributed money from her savings to the down payment. Pinzone could not remember the amount. The referee found that $16,000 was appellee's separate property and should be returned to appellee from the sale of the marital home. -12- Appellant contends the trial court erred in excluding Pinzone's testimony. The record does not reflect why the evidence was excluded, but the evidence may have properly been excluded under Evid.R. 602 and 801. Evid.R. 602 precludes a witness from testifying as to matters of which he has no personal knowledge. Pinzone's affidavit does not establish he had personal knowledge of the source of the down payment. If Pinzone acquired knowledge through a statement by appellant or another person (except for appellee), the statement would be inadmissible hearsay. Evid.R. 801. Appellant failed to demonstrate that the trial court abused its discretion in excluding this evidence. See In re Whaley (1993), 86 Ohio App.3d 304, 316. The trial court's award of $16,000 in separate property to appellee was supported by the competent, credible testimony of appellee, appellee's mother and in part by appellant's testimony. This court cannot reverse this award as against the weight or sufficiency of evidence. Seasons Coal Co., Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77, Hartford Cas. Ins. Co. v. Easley (1993), 90 Ohio App.3d 525, 530. The second sub-assignment of error under this assignment of error states: COURT FAILED TO REQUIRE DEFENDANT TO PROVIDE PLAINTIFF WITH A MOTOR VEHICLE AS PREVIOUSLY ORDERED. An earlier court order ordered appellee to provide appellant with an automobile. Appellant filed a motion to show cause seeking to have appellee held in contempt for appellee's failure to provide -13- an automobile. The referee recommended this motion be denied. Appellee was able to provide demonstrator cars to his wife because of appellee's employment at Ellacott Shaker Volkswagen. Ellacott Shaker repossessed the demonstrator vehicle driven by appellant because appellant disrupted Ellacott Shaker's business with a constant barrage of phone calls. An additional reason for repossession was that various demonstrator vehicles in the possession of the parties sustained damages. Appellee asserted that appellant caused the damages. The referee felt appellee should not be held in contempt because he had no control over his employer's repossession of the car. The trial court denied appellant's motion to show cause at page 7 of the divorce decree. Appellant mistakenly believes the motion to show cause was denied as moot and requests a hearing on the motion. In fact, it was denied on the merits. Appellant raised no other errors concerning this motion, and we fail to see how the trial court erred or abused its discretion concerning this ruling. Accordingly, this assignment of error is overruled. IV. Appellee's cross-assignment of error states: THE TRIAL COURT ERRED WHEN IT DEVIATED FROM THE CHILD SUPPORT GUIDELINES FOR THE PERIOD PRIOR TO THE ISSUANCE OF THE DIVORCE. The referee ordered appellant pay child support commencing May 10, 1994, although appellee had motioned for child support on October 1, 1992. The rationale was that appellant had to expend -14- money to start a new residence, including mortgage payments, furniture and household goods. In October, 1992, when appellee moved out of the marital home, the parties had not reached an agreement as to dividing the household goods and furniture. The court denied appellant's motion for retroactive spousal support pendente lite because, among other reasons, appellee fully supported the children. The court could have awarded such spousal support because appellee's income through the end of 1993 was $62,000, while appellant's income was about $27,000. The trial court has broad discretion to deviate from the level of support computed under the guidelines, if the deviation is in the best interest of the children and the court substantiates its decision with findings of fact. Gatliff v. Gatliff (1993), 89 Ohio App.3d 391, R.C. 3113.215(B)(3). The trial court may consider the following factors in determining whether the guideline figure is unjust, inappropriate or not in the best interest of the children: extraordinary costs associated with visitation, R.C. 3113.215(B)(3)(d); disparity in income between the parties, R.C. 3113.215(B)(3)(g); the assets, resources and needs of each parent, R.C. 3113.215(B)(3)(k); the standard of living and circumstances of each parent, R.C. 3113.215(B)(3)(l) and any other relevant factor, R.C. 3113.215(B)(3)(p). In this case, the trial court based its deviation on the above factors, and substantiated its decision with findings of fact. Appellee argues that the downward deviation was not in the best interest of the children. The record establishes that it was -15- in the best interest of the children that appellant move out of her parents' home, where she had moved after leaving the marital home, and establish a residence suitable for the childrens' visits. Dr. McPherson required that appellant establish this residence as a condition of visitation. The trial court found that appellant could not afford to establish this residence and pay child support. Appellee was capable of supporting the children and the children were not needy due to appellant's lack of support. The deviation was in the best interest of the children and necessary to prevent injustice. The trial court did not abuse its discretion in deviating from the guidelines. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -16- It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court -- Domestic Relations Division 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. PORTER, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA 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 .