COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71968 CAROL ANN SCHWARTZ : : Plaintiff-Appellee : JOURNAL ENTRY : vs. : AND : ANDZEJ OSIATYNSKI : OPINION : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations D-234112 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: ANDREW J. SIMON JAMES E. POWELL Cameratta and Simon JOSEPH G. STAFFORD Security Federal Plaza Joseph G. Stafford & Assoc. 500 East Royalton Road #180 L.P.A. Broadview Heights, Ohio 44147 480 Lakeside Place 323 West Lakeside Avenue Cleveland, Ohio 44113 For Guardian Ad Litem: JANICE EDGEHOUSE RIETH 629 Euclid Avenue, Suite 1525 Cleveland, Ohio 44114 -2- O'DONNELL, J.: Andzej Osiatynski appeals and Carol Ann Schwartz cross-appeals from a decree of divorce entered by the Domestic Relations Division of the Common Pleas Court, and each party raises multiple assignments of error, alleging trial court errors and abuse of discretion in connection with orders in the decree concerning relocation to Florida, child support, visitation, property division, fees, valuation of assets, tax questions and arrearages. After conducting a thorough review of the record, we find no error or abuse of discretion, and, therefore, we affirm the judgment of the trial court for the reasons contained in this opinion. The record reveals that the parties married on October 17, 1982, and raised two minor children, Solomon now age 13, and Luba Shoshana, now age 11. Schwartz filed for the divorce, the court referred the matter to a magistrate for hearing, the parties objected to the magistrate's decision but, on December 31, 1996, the court adopted that decision. Osiatynski then appealed and raised nine assignments of error, while Schwartz cross-appealed and raised four cross-assignments of error, all of which we now review. Osiatynski's first assignment of error states: I. THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT AN INDEPENDENT AND DE NOVO REVIEW OF THE MAGISTRATE'S DECISIONS UPON APPELLANT'S OBJECTIONS. -3- Osiatynski alleges the trial court utilized only two business days to consider objections to the magistrate's decision and the evidence, and thereby failed to conduct a proper de novo review of the proceedings and, consequently, erred when it adopted the magistrate's decision. Schwartz contends the court complied with Civ.R. 53(E)(4)(b) and, hence, did not err when it adopted the magistrate's decision. The issue then for our review is whether the trial court erred when it adopted the magistrate's decision. We begin by examining Civ.R. 53(E)(4)(b) which states in relevant part: Upon consideration of any objections, the court may adopt, reject, or modify the magistrate's decision, hear additional evidence, recommit the matter to the magistrate with instructions, or hear the matter * * *. Furthermore, we note that the rule no longer requires the trial judge to conduct an independent review prior to making a determination mandated by Civ.R 53. See Staff Note: 7-1-95 Amendment, Rule 53(E). Here, the appellant speculated that the court failed to conduct a de novo review in the matter, because the court entered its judgment only four days after Osiatynski filed his final objections. The record reflects however, that Osiatynski submitted objections on September 3, December 9, and again December 27, 1996, and also, that the court adopted the magistrate's decision on December 31, 1996. Thus, while the record shows the court entered its judgment only four days after Osiatynski filed his December 27, 1996 objections, in reality, the court had four months to consider -4- the September 3 objections and almost three weeks to review and determine the merit of his December 9 objections. Under these facts, we cannot conclude the court did not independently review these objections and, accordingly, this assignment of error is overruled. Because Osiatynski's second and sixth assignments of error both challenge the court's allocation of parental rights and responsibilities, we shall consider them together. They state: II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ALLOWING APPELLEE TO RELOCATE WITH THE CHILDREN WHERE RELOCATION WAS NOT SHOWN TO BE IN THE BEST INTEREST OF THE CHILDREN. VI. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ORDERING AN ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES THAT IS CONTRARY TO LAW AND NOT IN THE BEST INTEREST OF THE PARTIES' CHILDREN. Osiatynski contends the court abused its discretion when it failed to issue a shared parenting order and, subsequently, granted Schwartz's motion to remove the children to Florida. Schwartz urges the court did not err because it properly determined the children's best interests. The issue then presented for our review concerns whether the trial court erred when it failed to issue a shared parenting order and then granted the appellee's motion to remove the children to Florida. -5- R.C. 3109.04 provides for the allocation of parental rights and states in pertinent part at S(A)(1): * * * if * * * no plan for shared parenting is in the best interest of the children, the court, in a manner consistent with the best interest of the children, shall allocate the parental rights and responsibilities for the care of the children primarily to one of the parents, designate that parent as the residential parent and the legal custodian of the child, and divide between the parents the other rights and responsibilities for the care of the children * * *. An appellate court must uphold the trial court's allocation of parental rights and responsibilities, absent an abuse of discretion which implies that the court's attitude is unreasonable, arbitrary or unconscionable. Masters v. Masters (1994), 69 Ohio St.3d 83. Here, based upon her observations and the testimony of Dr. Mark Lovinger, a clinical psychologist, Mary Ann Theby, of Family Conciliation Services, and Janice Edgehouse Rieth, the children's guardian ad litem, the magistrate stated in relevant part, in its March 28, 1996 decision: Throughout the pendency of this matter, the parents have shown little ability or inclination to cooperate and to make decisions jointlywith respect to the children. In fact, their inability to communicate and their hostility to one another have dominated their behavior. * * * To hope that they will ever treat each other with civility and respect appears out of reach at present. (Emphasis added). The magistrate further stated in pertinent part in its October 24, 1996 decision: At this time the long-held belief of the children, that this prolonged intense fight between their parents will never end, has reached crisis proportions. After referral to Family Conciliation Service * * * Theby saw the two children * * * at which time she became -6- seriously concerned about the level of depression observable in the older child. * * * The most difficult thing for him is having to wait for decisions on where he is going to live. Both children are equally clear on their desire to be with their mother * * *. The magistrate recommended that the court allocate the parental rights and responsibilities to Schwartz and grant her permission to move the children to Florida because they expressed a desire to live with her there. Based upon the evidence adduced at the hearing before the magistrate, the court's judgment adopting the magistrate's decision in connection with these matters does not constitute an abuse of discretion, and we conclude the court did not err when it allocated parental rights and responsibilities in this case. Osiatynski separately argues the court erred when it admitted the testimony of Lovinger, in the absence of a waiver of the children's physician-patient privilege, and the testimony of Theby, since she failed to file a written report five days prior to the hearing. However, the record reflects that Osiatynski called Lovinger as his own witness, and pursuant to the "invited-error" doctrine, he may not now prevail on an alleged error which he himself invited. See State ex rel. Bitter v. Missig (1995), 72 Ohio St.3d249. Further, Osiatynski failed to request a written report from Theby, pursuant to R.C. 3109.04(C), in order to obtain that report. Accordingly, these assignments of error are overruled. Osiatynski's third and fourth assignments of error both relate to court orders affected by Schwartz's relocation to Florida and shall also be considered together. These state: III. -7- THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO MODIFY THE VISITATION ORDER AFTER GRANTING APPELLEE PERMISSION TO RELOCATE. IV. THE MAGISTRATE ERRED AND ABUSED HER DISCRETION IN FAILING TO MODIFY THE APPELLANT'S CHILD SUPPORT OBLIGATION IN LIGHT OF APPELLEE'S RELOCATION. Osiatynski argues the court abused its discretion when it failed to provide for visitation during all school vacations and during the entire summer, to compensate for the time he is unable to visit with the children, and when it failed to modify the child support obligations to reflect the costs and expenses associated with Florida visitation. Schwartz contends the court did not err when it established the visitation schedule because the order provides for sufficient visitation, and a sharing between the parties of transportation costs for visitation. The issue then presented for our review is whether the trial court abused its discretion regarding Florida visitation. Dom.Rel.Loc.R. 18 provides visitation guidelines which state in relevant part: (1) the child's weekend visitation with the non- residential parent shall take place on (a) the first and third weekends, commencing on Friday night at 7:00 p.m. and concluding on Sunday night at 7:00 p.m., and (b) the second weekend on Friday, extending from 5:00 p.m. until 9:00 p.m., with no visitation required on the fourth weekend; (2) the child shall visit one day during the week with the non-residential parent, from 5:00 p.m. to 8:00 p.m.; (3) the child shall remain with the mother on Mother's Day and her birthday and with the father on Father's Day and his -8- birthday; (4) the child shall annually alternate visits with each parent on holidays; and (5) the non-residential parent shall have six (6) weeks of vacation visitation and the right to schedule this in periods of time extending from one to six weeks in duration. Here, the record reflects the court ordered the children to spend each national and major Jewish holiday alternating between parents, and awarded Osiatynski visitation any weekend during each month, and for six weeks during the summer. This order substantially complies with Dom.Rel.Loc.R. 18 visitation guidelines, and also considers the distance between the parties' residences. Therefore, it does not constitute an abuse of the court's discretion. Finally, the court ordered the travel costs to be divided equally between both parties and, thus, the court did not abuse its discretion when it failed to deviate from appellant's childsupport obligation. Accordingly, these assignments of error are overruled. Osiatynski's fifth assignment of error states: V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO FIND APPELLEE IN CONTEMPT OF COURT FOR HER DELIBERATE AND DESTRUCTIVE INTERFERENCE WITH APPELLANT'S VISITATION ON JULY 19 [sic], 1996. Osiatynski contends the court erred when it failed to find Schwartz in contempt for violating the visitation order on July, 29, 1996. Schwartz urges the court did not err in this regard since she did not deliberately violate the visitation order. -9- The issue for our review is whether the court abused its discretion in failing to find Schwartz in contempt for interfering with appellant's July 29, 1996 visitation. R.C. 2705.02 provides: A person guilty of any of the following acts may be punished as for a contempt: (A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer; * * *. A reviewing court will not reverse a judgment regarding contempt, as being against the manifest weight of the evidence, if it is supported by some competent, credible evidence. See Johnson v. Johnson (1991), 71 Ohio App.3d 713. Here, the record reflects that on July 29, 1996, Schwartz left her son Solomon at a local Pizza Hut while she attended a job interview. When Solomon found the wait intolerable, he telephoned his father twice, but the Pizza Hut employees became concerned and notified the Parma Police Department. The police took him into custody until his parents obtained his release in person. Because of that incident, Solomon did not timely visit that evening with his father, who subsequently filed a motion to show cause, arguing that Schwartz had violated the visitation order. The magistrate, however, found no contempt of court but, rather, concluded that the incident resultedfrom Schwartz's misjudgement and the inability of these two parents to solve problems of everyday life with regard to their children. Based upon our review of the record regarding this incident, we cannot conclude the court abused its discretion when it failed -10- to find Schwartz in contempt of court. Accordingly, this assignment of error is overruled. Osiatynski's seventh assignment of error states: VII. THE MAGISTRATE ERRED AND ABUSED HER DISCRETION IN MAKING THE DIVISION OF PROPERTY IN VIOLATION OF OHIO REV. CODE 3105.171 Osiatynski argues the court abused its discretion when it determined that a loan from Cherrie Mazer, in the amount of $8,842.00, constituted a marital debt; when it failed to order an appraisal of the marital residence; when it found that Schwartz successfully traced $8,000.00 of her separate property; when it failed to specifically order an award of his separate property contained in the marital residence; and when it determined that the proceeds from his personal injury lawsuit constituted marital property. Schwartz argues the court equitably determined and awarded separate and marital property. The issue then presented for our review is whether the court abused its discretion in this regard. Here, the record reflects that Cherrie Mazer testified she loaned $8,842.00 to Schwartz to pay for the children's tuition at Agnon School. The record also reveals that both Osiatynski and Schwartz stipulated to a $150,000 fair market value of the marital residence, six months before trial. The record also reflects that Schwartz owned a home in Texas prior to her marriage, and used $8,000.00 of its sale proceeds to purchase the parties' marital residence, which she successfully traced for the court. Since some -11- competent and credible evidence supports the court's relevant determinations, no abuse of discretion occurred in this regard. Regarding Osiatynski's claims that the court failed to award him his separate property, we note that in Baker v. Baker (1992), 83 Ohio App.3d 700, the court stated in relevant part: A court should not review discrete aspects of the property division out of the context of the entire award. * * * A court should consider whether the trial court's disposition of marital property as a whole resulted in a property division which was an abuse of discretion. Here,the record reflects that Osiatynski adduced no evidence at trial supporting his claims to separate property. Further, the record reflects that the magistrate recommended, and the court ordered, a substantially equal and equitable division of property. We, therefore, find no abuse of discretion regarding this matter and, accordingly, this assignment of error is overruled. Osiatynski's eighth assignment of error states: VIII. THE MAGISTRATE ERRED AND ABUSED HER DISCRETION IN THE AWARD OF GUARDIAN AD LITEM FEES. Osiatynski contends the court erred when it granted fees to the guardian ad litem, without first acquiring expert testimony regarding reasonableness, andwhen it ordered each party to pay one- half of those fees. Schwartz urges the court did not err in this regard. The issue then presented for our review is whether the court abused its discretion when it awarded guardian ad litem fees and ordered the parties to share these payments. Dom.Rel.Loc.R. 35(D) states in relevant part: -12- Guardians as litem shall be compensated at the rate of $85.00 per hour for in-court time and $60.00 per hour for out-of-court time * * *. The record reflects the court complied with this rule when it awarded guardian ad litem fees and, therefore, did not abuse its discretion. Accordingly, this assignment of error is overruled. Osiatynski's ninth assignment of error states: IX. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN CALCULATING APPELLANT'S CHILD SUPPORT OBLIGATION IN THAT SHE FAILED TO FOLLOW THE PROVISIONS OF OHIO REV. CODE STRICTLY, AS REQUIRED BY LAW. Osiatynski's argues the court erred when it calculated his income to be $40,000.00, since the evidence adduced at trial showed it to be only $31,855.00. Schwartz argues that, based upon Osiatynski's trial testimony, the court did not err in this regard. The issue then presented for our review is whether the court erred in calculating Osiatynski's income to be $40,000.00 for the purposes of calculating child support. R.C. 3113,215(A)(3) defines self-generated income as: * * * gross receipts received by a parent from self-employment, proprietorship of a business, joint ownership of a partnership or closely held corporation, and rents minus ordinary and necessary expenses incurred by the parent in generating the gross receipts * * *. Here, Osiatynski testified he anticipated his 1995 gross receipts, minus ordinary and necessary expenses, to be approximately $40,000.00. In light of this testimony, we conclude the court did not abuse its discretion by using this figure as his gross income -13- for purposes of calculating his child support obligation. Accordingly, this assignment of error is overruled. For her cross-appeal, Schwartz has presented four assignments of error for our consideration. The first cross-assignment of error states: I. AFTER THE TRIAL COURT DETERMINED THAT AN EQUITABLE DIVISION OF THE MARITAL PROPERTY SHOULD BE A SUBSTANTIALLY EQUAL DIVISION, THE TRIAL COURT MADE A MATHEMATICAL ERROR WHICH PREJUDICED APPELLEE. Schwartz contends that the court made a mathematical error when computing the value of the marital property, resulting in an inequitable property division, while Osiatynski denies this occurred. The issue for our determination here is whether the court erred in calculating the property settlement resulting in an inequitable division of the marital property. As we have already observed, a court should not review discrete aspects of the property division out of the context of the entire award but should, rather, consider whether the trial court's disposition of marital property as a whole resulted in a property division which was an abuse of discretion. Here, the court awarded Schwartz the marital residence (equity interest $11,051), the household goods worth $8,662.00, a 1989 Dodge Caravan worth $3,800.00, a Smith Barney account worth $3,000.00 and her own bank account. The court also awarded Osiatynski a 1989 Ford Tempo worth $1,000.00, his business worth only the income it produces, the net sum due under the settlement agreement of litigation worth $11,000.00, his interest in a Merrill Lynch account -14- belonging to his parents, bank accounts in his name which contain the same amount as those in Schwartz's name, and $1,188.00 in cash from Schwartz, to equalize the property division and offset his assumed portion of the marital debt. This division of property did not constitute an abuse of discretion when viewed in its entirety. Accordingly, this cross-assignment of error is overruled. The second cross-assignment of error states: II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING THE MAGISTRATE'S FINDING THAT THE HOUSEHOLD GOODS WERE VALUED AT $8,662.00, THAT THE NET PROCEEDS FROM THE LAWSUIT WERE $11,000.00 AND IN NOT FINDING THAT THERE WAS AN ADDITIONAL MARITAL DEBT OF $1,000.00. Schwartz argues that the court erred when it valued the household goods and the proceeds from Osiatynski's civil litigation, and when it failed to find additional marital debt. Osiatynski contends the court did not err in this regard. The issue then presented for our review is whether the court abused its discretion when it determined and valued the household goods, litigation proceeds and marital debt. Civ.R. 53(E)(3)(b) states in relevant part: * * * A party shall not assign as error on appeal the court's adoption of any finding of fact or conclusion of law unless the party has objected to that finding or conclusion under this rule. Here the record reveals that Schwartz failed to object to these findings and conclusions and, therefore, she may not assign them as errors. Accordingly, this cross-assignment of error is overruled. Schwartz's third cross-assignment of error states: -15- III. THE TRIAL COURT ERRED WHEN IT FAILED TO TAKE INTO ACCOUNT THE TAX CONSEQUENCES IN REGARD TO THE ANTICIPATED SALE OF THE MARITAL RESIDENCE. Schwartz argues the court abused its discretion when it failed to take into consideration the capital gains tax consequences that would be incurred upon the sale of the marital residence. Osiatynski contends the court did not abuse its discretion in this regard. The issue then presented for our review is whether the court abused its discretion by failing to calculate the tax consequences generated by the sale of the marital residence. R.C. 3105.171 (F)(6) requires the court to consider the capital gain tax consequences in its division of marital property. Here, a review of the record reveals that the magistrate, in its March 28, 1996 decision, did consider the potential capital gains tax into its division and distribution of the marital assets. However, since the record before us does not reveal if or when the family home has been sold, this assignment of error does not state a justiciable issue for our review and, accordingly, it is overruled. Schwartz's fourth cross-assignment of error states: IV. THE TRIAL COURT ERRED IN ONLY ORDERING APPELLANT TO PAY $76.50 PER MONTH ON AN ARREARAGE OF $5,077.27. Schwartz argues the court abused its discretion when it established Osiatynski's arrearage repayment schedule. Osiatynski does not address this assignment of error. The issue for our review is whether the court abused its discretion in this regard. -16- Here, the record reflects that the court ordered Osiatynski to pay $5,077.22 arrearage at a rate of $76.50 per month. We recognize this amount of money may require a long period of time to repay, but cannot conclude, based upon this record, that the court abused its discretion. Accordingly, this cross-assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. -17- It is ordered that a special mandate issue out of this Court directing the Domestic Relations 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. MATIA, P.J., and PORTER, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .