COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73094 ROBIN L. NEFF : : : Plaintiff-Appellant : : : -vs- : JOURNAL ENTRY : AND JOHN F. NEFF : OPINION : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 30, 1998 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court, Div. of Domestic Relations, Case No. C.P. D-239598 JUDGMENT : Affirmed in part, reversed in part and remanded. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Jacob A. H. Kronenberg, Esq. Janet L. Kronenberg, Esq. Kronenberg & Kronenberg 410 Midland Building 101 Prospect Avenue West Cleveland, Ohio 44115-1092 For defendant-appellee: Melinda J. Annandale, Esq. 21010 Center Ridge Road Suite 200 Rocky River, Ohio 44116 MICHAEL J. CORRIGAN, J.: Plaintiff-appellant, Robin Neff, appeals the decision of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, -2- which awarded overnight visitation privileges to defendant- appellee, John Neff. Plaintiff-appellant also appeals the trial court's calculation of child support. This court, finding error, affirms in part and reverses in part the decision of the trial court. Plaintiff-appellant and defendant-appellee were married on July 17, 1988. They have one daughter born as issue to their marriage, to-wit: Sarah, born on October 11, 1988. During their marriage, their household also contained plaintiff-appellant's daughter from her prior marriage, Abigail, who was born on June 14, 1983. On March 29, 1995, plaintiff-appellant filed a complaint for legal separation and a domestic violence petition. Plaintiff- appellant sought and was granted a temporary protection order and temporary custody of Sarah. A hearing was set for April 7, 1995. On that day, the parties submitted an Agreed Judgment Entry which did not address the allegations of domestic violence. The agreement continued the temporary protection order with other modifications including visitation for John and Sarah on Wednesday evenings and Sunday afternoons. After a number of continuances, a trial was held before a Magistrate on December 16 and 19, 1996. On February 7, 1997, the Magistrate filed her decision. Plaintiff-appellant filed her objections to the Magistrates report. The trial court overruled plaintiff-appellant's objections and adopted the Magistrate's opinion in its entirety. Plaintiff-appellant timely filed this appeal. -3- Plaintiff-appellant's first assignment of error states: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ITS DETERMINATION THAT THE DEFENDANT WAS ENTITLED TO OVERNIGHT VISITATION WITH THE PARTIES' MINOR CHILD. Plaintiff-appellant argues the trial court abused its discretion in permitting overnight visitation rights to defendant- appellee. Specifically, plaintiff-appellant argues she has presented clear and convincing evidence of several examples of uncontrollable rage by defendant-appellee establishing it would be in the child's best interest to have visitation only in the daylight hours where the risk of physical/emotional harm is reduced. It is well established that a trial court has broad discretion in determining matters related to visitation. See Appleby v. Appleby(1986), 24 Ohio St.3d 39. The trial court's discretion must be exercised in a manner which best protects the interest of the child. Bodine v. Bodine (1988), 38 Ohio App.3d 173. Accordingly, where there is clear and convincing evidence that a proposed visitation arrangement will be harmful to the welfare of the children, a trial court abuses its discretion in failing to impose sufficient restrictions to ensure the child's well-being. Bodine, supra. Stated differently in Pettry v. Pettry (1984), 20 Ohio App.3d 350: 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. -4- The burden of proof in this regard is on the party contesting visitation privileges. In this case, there was undisputed evidence of the violent nature of the parties relationship. The couple attended a family violence progam. However, as the Magistrate correctly noted in her decision, there is no evidence establishing any physical violence directed at the children. More importantly, the record supports the Magistrate's finding that the child had a good relationship with both of her parents: There is no evidence that the minor child's interaction and interrelationship with her mother is other than good ***. As observed by John J. Winchester, Director of the Court's Family Conciliation Service, the child has a strong bond with her father and interacts well with him. Her paternal grandfather has observed a happy and affectionate child when she is in the company of her father. While each parent has accused the other of engaging in domestic violence against her or him, neither has been convicted nor pled guilty to domestic violence pursuant to R.C. 2919.15. We find the fact that there has been an alleged history of spousal abuse and violent behavior between the two parties in the past is not grounds, in and of itself, to deny visitation rights. See In re Whaley(1993), 86 Ohio App.3d 304. This is especially true in light of the Magistrate's findings. Moreover, assuming arguendo defendant-appellee had episodes of uncontrollable rage in the past, there has been no evidence presented which would suggest that these incidents would be more likely to occur during an overnight visit as opposed to a full day -5- visit to which plaintiff-appellant does not object. We find plaintiff-appellant's reasoning on this point to be tenuous. For all of the above stated reasons, we find after a complete review of the record that the trial court's decision to adopt the Magistrate's report concerning visitation was not an abuse of discretion. Plaintiff-appellant's first assignment of error is not well taken. Plaintiff-appellant's second assignment of error states: II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DETERMINATION OF THE DEFENDANT'S INCOME FOR PURPOSES OF CALCULATING CHILD SUPPORT. Plaintiff-appellant argues the trial court erred in calculating child support. Specifically, plaintiff-appellant argues the means by which defendant-appellee's income was determined for purposes of child support were in contravention of R.C. 3113.215(B)(5)(a), i.e., through the use of incomplete financial records. We agree. R.C. 3113.215(B)(5) states in pertinent part: When a court computes the amount of child support required to be paid under a child support order or a child support enforcement agency computes the amount of child support to be paid pursuant to section 3111.20, 3111.21, or 3111.22 of the Revised Code, all of the following apply: (A) The parents shall verify current and past income and personal earnings with suitable documents, including, but not limited to, paystubs, employer statements, receipts and expense vouchers related to self-generated income, tax returns, and all supporting documentation and schedules for the tax returns. -6- In this case, at the 1996 hearing, defendant-appellee supplied the Magistrate with 1987 and 1988 tax returns. Defendant-appellee stated he made no subsequent filings. He also provided a summary of gross income , paychecks, and expenses for a three month period in 1996 with the suggestion that the Magistrate multiply the figure by four to attain his 1996 annual income. The Magistrate noted it was unclear whether or not this summary represented his gross receipts or gross income. The Magistrate concluded: There being little credible evidence upon which to establish Defendant's present income, an average of the two years for which tax data was presented and the calculated sum from figures provided by Defendant for a quarter of 1996 will be used for purposes of computing appropriate child support. While the Magistrate attempted to reach an appropriate income figure with the meager financial information presented by defendant-appellee, we find the evidence insufficient to support an award of child support which is in the best interest of the child despite the best efforts of the Magistrate. See Leonard v. Erwin (1996), 111 Ohio App.3d 413; Bowen v. Thomas (1995), 102 Ohio App.3d 196. Defendant-appellee has been self employed in landscaping and snow plowing for many years. He testified that his work has been relatively steady and similar since 1988. If this is the case, then there is no excuse for his inability to provide sufficient, current financial information necessary for the computation of child support pursuant to R.C. 3113.215. In this case, defendant-appellee's failure to provide the necessary financial information renders the decision of the -7- Magistrate, and trial court, arbitrary and therefore an abuse of discretion. See, also, Aiello v. Aiello (Sept. 11, 1996), Seneca App. No. 13-96-12, unreported. For these reasons, plaintiff- appellant's second assignment of error is well taken. Upon remand, the trial court is instructed to compel the production of sufficient financial records pursuant to R.C. 3113.215. Judgment affirmed in part, reversed in part and remanded. -8- It is ordered that the parties shall share equally the 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 Cuyahoga County 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. JOSEPH J. NAHRA, P.J., AND JOHN T. PATTON, J., CONCUR. JUDGE MICHAEL J. CORRIGAN 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 journalization of this court's announcement of decision by the .