Opinion

Derrit v. Derrit

  • 163 Ohio App. 3d 52
  • 2005 Ohio 4777
  • 836 N.E.2d 39
Court
Ohio Court of Appeals
Filed
Sep 9, 2005
Status
Published
Author
Grendell
On the bench
O'Toole, Ford, Grendell
Cited by
19 cases

noting that living expenses of a party are not one of the specifically enumerated statutory factors

How later courts described this case

  • noting that living expenses of a party are not one of the specifically enumerated statutory factors

Written by the judges who cited it.

The opinion

Grendell, Judge,

concurring in part and dissenting in part.

{¶ 78} I concur with the majority’s rulings on appellant’s first and second assignments of error, as well as appellee’s first and second assignments of error on cross-appeal. However, I disagree with the majority’s rulings on appellee’s third and fourth assignments of error on cross-appeal and respectfully dissent as to those rulings.

{¶ 79} As to appellee’s third assignment of error, the trial court found that appellee “took $15,548.” Such unilateral taking of marital funds constitutes

*69

“financial misconduct” under R.C. 3105.171(E)(3). See, also,

Donato v. Donato

(June 26, 1998), 11th Dist. No. 96-L-224, 1998 WL 553025 , at *4-5, 1998 Ohio App. LEXIS 2925 , at *13-14 (courts may find financial misconduct in cases where marital assets are unilaterally dissipated, even if such dissipation occurs during the course of the marriage). There was, and is, no need for the trial court to state the obvious — one spouse’s unilateral appropriation of marital assets for his or her individual use is financial misconduct. Moreover, such conduct also constitutes “dissipation” of marital assets. R.C. 3105.171(E)(3);

Donato,

11th Dist. No. 96-L-224, 1998 WL 553025 , at *4-5, 1998 Ohio App. LEXIS 2925 , at *13-14. No further explanation by the trial court is required. Appellee’s third assignment of error on cross-appeal is without merit.

{¶ 80} Likewise, appellee’s fourth assignment of error on cross-appeal has no merit. The trial court granted appellant custody of the parties’ minor children. As the majority correctly notes: “ ‘[I]n the absence of any indication to the contrary, [this court] will assume that the trial court considered all of the relevant factors’ which must be reviewed in determining the best interest of a child.”

Pickett v. Pickett,

11th Dist. No. 2001-L-136, 2002-Ohio-3128 , 2002 WL 1357163 , at ¶ 33, quoting

Sickinger v. Sickinger

(Apr. 5, 1996), 11th Dist. No. 95-A-0046, 1996 Ohio App. LEXIS 1428 , at *11.

{¶ 81} Neither appellee nor the majority provides any legitimate “indication to the contrary” warranting this court’s disregard of the presumption of propriety expounded in

Pickett .

Despite

Pickett

and the absence of a contrary indication, the majority ignores the presumption of propriety and shifts the burden onto the trial court “to provide a basis for its [custody] determination.” The majority further rules that the court’s “failure to provide a basis for its custody designation results in an abuse of discretion.” I disagree. The majority’s rulings conflict with this court’s prior rulings in

Pickett

and

Sickinger .

Appellee’s fourth assignment of error on cross-appeal should be overruled.

{¶ 82} Accordingly, I concur in part and dissent in part, as noted above.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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